1. Heard learned advocate Mr.H.J.Trivedi for appellant GSRT Corporation and learned advocate Mr.A.C.Nanavati for respondent claimant in two appeals, learned advocate Mr.B.K.Oza for respondent claimant driver and owner of auto-rickshaw and learned advocate Mr.S.C.Sharma for respondent claimant in FA No.6835 of 2009.
2. The appellant Corporation has challenged common award passed by MAC Tribunal, Gandhinagar in MACP No.1518, 1577, 1523 (97/2005), 1524 and 1553 of 1992, decided on 31.8.2005. The claims Tribunal has awarded Rs.1,59,400/- in MACP No.1518/1992 and Rs.2,89,060/- in MACP No.1577/1992, Rs.19,800/- in MACP No.1523/1992, Rs.17,000/- in MACP No.95/2005, Rs.13,500/- in MACP No.1524/1992 and Rs.18,600/- in MACP No.153/1992 with 9% interest in favour of respondents claimants.
3. In MACP Nos.1523/1992, 97/2005, 1524/1992 and 15531/992, petty amount is under challenge which is less than Rs.25,000/-, therefore, these 4 appeals are not entertained by this Court only on the ground that petty amount are under challenge. Accordingly, aforesaid 4 appeals are disposed of without considering merits of matter.
4. Now, this Court is examining contentions raised by learned advocate Mr.Trivedi in respect to two award where Rs.1,59,400/- in MACP No.1518/1992 and Rs.2,89,060/- in MACP No.1577/1992 is awarded.
5. Learned advocate Mr.Trivedi has raised contention before this Court that claims Tribunal has committed gross error in deciding question of negligence between ST bus driver and auto-rickshaw driver. He also submitted that there was composite negligence of both drivers and therefore, both drivers are negligent to the extent of 50%-50% and if that is not accepted, then it was a case of contributory negligence of auto-rickshaw driver and that has also not been properly appreciated by claims Tribunal. Therefore, first appeals are filed challenging the award in question.
6. The accident occurred on 12.10.1992 when auto-rickshaw No.GRU 2201 coming from Ahmedabad to Kalol highway near Ambapura patiya in evening, at that occasion, one ST Bus No.GRU 6784 coming from Ahmedabad to Kalol dashed to auto-rickshaw and due to that, three persons received injuries and out of them, two persons have expired and one sustained injuries. For that, claim petitions are filed by claimants before claims Tribunal. Before claims Tribunal against claim petition, ST Corporation has filed reply as well as driver of auto-rickshaw and owner have also filed jointly reply. Thereafter, issues have been framed by claims Tribunal. There is no dispute between the parties in respect of accident occurred on 12.10.1992. The question of deciding negligence of either bus driver or auto-rickshaw driver, claims Tribunal has considered the complaint filed before police by one claimant Vasantlal Shastri at Exh.49. The panchnama is also produced vide Exh.50 and PM report and injury certificate also produced before claims Tribunal. Thereafter, driver of auto-rickshaw Dinkar Chauhan was examined vide Exh.33 and driver of ST bus was also examined vide Exh.46 and one passenger of ST bus Sunitaben A. Dantani was examined vide Exh.56 and one injured passenger Vasantlal C. Shastri, who has filed complaint, was examined vide Exh.11. These witnesses have given clear picture as to how accident occurred between ST Bus and auto-rickshaw. The driver of auto-rickshaw has stated before claims Tribunal that when he was coming from Kalol to Ahmedabad in auto-rickshaw, three passengers were travelling with a slow speed and on correct side and when said auto-rickshaw reached to Ambapur patiya, one ST Bus coming from opposite side going to Ahmedabad to Kalol and driver of ST Bus had lost control over steering and come on wrong side and dashed to auto-rickshaw, that is how accident occurred. The ST Bus driver was examined vide Exh.46 and according to him, there was a negligence of auto-rickshaw driver and accident is occurred. The evidence of bus driver suggests that his bus was going on correct side with a slow speed, one scooterist was going ahead and one truck is also ahead to scooter, therefore, truck driver has all of a sudden stopped the vehicle and that is how scooter rider has also applied the break all of a sudden and took turn on right side and that is how ST bus driver has applied break and due to that break, his bus went on wrong side and dashed to auto-rickshaw. So, according to ST bus driver, he has made sufficient efforts to save accident but he was not able to save it and ST Bus ultimately turned turtled. From panchnama, it appears that one scooterist was going ahead from bus is established and that fact has also been admitted by ST bus driver. The evidence of bus driver is not accepted by claims Tribunal simply on the ground that if the bus was going with slow speed and truck driver has applied all of a sudden break and due to that, scooterist has also applied break and took turn on right side, due to that bus driver has applied