Gujarat State Road Transport Corporation Vs. Hanif Mohmed Bismillakhan and anr. - Court Judgment

Excerpt:
- - both then preferred to file the petition for compensation under motor vehicles act so as to make the loss good. in order to help the victims of the motor accidents, necessary provisions in motor vehicles act are made so that the victims can get fair compensation and make the loss good; the contention is not well-founded. in that case, the bus was also found on the wrong side and considering the evidence, this court found that the evidence was well appreciated and there was no reason to interfere with the finding qua the negligence recorded by the tribunal. the other authorities vested with the power for reasons best known to them desist from exercising the powers vested under such provisions of the act.h.r. shelat, j.1. being aggrieved by the judgment and awards dated 19.3.1982 passed by the then learned chairman of the motor accidents claims tribunal (auxiliary) at surendranagar in m.a.c. case nos. 185 of 1980 and 252 of 1981 awarding some amount of compensation, the original opponent no. 2 has filed both the appeals.2. as both the appeals arise out of the same judgment and order passed by the tribunal and common question of law and facts are raised before us, in order to avoid undue consumption of time and conflicting judgments, we preferred to hear both the appeals together and dispose of the same by a common judgment and accordingly by this common judgment, both the appeals shall stand disposed of.3. the facts, leading the appellant to prefer the appeals may in brief be stated. hanif mohmed bismillakhan was serving as body-builder in cama motors pvt. ltd. at ahmedabad. he was also knowing driving. sukhrambhai, the proprietor of kathiawad motors, rajkot had placed the order for hindustan trecker jeep. the cama motors pvt. ltd. had to effect the delivery of jeep at rajkot. on 19.4.1980 the master of hanif mohmed bismillakhan asked him to take hindustan trecker jeep to rajkot and deliver the same to kathiawad motors. in the morning at 6.00 on 19.4.1980, hanif mohmed left ahmedabad. beside him haji gafurbhai mansuri was sitting. they were passing by surendranagar-chotila road. at that time, one s.t. bus, grt 7195 from nadiad to somath was found passing. at that time, it was 2.45 p.m. according to hanif mohmed the s.t. bus was being driven by the respondent no. 2 at a hectic speed. he wanted to go ahead of the s.t. bus. he, therefore, sought signal and the s.t. driver gave the signal to overtake. at the time when overtaking was about to be over the s.t. driver lost the control and hit the jeep from behind as a result the jeep turned towards the left side and because of the violent impact it rolled down off the road and came to a halt under a tree about a distance of about 19 feet from the road. both hanif mohmed and haji gafurbhai mansuri sustained injuries. the bus went ahead up to a certain distance and was stopped. initially both the injured were taken to the dispensary at chotila and thereafter they were removed to the hospital at rajkot. after certain treatment, hanif mohmed was taken to vadilal sarabhai hospital at ahmedabad where he was hospitalised for about 13-14 days. as he was seriously injured and a fracture of his shin-bone was noticed, he was operated. thereafter he was admitted in private hospital of dr. dineshbhai where he was also again operated and hospitalised for about 3 months. for considerable months, he had undergone physiotherapy undergoing excruciating pain and heavy economical loss. both then preferred to file the petition for compensation under motor vehicles act so as to make the loss good. hanif mohmed who was driving the jeep filed m.a.c.p. no. 252 of 1981 for the compensation of rs. 1,00,210/-, while haji gafurbhai mansuri who had sustained minor injuries preferred m.a.c.p. no. 185 of 1980 for compensation of rs. 9,999/- before the tribunal. the appellant and the respondent no. 2, against whom the petitions were filed, appeared before the tribunal and filing their written statement refuting the claim and submitted that the respondent no. 2 who was driving the bus was not at all rash and negligent. he was all the while cautious in driving the bus. the jeep driver was driving at the hectic speed while overtaking and lost the control as a result he collided with the right front bumper of the s.t. bus and went off the road etc. the learned chairman of the tribunal at the conclusion of the hearing appreciated the evidence led before him and reached the conclusion that both the drivers were negligent and apportioned the same at 70:30. according to the tribunal, the s.t. bus driver was negligent to the extent of 70 per cent while hanif mohmed, the driver of the jeep was negligent to the extent of 30 per cent. the m.a.c.p. no. 185 of 1980 was allowed partly and the award of rs. 7,500/- was passed with running interest and proportionate costs. the m.a.c.p. no. 252 of 1981 was also partly allowed and the award for rs. 35,000/- was passed together with interest and proportionate costs. it is against that judgment and awards passed, both these appeals are preferred before this court.4. on behalf of the appellant, mr. pandya, learned advocate submitted that the tribunal fell into error in appreciating the evidence qua negligence. there was no iota of evidence on record indicating that the driver of the bus was negligent in driving the bus and was responsible for the accident even to a little extent. the tribunal ought to have in detail dealt with the issue of negligence rather than proceeding under the belief that negligence is to be assumed. we find force in the submission advanced.5. the accidents