FA/808/1983 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 808 of 1983 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= GUJ STATE ROAD TRANSPORT CORPN - Appellant(s) Versus DIVALIBEN WD/O DEVJIBHAI MAVJIBHAI GALATHIYA & 6 - Defendant(s) ========================================================= Appearance : MR HARDIK C RAWAL for Appellant(s) : 1, MR PV HATHI for Defendant(s) : 1 - 5. NOTICE NOT RECD BACK for Defendant(s) : 6, MS MAYA S DESAI for Defendant(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/04/2008 ORAL JUDGMENT 1. The original opponent no. 1-S.T Corporation has filed this appeal challenging the judgement and award dated 08.07.82 passed by the Motor Accident Claims Tribunal (Main), Junagadh in MACP No. 40 of 1981 whereby the Tribunal awarded a sum of Rs. 60,000/- by way of compensation payable to the original claimants by the original opponents nos. 1 & 2. FA/808/1983 2/6 JUDGMENT 2. The original claimants had filed claim petition claiming compensation to the tune of Rs. 65,000/- in respect of the death of one Shri Devjibhai Manjibhai on account of the accident which occurred on 10.09.79 near village Moruka while the now deceased Devjibhai as about to board bus no. GTE 5902 belonging to the opponent corporation. Being night halt for the bus, it was parked on the spot of the accident the previous evening itself. The now deceased before entering the bus went on its roof for putting his luggage. Just hanging above the roof was a live electric wire for power transmission. The now deceased while occupied in putting his luggage on the roof came in contact with this wire and was electrocuted and died on the spot. The original claimants who are the widow and children of the now deceased Devjibhai filed claim petition under the said circumstance. The Tribunal after hearing the parties passed the aforesaid award. 3. Mr. Hardik Rawal, learned advocate appearing for for the original opponent no.1 has contended that the Tribunal has committed an error in holding that FA/808/1983 3/6 JUDGMENT the victim received injury as a result of the negligence of the original opponent no.2-driver. He has further contended that the Tribunal has erred in not appreciating the glaring fact that claims tribunal overlooked the fact that it was also the duty of the passenger to see while climbing the roof to see that he avoids touching the electric wire. 3.1 Mr. Rawal has also contended that the claims tribunal has not considered the case of contributory negligence both of the Gujarat Electricity Board and also of the deceased. He has submitted that the tribunal overlooked the fact that there were over head wires from the which the electric shock was received by the deceased and negligence if any would be of the Gujarat Electricity Board, which had the duty and care towards the public to maintain safe electric wiring. 4. 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. 7 & 8 has gone through the evidence in detail and has FA/808/1983 4/6 JUDGMENT come to the conclusion that the original opponent no.1 & 2 are responsible for the said incident. The said paras are reproduced as under: “7. We have the deposition of the applicant no.1, the widow, who was not present at the spot when the incident occurred. Her deposition, therefore, will not be of much use for our purpose. The postmortem note produced at ex. 25 clearly contains the opinion of the doctor Shri J.R. Hansalia to the effect that the deceased died because of electric shock. Inquest panchnama produced at ex. 24 is also to that effect. It cannot be denied that there were over-hanging power lines just above the roof. Even the opponent no.2 in his deposition, ex. 29, admits that the deceased was lying dead on the roof of the bus because of electric shock. This he has stated in para 3 of his examination-in-chief. He has further stated that the electric wires were 5 ft. above the roof approximately. In the cross-examination he has admitted that the spot where the incident occurred is the usual place of parking of the buses. The exact distance between the over-hanging wires and the roof of the bus is given in panchnama, ex. 24 and it is 4½ ft. 8. In view of the aforesaid evidence it is clear that the deceased died due to electric shock. The source is also not clearly established. It was just 4½ ft above the roof. It is not disputed at all that the deceased had to climb the roof because he had heavy luggage with him. It is an accepted position that passenger travelling in a bus can carry luggage with him only FA/808/1983 5/6 JUDGMENT upto an extent and if it happens to be a bulky or heavy thing, it has to be put on the roof of the bus. Leaving aside the question whether the opponent no.1 – the Corporation that runs the services should have instructed its conductor or should have provided some facility like labourers etc. for getting such articles put on the roof of the bus through its agencies, obviously it is the passenger who was required to go on to the roof.” 4.1 The Tribunal has observed that the incident clearly happened because the bus was parked in this manner and that no care was taken to see that if a person happens to climb over the roof, he may not have been exposed to such unexpected hazards. This having not been done, there will be total negligence on the part of the opponent no.2-driver as a result of which there can be no dispute about the vicarious liability of the opponent no.1-Corporation. 4.2 Therefore the original opponent no.1 cannot be absolved from the liability to pay compensation in respect of the damage caused to the original claimants to the extent of the negligence of the original opponent no.2. I am in complete agreement with the reasonings adopted and findings arrived at FA/808/1983 6/6 JUDGMENT by the tribunal and therefore see no reasons for interference in the award. 5. In the premises aforesaid, appeal is dismissed. No order as to costs. (K.S. JHAVERI, J.) Divya//