GUJARAT STATE ROAD Vs. JAYSHREEBEN RAMESHCHANDRA GANDHI

JUDGEMENT

(1.) Heard learned advocate Ms. Kiran D. Pandey for the appellants and learned advocate Mr. Paresh M. Darji for the respondents No.1,2 and 3. Perused the record.

(2.) The appellants herein are ST Corporation with its driver; whereas, respondents are original claimants. The appellants have challenged the judgment and award dated 29.1.2018 by M.A.C.T., Surat in M.A.C.P. No.271 of 2006, whereby Tribunal has awarded an amount of Rs.10,69,654/- for the death of one Rameshchandra Gandhi, who died in a vehicular accident. It is undisputed fact that on 2.1.2006, when deceased was travelling on a motorcycle No.GJ-5DB-8115, the ST Bus bearing No.GJ-18V-4604 had dashed with the motorcycle and in such vehicular accident, both the driver and pillion rider of the motorcycle, namely, Manilal Gotefore and Rameshchandra Gandhi had died. Therefore, legal heirs of both the deceased have filed two separate claim petitions being M.A.C.P. No.271 of 2006 by heirs of deceased Rameshchandra Gandhi and M.A.C.P. No.431 of 2006 by deceased Manilal Gotefore. The Tribunal has after allowing both the sides to adduce their evidence, awarded Rs.10,69,654/- in M.A.C.P. No.271 of 2006 to the heirs of deceased Rameshchandra Gandhi and Rs.3,45,000/- in M.A.C.P. No.431 of 2006 for death of deceased Manilal Gotefore. It is undisputed fact that motorcycle was being driven by deceased Rameshchandra Gandhi; whereas Manilal Gotefore was a pillion rider.

(3.) However, when both the claim petitions are only against driver of the ST Bus and ST Corporation, when ST Corporation has not challenged the order in M.A.C.P. No.431 of 2006, and more particularly, when judgment and award is common in both the petitions, practically, appellant - ST Corporation has admitted the determination regarding negligence when Tribunal has held the ST driver as sole negligent for the accident. Therefore, though the issue of contributory negligence of deceased Rameshchandra Gandhi is pleaded and argued before this court, there is no substance in such submission for two reasons viz. being legal i.e. application of principle of res judicata or admission by the appellants, when they did not challenge the award in M.A.C.P. No.431 of 2006 wherein also the Tribunal has held that ST driver is solely negligent and factually, when ST driver has not stepped into the witness-box, considering the decisions of Hon'ble Supreme Court of India in the case of Jiju Kuruvila and Ors vs. Oriental Insurance Co. Ltd. reported in 2013 LawSuit (SC) 527 and Sarladevi and Ors. vs. Divisional Manager, Royal Sundaram Alliance Ins. Co. Ltd. reported in 2014 LawSuit (SC) 698, in absence of evidence by the tortfeasor to prove that another person is negligent, he cannot escape from his liability and therefore, there is no error in the decision by the Tribunal to hold ST driver as sole negligent.