Maneklal Dhanjibhai Sharma vs Kirtikumar Babulal Jareja

Mohinder Pal, J.—Being aggrieved from the judgment and award passed by Motor Accident Claims Tribunal (MACT), Ahmedabad in Motor Accident Claim Petition (MACP) No. 485 of 1995, dated 13th March, 2000, whereby, Claims Tribunal partially allowed Motor Accident Claim Petition. The appellant hereby has preferred the present appeal for enhancement of the compensation amount.

Brief facts of this case are that on 23rd October, 1992 at about 4.45 p.m. deceased Bhaveshkumar was going on his moped (Luna) on extreme left side of the road and at that time, bus belonging to respondent-Transport Service was coming from opposite side being driven rashly and negligently and while overtaking rickshaw, the bus hit the driver of moped who ultimately, succumbed to his injury. After death of Bhaveshkumar, his wife and parents preferred the petition for compensation on the ground that at the time of his death, deceased was 24 years of age and was earning a sum of Rs. 80/- per day and as such, they claimed Rs. 9,09,000/- as compensation from the respondents.

This claim petition was contested by the respondent-Transport Service on the ground that it was case of contributory negligence as the deceased was himself negligent while driving the moped. The Tribunal taking into account the evidence of sole witness, namely, Kirtikumar Babulal Jaraiya, at Exh. 70, held that the opponent, driver of the bus, was negligent in driving the bus, however, his negligence was assessed at 75% while driver of the moped was also held negligent to the tune of 25% and as such, total compensation of Rs. 1,92,000/- along with interest at the rate of 10% p.a. was awarded in favour of the claimants. Aggrieved from this award, the present appeal has been preferred.

Learned counsel for the petitioners has submitted that the driver of the offending bus was rash and negligent in driving the bus which is proved from the evidence of the eye-witness examined by the petitioner and in absence of any evidence, the Tribunal has wrongly reached to the conclusion that the there was contributory negligence of driver of the moped and as such, deduction of 25% compensation payable to the surviver of the deceased was liable to be set aside. Though, in the initial argument, learned counsel also referred to fact regarding multiplier but, this point is not pressed by him and finding is being recorded on the point of multiplier.

On the other hand, learned counsel representing the Transport Service has submitted that there was contributory negligence on the part of the driver of the moped. He referred to the evidence of Kirtikumar Babulal Jaraiya, at Exh. 70, that the moped was going down from the bridge and the bus was climbing up and in this situation, bus was at a slow speed when the moped was driven at high speed as there was acceleration because of slope. The Tribunal has rightly reached to the conclusion that there was contributory negligence on the part of the driver of the moped and as such the judgment was liable to be upheld.

I have heard learned counsel for the parties.

Because of this unfortunate accident, the driver of the moped aged 24 years has lost his life. Immediately, after accident, FIR has been recorded. The sole witness in this case is. Kirtikumar Babulal Jaraiya, who has been examined by the petitioner. In his evidence, he has deposed that at the time of accident, he was walking on the pavement of the bridge and at that time, moped came from his behind and it had gone ahead about 10 Ft. when bus being driven rashly and negligently came from the opposite side and hit the moped and as a result of which, the driver of the moped received injuries and ultimately, he died. He has further deposed regarding drawing of panchnama. Though, version put forward by this witness is not believed by the Tribunal yet, the Tribunal reached to the conclusion that it was a case of contributory negligence of 25% of driver of the moped. If we exclude evidence of this witness, then, the case has to be decided on other remaining documentary evidence on file which point towards negligence of driver of the bus. The reasoning of the Tribunal that moped might have gained speed with the slope is without any basis as the vehicle has to go down with the same speed in same gear in which it has climbed up. This is the basic principle of driving and movement of the vehicles in case of slopes.

Though, learned counsel for the petitioners also argued regarding the multiplier of 10 applied by the Tribunal, however, this point is not stressed any further.

Keeping in view the facts of this case, the way in which the bus was being driven, the role of the moped, FIR and the evidence of the alleged eyewitness, this Court reaches to conclusion that the findings recorded by the Tribunal regarding 25% of the negligence on part of the driver of the moped is without any basis and is accordingly, set aside. The driver of the bus is held 100% negligent in driving his bus. The amount of 25% of compensation deducted by the Tribunal is ordered to be disbursed to the claimant apart from the amount which has already been awarded in their favour.

Resultantly, the present appeal is partly allowed. The claimant shall be entitled to recover this amount along with 7% interest from the date of claim petition till realization of the compensation amount. This amount be paid to the claimant within a period of 2 (two) months from the date of deciding this appeal. Pronounced. Direct service is also permitted.