FA/1480/1990 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1480 of 1990 With FIRST APPEAL No. 1481 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= G.S.R.T. CORPORATION - Appellant(s) Versus RAMILABEN MOHANBHAI BHAMBHAI & 6 - Defendant(s) ========================================================= Appearance : MR MD PANDYA for Appellant(s) : 1, MR AM RAVAL for Defendant(s) : 1 - 3. None for Defendant(s) : 4, MR RR MARSHALL for Defendant(s) : 5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/04/2008 COMMON ORAL JUDGMENT 1. By way of First Appeal No. 1480 of 1990, the original opponent no. 5-S.T Corporation has challenged the judgement and award dated 01.01.1990 passed by the Motor Accident Claims Tribunal (Auxi), Sabarkantha in MACP No. 6 of 1988 whereby the Tribunal awarded a sum of Rs. 78,000/- by way of compensation payable to the original claimants by the FA/1480/1990 2/6 JUDGMENT original opponents. 2. By way of First Appeal No. 1481 of 1990, the original opponent no. 5-S.T Corporation has challenged the judgement and award dated 01.01.1990 passed by the Motor Accident Claims Tribunal (Auxi), Sabarkantha in MACP No. 411 of 1988 whereby the Tribunal awarded a sum of Rs. 10,000/- by way of compensation payable to the original claimants by the original opponents. 3. Both the motor accident claims petitions have arisen in the vehicular accident which had occurred on 13.09.87 on Badoli-Bhiloda road while the now deceased Mohanbhai Ramabhai was going in jeep taxi bearing no. GRT 349 from Idar to his native place Nava Revas. At that time the original opponent no.1 driving S.T. Bus bearing no. GRT 8087 all of a sudden applied brake without giving any signal or caution and slowed down his S.T. Bus as a result of which the jeep taxi coming from behind dashed on the right side of the S.T bus. The jeep then went ahead to dash with the nilgiri tree on the right side. The victim FA/1480/1990 3/6 JUDGMENT received injuries and was taken to Idar hospital. He however succumbed to his injuries. The original claimants of First Appeal No. 1480 of 1990 who are the widow and parents of the now deceased Mohanbhai filed claim petition under the said circumstance. 3.1 So far as Appeal no. 1481 of 1990 is concerned, the original claimant of MACP 411 of 1987 who was 17 years old was going for cutting grass for the cattle and they were on the left side of the road. At that time the taxi in question dashed with the applicant and she was crushed between the two wheels of the jeep. She sustained severe injuries and received permanent partial disability. The Tribunal after hearing the parties passed the aforesaid award. 4. Mr. Pandya, learned advocate appearing for the original opponent no.5 has contended that the Tribunal has committed an error in apportioning the negligence of the S.T bus driver and the jeep at 20% and 80% respectively. He has submitted that the Tribunal has erred in not holding that the accident was solely attributable to the sole negligence of the FA/1480/1990 4/6 JUDGMENT driver of jeep taxi and in not holding that the liability has to be fastened only on the shoulder of the driver of the jeep taxi, owner and its insurer. 5. Heard learned counsel for the parties and gone through the materials placed on record including the award of the Tribunal. The Tribunal in para nos. 8 & 9 has observed that as per the version of the jeep driver the gap between the S.T bus which was ahead of the jeep and the jeep was about 60-65 feet. It is observed that even the driver of the jeep has stated that he has tried to apply the brake but he could not control his vehicle which shows that he was driving with excessive speed. In that view of the matter, this Court is of the view that if the jeep driver had driven his jeep with normal speed in that case he would have immediately controlled the speed of the vehicle and on seeing the S.T bus driver applying brakes he also could have slowed down his jeep. However, the same has not been done even though the distance between both the vehicles was about 65 feet. In that view of the matter, the liability of the S.T bus driver does not arise in the present case and the FA/1480/1990 5/6 JUDGMENT jeep driver is the person required to be solely held responsible for the accident in question. 5.1 In that view of the matter, no negligence is required to be apportioned on the part of the S.T. Bus driver and the award of the Tribunal is required to be modified accordingly. 6. First Appeal No. 1480 & 1481 of 1990 are allowed accordingly. The original opponent no.5-S.T Corporation is absolved from the its liability to pay compensation to the original claimants of MACP 6/1988 & MACP 411/1988. The award of the Tribunal is quashed and set aside qua liability of the present appellant-ST Corporation. It is made clear that the original claimants of MACP 6/1988 & MACP 411/1988 shall be entitled to recover the amount which was liable to be paid by the ST Corporation from the owner of the jeep and the insurance company. It is stated by Mr. Pandya that as per the order of this Court hundred percent amount has been deposited by the S.T Corporation and in that view of the matter full amount be refunded by the Insurance Company if the same is withdrawn by the claimant. The amount deposited, by the ST Corporation by way of FDR FA/1480/1990 6/6 JUDGMENT shall be refunded if it is not withdrawn by the claimants. However, if the said amount has been withdrawn by the original claimants, it will be open to the corporation to recover the same from the insurance company and the same shall be paid by the insurance company within a period of 12 weeks. No order as to costs. (K.S. JHAVERI, J.) Divya//