Ashish Sureshbhai Parikh & 1 vs Indravadan Ambalal Parmar Defendants

1.0 This appeal is directed against the judgement and award dated 10th March 2000 passed by learned Motor Accident Claims Tribunal (Auxi), Ahmedabad in Motor Accident Claim Petition No.128/1993 whereby the Tribunal has awarded a sum of Rs.1,29,980/­ along with interest at the rate of 12% per annum.

2.0 On 23.2.1993, the appellant­original opponent No.1 who was serving in Bank, was returning on his scooter towards Hatkesh Chowky to Memnagar. At that time a Maruti Van bearing No.GJ­1­T­3273 came and dashed with the rear portion of the scooter. The claimant fell down and sustained grievous injuries. He has taken prolonged treatment. Therefore he filed the aforesaid claim petition wherein the aforesaid award came to be passed.

3.0 Learned Advocate for the appellant submitted that the accident has occurred on account of rash and negligent driving of the claimant. According to the learned Advocate, the claimant was overtaking the Maruti Van from left hand side and therefore he himself was rash and negligent in driving of his scooter.

4.0 Learned Advocate for the respondent submitted that the the Tribunal has considered all the aspects of the matter and therefore no interference may be caused.

5.0 As a result of hearing and perusal of the record, it is found that the Tribunal has considered the aspect of negligence in greater detail. The finding of the Tribunal is as under:

“10. The opponent No.1 Ashish Sureshbhai Parikh is examined at Exh. 60 HE has stated that on 23.02.1993. He was going towards St. Xavier's Loyela School by driving Maruti Van and he was driving the van and driver was beside him and he was driving the van with moderate speed and at that time there was no traffic on the road and Maruti Van was on left hand side of the road and it was at a distance of 6 feet from the tar road and the width of the road is 25 feet at the place of occurrence. According to me, if the opponent No.1 was driving the vehicle with moderate speed and if he was at a distance of 6 feet from the tar road then the accident cannot take place. Moreover, there was no traffic on the road and, therefore, opponent No.1 could have driven his Maruti van in the middle of the road or by keeping some distance from the scooter but he had dashed van with the scooter and therefore,it is clear that in fact the opponent No.1 was rash and negligent in driving. He has tried to say that one scooter driver had come from his left hand side and he had overtaken the Maruti Van. According to me, the scooter driver was on his correct side of the road and he was on left hand side of the road and the Maruti Van was also on the left hand side of the road and therefore, there is no question of overtaking the Maruti Van. He has also tried to say that one rickshaw was going ahead but there is nothing in the complaint or any other evidence that one rickshaw was going ahead before the Maruti Van. He has also tried to say that the scooter driver was also going ahead. It shows that on one hand he has tried to say that the scooter driver had come from his behind and on other hand he has stated that scooterist was going ahead from his Maruti Van. He has also stated that the rickshaw driver had suddenly applied the break and therefore,the scooterist had taken his scooter toward Maruti Van and therefore, the accident has taken place. According to me there is no mention in the panchnama that there was any break mark on the road. It shows that the story of rickshaw is after thought. However, he has stated that the left hand side portion of the van had dashed with the scooter. He has also stated that no horn was blown or no signal was given by the scooterist. According to me there is no question of blowing horn or there is no question of giving signal, as the applicant was going on his scooter on correct side of the road. He has admitted that police case was filed against him and he had pleaded guilty but he has stated that as he had to go in foreign county in Australia, therefore, he had pleaded guilty. According to me, this is not believable and it is not acceptable. He has stated in his cross examination that he was 20 years old at the time of accident. It show that he was having full experience of driving. He has also admitted in his cross examination that vehicles are passing and re­passing on the said place of occurrence and there were no office hours and the way was quite clear at the time of accident. According to me if there were no office hours and way was clear then there cannot be any accident as there was sufficient space for taking van in the middle of the road for avoiding accident if the scooter had come towards his. Hence, the story which is given by the opponent No.1 is not believable. Thereafter, he has stated that he was driving the car with the speed of 40 K.M.P.H. According to me the opponent No.1 was rash and negligent in driving as there was no such heavy traffic and therefore,he must be in full speed as there was no obstacle for him for driving the van. In view of the above, the petitioner has proved that the accident occurred on account of rash and negligent driving of opponent No.1. Hence, I hold issue No.1 in the affirmative.”

6.0 As regards the quantum is concerned, the claimant had stated that he remained in hospital as indoor patient for 20 days. There was fracture on his left leg and his leg was under plaster for 1­ ½ months and he was advised to take rest for two months. He had also taken physiotherapy treatment for three months. After considering the evidence on record the Tribunal held that the disability is at 8%. As regards the monthly income is concerned, there is no dispute about the same. Further the multiplier taken is 15, which is also just and proper on the facts and circumstances of the case. I have also considered the amount awarded under heads which cannot be said to be unreasonable. Therefore learned Advocate for the appellant is not in a position to assail the judgement even on quantum aspect.

7.0 However, the Tribunal had directed that if the amount is not deposited within three months from the date of the award, the interest would be at the rate of 15%. I consider that this direction was not justified. Accordingly the direction of payment of interest at the rate of 15% is quashed and set aside. The rate of interest will be only at 12% per annum. The appeal is allowed to the aforesaid extent with no order.

(K.S.JHAVERI, J.) niru*