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Judgment
N.V.Anjaria, J
Heard learned advocate Mrs.Vasavdatta Bhatt for the appellant and learned advocate Mr.Mohsin Hakim for the original claimants - respondent Nos.1 and 2.
The present First Appeal under Section 173 of the Motor Vehicles Act, 1988 preferred by the appellant Gujarat State Road Transport Corporation, is directed against judgment and award dated 04th July, 2015 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claims Petition No.726 of 2004. It was a claim petition under Section 166 of the Act wherein the Tribunal held opponent Nos.1 and 2, which included the appellant Corporation, to be jointly and severally liable to pay the awarded amount of compensation of Rs.11,73,000/- with interest at the rate of 9%.
The accident in question occurred on 17th February, 2004. Deceased Milindbhai, aged 19 years, an engineering student, was going to his college on motorbike with his cousin named Nirav sitting as a pillion rider. It was stated that while the motorcycle was driven on the correct side, State Transport Bus bearing Registration No.GJ-18-V-1833 driven by opponent No.1 in rash and negligent manner came from the wrong side. The Bus suddenly took a turn from the left side without giving any signal or blowing a horn. The Bus from its left dashed with the motorcycle, in which the deceased sustained serious injuries to succumb to them later.
3.1 A police complaint was lodged against the driver at Gorva Police Station. The claimants filed claim petition for recovery of compensation to the tune of Rs.12.00 lakhs with cost and interest. The claimant Nos.1 and 2 happened to be the father and mother of the deceased.
3.2 The Tribunal proceeded to decide the claim petition taking evidence on the aspects of negligence as well as quantum. The future income of the deceased, who was prosecuting the degree course of Aeronautical Engineering, was assessed at Rs.10,000/-. The multiplier of 18 was applied and total future loss of income was arrived at to be Rs.10,80,000/-. The amounts towards funeral expenses, loss of love and affection and post-death rites expenses were awarded to make the total compensation at Rs.11,73,000/- with 9% interest.
3.3 On the aspect of negligence, the Tribunal held that the Bus dashed on its front side from the left with the motorcyclist and the bus driver was cent percent negligent and the motorcycle rider was not at fault. Therefore, the Tribunal attributed 100% negligence on the bus driver and delivered its judgment and award on that basis.
The present Appeal by the Corporation is based on the ground of assessment of contributory negligence by the Tribunal. The only submission canvassed in course of the hearing by learned advocate for the appellant was that the Tribunal committed an error to attribute 100% negligence to the S.T. Bus and that the motorcyclist was liable to be attributed with negligence.
Therefore, without adverting to any other aspect, the question of negligence may be considered by appreciating the manner in which the accident occurred as could be gathered on the basis of the evidence on towards Ilorapark to Race Course and Sarabhai Company. It was a road passing East-West where the accident occurred.
5.1 Upon appreciation of oral and documentary evidence, Tribunal came to a conclusion that, "S.T. Bus dashed with motorcycle from its left front side to the motorcycle. As per the panchnama as well as oral evidence, its also become clear that the portion of left front side of S.T. Bus and portion of right/back side of motorcycle was damaged. Such all the evidence makes it clear that S.T. Bus dashed with its left front side portion to right back side of motorcycle.". The Tribunal then noticed that the accident had occurred hear the circle when the Bus tried to take a turn. It was observed that driver while taking turn on the left side ought to have been more vigilant and further that when the left side of the Bus hit the motorcycle while the Bus was taking turn on the left, the motorcyclist could not be held liable for the accident. It was held that it was sufficiently established that the accident was occurred due to the sole negligence of opponent No.1 - S.T. bus driver.
5.2 It transpires from the facts of the case that S.T. Bus was going towards Ilorapark side towards Sarabhai Company in the routine trip which was towards West. While proceeding, the S.T. Bus negotiated a sharp turn towards left side. At that time, the motorcycle in question driven by Milin and pillion rided by his cousin Nirav was proceeding in the same direction. As the Bus took a turn, the left side of the Bus from its front hit the motorcycle. The deceased was knocked down to fall on the road and succumbed to the injuries.
5.3 In the claim petition, it was the case of the appellants that Bus took a sudden turn on the left side in rash and negligent manner without giving any signal or blowing horn and dashed with the motorcycle. Panchnama (Exh.70) stands to support the theory with regard to the manner of accident. It was mentioned that when the Panchnama was carried out, the Bus was lying stationary facing the West. The accident was shown to have occurred on the left side of the bus. The back part of the motorcycle was found damaged. On the footpath at about 5 ft. distance, blood marks were found, near to which the motorcycle was lying.
5.4 Evidence of pillion rider Nirav (Exh.27) reflects on the manner of the accident, who stated that the bus driver without blowing horn or giving signal, turn left towards Shastri Bridge having come from Ilorapark side as the Bus turn suddenly, the motorcycle was hit and both the rider and the pillion rider knocked down. Bus Conductor Dhanjibhai Govindbhai Parmar (Exh.23) was examined. On reading of evidence, it could be noticed that he in a failed bid to save the driver, stated that the accident took place on the right back side of the Bus where the motorcycle was hit and to suggest therefore the motorcyclist was negligent. This story of motorcycle having hit on the right side of the Bus while Bus was turning, stood falsified in the cross-examination when the witness himself admitted in clear terms that the accident was towards the left side of the Bus which dashed with the motorcycle to knock it down.
5.5 The cumulative reading of the evidence definitely show that while negotiating turn at the three roads junction, as the bus driver took sudden turn towards left, the motorcycle which was also proceeding on the road, was hit from behind by the left front side of the Bus. The manner and situation of the occurrence would go to suggest that since the bus driver without taking care, took an abrupt turn, it resulted into hitting of the motorcycle.
5.6 The Tribunal was justified in relying on the evidence of pillion rider Nirav who was an eye-witness. The way the accident occurred and the narration of the Panchnama, all corroborated one another to suggest that the abrupt turning of Bus took the motorcycle to hit it from front left side of the Bus. The Tribunal also appreciated the evidence of Conductor Dhanjibhai as well as considered the Panchnama.
5.7 The Tribunal rightly appreciated the evidence to come to conclusion that the left front side of the S.T. Bus and portion of right back side of motorcycle was damaged. The Tribunal thereafter recorded that the bus driver tried to take turn at such place of the circle towards left that the bus driver ought to have been more careful. Due to sharp turn, the Bus hit the motorcycle and the bus driver was rightly held to be sole negligent in the accident.
In Yerramma v. G. Krishna Murthy [2014 (10) SCALE 213] the facts that Bus and motorcycle dashed when the Bus was turning towards right side without showing the turn indicator to enter the Bus Depot. The bus driver was held to be sole negligent. What is to be noticed are the following observations of the Supreme Court, "The driver of the respondent-Corporation should have been aware of the fact that he was driving the heavy passenger motor vehicle, and that it was necessary for him to take extra care & caution of the other vehicles on the road while taking the turn to enter the depot. Had the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted."
For the foregoing reasons and discussion, the Tribunal is right in attributing 100% negligence on part of the S.T. bus driver having regard to the facts and evidence on record. Appeal stands dismissed. As the only ground raised and argued on behalf of the appellant is on the aspect of negligence, the Appeal has to necessarily fail.
Record & Proceedings shall be sent back.