HIRABEN, DECD BHAILALBHAI HARMANBHAI Vs. KANAIYALAL RANCHHODBHAI MODI

JUDGEMENT

(1.) ORIGINAL claimant who instituted Motor Accident Claims Petition No. 116 of 1990 before the Motor Accident Claims Tribunal No. 2 at Ahmedabad to receive compensation of Rs.1 lac for the injuries suffered by him in a vehicular accident which occurred on 04/12/1989 around 2.30 p m., expired during the pendency of the petition before the Tribunal on 2/7/1997 and, therefore, the Tribunal dismissed the petition by judgment and award dated 15/4/1998. The Claims Tribunal, on the material produced before it, arrived at a conclusion that the deceased claimant failed to prove the negligence on the part of respondent no. 1, the driver of offending bus which belonged to respondent no. 2 Ahmedabad Municipal Transport Service. It was the case of the deceased claimant that on the date of accident, the vehicle i.e., bus bearing registration no. GTM 8808 was driven in rash and negligent manner and as a result of the same, it dashed against one pole while taking a turn. The deceased claimant received injuries on right hand including 3 to 4 fractures. The say of the respondents was that there was no negligence on the part of respondent no. 1 and it was upheld by the Tribunal. The Tribunal, therefore, dismissed the petition. However, it carried out the exercise to assess the compensation which could have been awarded to the deceased claimant had he succeeded in establishing the negligence.

(2.) I have heard Mr. Nalin K Thakkar, learned advocate for the appellant. He has submitted that on the issue of negligence the finding given by the Tribunal is absolutely erroneous and it is required to be set aside. He has further submitted that the amount determined by the Tribunal is on lower side and it requires upward revision.

(3.) I have carefully considered the submissions of Mr. Thakkar. I have also perused the record and proceedings of the case. So far as the issue of negligence is concerned, the evidence on record clearly shows that respondent no. 1 was negligent. It is the case of the appellants that the bus dashed against the electric pole while respondent no. 1 was taking the turn. This fact is stated in the petition as well as in the complaint, which is lodged against the driver at Exh. 26. However, the Tribunal has found that it was not stated that while taking the turn, this accident occurred. According to the Tribunal, the deceased claimant had failed to establish that the bus had dashed against the pole. The Tribunal has further observed that even if this is taken to be true that the bus collided with the pole while taking a turn, considering the contents of the FIR at Exh. 26, it was clear that his hand was pressed against the iron frame of the window and his wife and his brother's wife fell on him. He, therefore, sustained injuries. Hence, there was no negligence on the part of respondent no. 1. This reasoning does not appear to be very sound. First of all the deceased claimant has given consistent story in the petition as well as in the FIR that the bus dashed against the pole due to careless driving of respondent no. 1. In the deposition before the Tribunal also he has said the same facts. When that is so, there is no reason to disbelieve this version. Further the Tribunal has held that even if this version is believed to be true, there was no negligence of respondent no. 1 since according to the deceased claimant himself, he sustained injuries because his hand got caught between the glass pane of the window and it got fractured because his wife as well as his brother's wife fell on him. It is very obvious that had the bus not dashed against the pole due to rash driving of respondent no. 1, the wife and wife of the brother of deceased claimant would not have fallen on him and he would not have received such injuries. Therefore, it is solely the negligence of respondent no. 1 which is responsible for the accident and the resultant injury. I, therefore, quash the said finding of the Tribunal and hold respondent no. 1 negligent of driving his vehicle at the time of accident.