1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant-GSRTC herein has challenged the award dated 12.05.1994 passed by the Motor Accident Claims Tribunal (Special),Baroda in Motor Accident Claims Petition No. 215 of 1987 so far as the Tribunal awarded Rs. 67,400/- as compensation with interest at 12% per annum.
3. It is the case of the appellant-GSRTC that on 20.11.1986 while the claimant was driving rickshaw bearing registration no. GRQ 689, an S.T bus bearing registration no. GRR 8483 being driven by the original opponent no. 1 in a rash and negligent manner, dashed with the rickshaw. The claimant therefore filed claim petition seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. Hemant Shah, learned advocate appearing for the appellant-Corporation submitted that the Tribunal erred in attributing total negligence on the part of the S.T bus driver looking to the position of the road, panchnama and other evidence on record. He submitted that the claimant has admitted in the cross examination that a matador was ahead of the rickshaw and hence the question of overtaking by the bus driver does not arise.
4.1 Mr. Shah has drawn the attention of this Court to the map of the scene of offence and submitted that it is clear that the width of the road was 22 ft and the brake marks were for 35 ft of both the wheels of the bus. He submitted that the bus was going from east to west whereas the rickshaw was going from west to east and after the collision the rickshaw turned towards west. Mr. Shah submitted that it cannot be said that the S.T bus was completely negligent and even if negligence on the part of the bus driver is considered, it cannot be more than 40% considering the position of the bus and rickshaw after the accident and the speed of both the vehicles.
5. Mr. Hakim, learned advocate appearing for the rickshaw driver-claimant strongly supported the award passed by the Tribunal and submitted that the Tribunal has passed the award after considering the evidence in detail and the same does not call for any interference by this court. He submitted that the rickshaw driver cannot be said to be negligent as there is no oral testimony against the rickshaw driver by any of the passengers. He submitted that it is clear from the evidence that after the bus hit the rickshaw, it turned completely and changed its position.
5.1 In the alternative, he submitted that assuming without admitting that there was any negligence on the part of the rickshaw driver, the negligence cannot be more than 25% considering the facts and circumstances of the case. He submitted that without prejudice to his rights and contentions, the rickshaw driver being a smaller vehicle cannot be attributed 60% negligence in an accident which involved an S.T. Bus which was in fact driven rashly and negligently.
6. As a result of hearing and perusal of records, more particularly, the impugned award and the documents on record, it is borne out that the accident occurred as a result of negligence of both the vehicles. The law probability comes into play in such cases. The road was around 22 ft wide. The bus was going from eastern direction to western direction and the rickshaw was coming from the opposite side meaning from west to east. It is clear that a matador was going before the rickshaw and the rickshaw tried to overtake the matador and went on to hit the bus coming from the opposite direction thereby turning and stopping towards west. The left wheel of the bus was on the correct side of the road.
6.1 The width of the bus is around 7 ft whereas the width of the rickshaw is around 5 ft. Therefore, considering 22 ft width of the road, the bus had around 4 ft space available and the rickshaw had around 6 ft space available out of 11 ft for each vehicle. The rickshaw therefore seems to have gone 100% of the permissible limit in order to overtake the matador whereas the bus driver has gone only to the extent of 57% of the permissible limit. Moreover, from the chart under the braking tests, it is clear that when the bus stopped at 35 ft distance after applying brakes, it was being driven at around 40-45 kmph speed. Therefore it cannot be said that the bus driver was completely negligent.
6.2 In that view of the matter, considering the facts and circumstances of the case and the aspect of bus being greater vehicle, it would be in the interest of justice to apportion contributory negligence of 60%-40% on the bus driver and the rickshaw driver. As far as quantum is concerned, the award is just and proper and no interference is called for.
7. In the premises aforesaid, appeal is partly allowed. The claimants shall be entitled to 60% of the compensation awarded by the Tribunal. The remaining 40% of the amount shall be refunded to the Tribunal. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//