immediately break but considering excessive speed means uncontrollable speed of ST bus which has resulted into going on wrong side and dashed to auto-rickshaw which was coming from opposite side going on correct side of road. Therefore, this evidence has been considered by claims Tribunal and not accepted evidence of driver and also considered evidence of auto-rickshaw driver and after examining the evidence of two eye witnesses, one is complainant and another of passenger of ST bus and also of the driver of ST bus and driver of auto-rickshaw, the claims Tribunal ultimately come to conclusion that if auto-rickshaw was seen by ST bus driver then he should have to immediately stop his bus but, he has not taken sufficient care because of rash and negligent driving of ST bus and ultimately, due to that accident occurred having uncontrollable speed of ST bus which resulted into going of wrong side and dahsed to auto-rickshaw which was coming on correct side and due to that, accident is occurred and as a result of which, two persons have died and one sustained serious injuries. Therefore, question of contributory negligence of auto-rickshaw driver does not arise. According to my opinion, claims Tribunal has rightly examined evidence on record and rightly considered complaint and oral evidence of eye witness, who was travelling in ST bus and also rightly relied upon decision of this Court in case of Ahmedabad Municipal Corporation v. Niranjan Ambalal reported in 1981 ACJ 381. Therefore, contentions raised by learned advocate Mr.Trivedi cannot be accepted and same are rejected. The claims Tribunal has rightly examined question of quantum in respect to both cases. I have examined evidence on record before claims Tribunal and considering evidence, claims Tribunal has rightly awarded compensation in favour of respondents claimants.
7. In Para.14, claims Tribunal has considered evidence in respect to MACP No.1518 of 1992 where Dahyabhai Bhudarbhai, who died in accident, was aged 55 years and working as an electrician, receiving salary of Rs.2000/- to Rs.2500/-. There was evidence of widow Shantaben and thereafter considering PM report, Exh.59, age of 60 years and claims Tribunal has assessed income at Rs.2100/- and looking to age of deceased, multiplier of 8 has been rightly applied and after deducting 1/3rd amount from Rs.2100/-, total amount comes to Rs.134,000/- being a dependency loss, Rs.10,000/- for loss of life and Rs.10,000/- for loss of consortium and love and affection, Rs.5000/- for funeral expenses. For that, according to my opinion, claims Tribunal has not committed any error which requires interference by this Court.
8. In Para.15, claims Tribunal has considered evidence in respect to MACP No.1577 of 1992 where Pashabhai Lavjibhai, who died in accident, was serving in Calico Mill, receiving salary of Rs.2500/- and also doing working in flour factory and receiving Rs.1000/- to Rs.1500/-. Vide Exh.41 identity card of Calico mill has been produced on record. Vide Exh.42, pay slip of Calico Mill was produced on record where Rs.2232/- salary was received by deceased at the time when he died. Considering age of 42 years, prospective income is not considered because Calico Mill has been closed. Thereafter, 1/3rd deducted and multiplier of 15 has been applied. In all, it comes to Rs.2,64,060/- being a dependency loss, Rs.10,000/- for loss of life and Rs.10,000/- for loss of consortium and love and affection, Rs.5000/- for funeral expenses. For that, according to my opinion, claims Tribunal has not committed any error which requires interference by this Court.
9. Therefore, according to my opinion, compensation which has been awarded in both cases, cannot be considered on higher side in any manner. Therefore, contentions raised by learned advocate Mr.Trivedi cannot be accepted and same are rejected. The claims Tribunal has rightly examined the matter and finding given by claims Tribunal cannot be considered to be baseless and perverse. On the contrary, finding is based upon legal evidence. Therefore, according to my opinion, claims Tribunal has not committed any error which requires interference by this Court. Accordingly, there is no substance in these first appeals. Accordingly, first appeals are dismissed.
10. Today, first appeals are dismissed by this Court. Therefore, no order is required to be made in civil applications for stay. Accordingly, civil applications for stay are also dismissed.
11. Learned advocate Mr.Trivedi submitted that one appeal being FA (St.) No.922 of 2006 is left out in this group of appeals and same is not listed for admission because it remained in office objection. He also submitted that aforesaid first appeal may also be included in present order.
12. Therefore, considering submissions made by learned advocate Mr.Trivedi, FA (St.) No.922 of 2006 and CA (St.) No.1499 of 2007 are also dismissed along with this group of appeals.
(H.K.RATHOD,J.) (vipul) Top