KHUSHALIBEN ASHUMAL VARIANI Vs. MANILAL PRABHUDAS CHAUHAN

JUDGEMENT

(1.) ON the afternoon of 27th January 1980 on the Tarapur-Galiyana State Highway, a head on collision took place between a Fiat Car GJP 1403 and a motor truck GTG 3375 resulting in the death of Ashumal Nathumal Virlani, on inmate of the car. The widow and minor daughters of the said deceased filed a Claim Petition No. 320 of 1980 against the drivers and owners of the two vehicles involved in the accident as well as the Insurance Company with which the motor truck was insured seeking compensation in the sum of Rs. 2,00,000/-. At the trial the claimants examined the widow of the deceased and one Babubhai Chhaganlal who claimed to be travelling in the Fiat Car with the deceased at the time of the accident. The driver and the owner of the Fiat Car did not choose to enter the witness-box. The driver of the truck, Manilal Prabaudas, gave evidence on behalf of the opponents in relation to that vehicle. The Claims Tribunal rejected the claim of witness Babubhai Chhaganlal as an eye witness to the accident taking the view that his presence as a co-traveller with the deceased in the Fiat Car was doubtful. Relying on the evidence of the truck driver, the Claims Tribunal came to the conclusion that the driver of the Fiat Car was solely responsible for the accident. The Claims Tribunal, therefore, made an award against the driver and owner of the Fiat Car and rejected the Claim Application in so far as the driver and owner of the truck were concerned and consequently against the Insurance Company also. Relying on the evidence of the widow Khushaliben and the income tax assessment order, Exhibit 39, the Claims Tribunal estimated the income of the deceased at Rs. 15,000/- and on that basis made an award in the sum of Rs. 1,55,000/- with proportionate costs and interest at six per cent per annum from the date of the application till realisation.

(2.) THE claimants feeling aggrieved by the award, particularly because the Claims Tribunal did not hold the driver and owner of the truck responsible for the accident, have preferred this appeal. By this appeal a two-fold contention is sought to be urged, namely (i) that the Claims Tribunal fell in error in exonerating the driver of the truck from the charge of negligence and in holding the driver of the Fiat Car solely responsible for the same and (ii) it adopted a conservative approach in estimating the income of the deceased and awarding Rs. 1,55,000/- only by way of compensation. On the other hand, the driver and owner of the Fiat Car have filed Cross Objections contending that the Claims Tribunal ought to have held the driver of the truck solely responsible for the accident and the amount awarded by the Claims Tribunal by way of compensation was very much on the higher side. The driver, owner and Insurance Company of the motor truck have also filed Cross Objections contending that the claim preferred by the claimants and the amount awarded by the Claims Tribunal was on the higher side. These Cross Objections have been preferred by way of abundant caution should this Court come to the conclusion that the driver of the motor truck was in any manner responsible for the accident To put it briefly, while the claimants contend that the driver of the motor truck was also responsible for the accident and the compensation awarded by the Claims Tribunal was on the lower side, the respondents contend that the compensation awarded by the Claims Tribunal was on the higher side and ought to be properly, reduced. The driver and the owner of the Fiat Car further contend that the Claims Tribunal erred in holding the driver of the Fiat Car solely responsible for the accident. It was contended by Mr. Amin, their learned advocate, that in any event this was a case of composite liability and the entire burden for the accident cannot fall on the driver and owner of the Piat Car. In view of the above, we are required to consider (i) whether the driver of the motor truck in question was in any manner responsible for the accident and (ii) whether the amount of compensation awarded by the Claims Tribunal was on the higher side as contended by the respondents or inadequate as contended by the appellants.

(3.) THE fact that the front left reflectors of both the vehicles were broken and the front left mudguard of the truck was bent while the front left side of the Fiat Car was smashed clearly indicates that there was a head on collision between the two vehicles Since the Fiat Car was lighter of the two, it spun on account of this head-on collision and took a turn before coming to a halt whereas the motor truck proceeded ahead and stopped at a distance of about 119 feet from the place of impact. It is necessary to bear in mind that the inmates of the car with the exception of Babubhai had suffered serious injuries and besides the deceased, the two others had become unconscious. The injuries suffered by the deceased were so serious that his condition had become critical on the spot and he soon succumbed to those injuries. It was the driver of the motor truck who reported the accident to the police and he alone was present at the time when this panchnama was drawn up. From this panchnama it becomes clear that the two vehicles were proceeding in the opposite direction, the truck was fully loaded with tobacco bags and both the vehicles were negotiating a bend at the time when the collision took place. The claimants' witness Babubhai, Exhibit 40, has deposed that the Fiat Car was proceeding at normal speed and the driver had kept to his side but because the truck came at full speed, the accident occurred notwithstanding the effort of the car driver to apply the brakes. tie states that on account of this accident, three inmates of the car including the deceased were seriously injured and had become unconscious. The deceased survived for hardly 15-20 minutes before succumbing to the injuries. In his cross examination he has stated that he was at Khambhat where the deceased was taken till about 11-00 P.M arid, therefore, he had not filed any complaint with the police. He states that the police had not recorded his statement at any time after the accident. He also states that he was not aware why his employer, the deceased, desired to visit Baroda on the date of the accident. He was not able to state which portion of the car dashed against the truck. From these statements made in cross-examination the Claims Tribunal came to the conclusion that his presence in the car at the time of the accident was doubtful. For our purpose we will for the present discard his evidence.