1. Heard learned advocate Ms.Archana N.Patel, learned advocate appearing on behalf of learned advocate Shri Hardik C. Raval, learned advocate for the appellant. Though served none is present for the respondents.
2. The appellant-opponent No.2 Gujarat State Road Transport Corporation in M.A.C.P. No.475 of 1990, has approached this Court by way of this Appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 7.5.1999, partly allowing the claim and awarding Rs.2,55,120/- (Rupees Two Lakhs Fifty Five Thousand One Hundred Twenty only) to the applicants-claimants with interest at the rate of 12% per annum from the date of the application till realisation of the amount with proportionate costs for the reasons stated thereunder.
3. The facts in brief leading to filing of this appeal deserves to be set out as under :-
3.1 On 26.1.1989 in the noon, S.T. Bus bearing registration No.GRT-6909 owned by the appellant and driven by its employee-(opponent No.1 in the claim petition), was responsible for hitting auto-rickshaw, which resulted into death of auto-rickshaw driver. Hence, claim petition, which came to be filed by the dependants and the claimants, was partly allowed vide judgment and award dated 7.5.1999 as stated hereinabove and the same is assailed in this appeal on the grounds mentioned in the memo of appeal.
4. As it is stated hereinabove though served, none appears for the respondents.
5. The Court, while admitting the matter, granted interim relief on execution and operation of the award on a condition of depositing the amount.
6. Learned advocate for the appellant has contended that the Tribunal ought not to have been held driver of the bus to be 100% responsible and on that basis fasten liability for paying compensation by the Corporation. She further submitted that the evidence on record goes to show that the auto-rickshaw was going from wrong side and despite due care and caution, the accident occurred.
7. This Court heard learned advocate for the Corporation at length and after perusing the evidence on record, is unable to agree with the submission canvassed on behalf of the appellant for the following reasons.
7.1 Learned Tribunal has unequivocally recorded that the incident occurred at a curve on the highway. The driver of the bus was dismissed from service and it is also admitted that after the accident, the bus was on the wrong side. The deposition of the driver and the findings recorded by the Tribunal do not suggest anywhere that the deceased auto-rickshaw driver was at fault in any manner. The evidence on record goes to show that the deceased auto-rickshaw driver cannot be said to be in any way negligent in driving the auto-rickshaw.
8. Learned Tribunal relying upon the decision in the case of Harji Virji Transport vs. Basiranbibi,12 G.L.R. 783(786) has held that the burden was upon the vehicle owner and driver to prove negligence on the part of the deceased rickshaw driver. The said burden was not discharged successfully and, therefore, this Court is also not in a position to accept the submission of the learned advocate for the S.T. Corporation that the driver was responsible in any manner for the accident in which he died. The submission with regard to applicability of the multiplier of 15 is also not capable of being accepted in view of the fact that the driver was of 20 years of age.
9. In view of the facts and circumstances of the case, the appeal does not deserve to be entertained and deserves rejection. Hence, appeal is accordingly rejected.
(S.R.Brahmbhatt, J.) sudhir Top