are happening in numbers, and many lose their lives; while many sustain injuries; as a result, their physical frame is shattered and battered. the victims of the accidents have then to pass a miserable life, and many times, they also feel that life is not worth living as they are helpless, and cannot place themselves at par with those who are having good physique and no woes. in order to help the victims of the motor accidents, necessary provisions in motor vehicles act are made so that the victims can get fair compensation and make the loss good; but the compensation is not to be awarded mechanically or on happening of the incident. if the claim is made under section 110-a (section 166 of the motor vehicles act, 1988) on fault liability and not on no-fault liability as provided under section 92-a of the motor vehicles act, 1939, the party praying for compensation has not only to allege the negligence on the part of the driver of the vehicle involved but has also to establish the same leading necessary evidence failing which he cannot succeed. in order to establish the negligence the party has to show what was the duty of the driver, the driver committed the breach of that duty and the result of the breach of the duty was injury to his person or property. the breach of the duty in order to establish the negligence can be proved by showing that the driver omitted to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of the human affairs would do or doing something which a prudent and reasonable man would not do.6. in what manner the incident took place has to be ascertained. hanif mohmed bismillakhan, at exh. 25, has narrated the manner in which the incident happened. haji gafurbhai mansuri who was beside him at the time of incident in the jeep has made an attempt to support him in his evidence exh. 34. the respondent no. 2 who was driving the bus is examined at exh. 43. when the evidence of all the three witnesses is read together along with the pleadings of respondent no. 1, in both the appeals, what can be deduced is that on 19.4.1980 when they were going towards (sic.) rajkot driving the jeep, one s.t. bus was found proceeding ahead of them. at that time, it was 2.45 p.m. and they were between the towns of sayla and chotila. when they reached within the local limits of village magharikhada, hanif mohmed, the jeep driver wanted to overtake and proceed ahead. he, therefore, sought the signal and on receipt of the signal from the s.t. bus driver started to overtake and when the overtaking was about to be over, according to him, the s.t. bus driver lost the control and hit him from behind especially on his left back side. the right hand front side of the bus collided against the back side of the jeep, as a result of the push the jeep took the extreme left turn and went off the road and came to a halt under a tree at a distance of about 19 feet. it, therefore, becomes clear that the incident happened while overtaking. it is, therefore, necessary to know what are duties of the driver while overtaking the vehicle proceeding ahead of him.7. if the driver of the vehicle desires to overtake the vehicle proceeding ahead of him, he cannot as per his likes and dislikes or whims overtake. it is his duty to first convey by any available device to the driver of the vehicle proceeding ahead of him about his desire to overtake. after conveying his desire by any available device or signal, he should wait till the driver of the vehicle proceeding ahead of him gives a green signal. even after the green signal is given, the driver overtaking the vehicle must be cautious. he must also ascertain that the space available on the right side is sufficiently wide so as to conveniently and safely pass through, and there is no obstruction on the right side. thereafter, he can proceed to overtake, but while overtaking, he must keep reasonable distance between his vehicle and the vehicle being overtaken so as to avoid brushing and grazing. after overtaking the vehicle, he has to drive his vehicle up to certain distance on the track meant for vehicle coming from opposite direction, i.e., right hand side track and then he has to give the signals for changing lane to the left hand side for taking his vehicle to his correct side (left hand side).8. in view of such duties when evidence is examined, we find that the jeep driver committed the breach of his such duties. to appreciate the evidence of the above three witnesses, the panehnama drawn by the police after the complaint was lodged is material. the same is produced at exh. 29. it can be said from the panchnama that the road is east to west in length and its width is 22 feet. towards east, it leads to surendranagar while towards west, it leads to rajkot. both the vehicles were proceeding towards rajkot and therefore, the correct side of both the vehicles was the southern half of the road. it may be stated that on both the sides there were shoulders each admeasuring about 5 feet in width. after the signal was sought and given by the respondent no. 2, the jeep driver started to overtake going to his right side. but it seems soon after reaching near the front side of the bus he took immediate and unexpected turn towards left so as to go to his correct side without keeping a reasonable distance so as to avoid brushing and grazing and giving signals which can be spelt out from the marks noted by the police in the panchnama. the police found the impact point about 5 feet away from the southern border of the road towards north, and police also found the wheel marks of the jeep coming from the right side of the road, i.e., northern half of the road to the impact point and then proceeding towards south, i.e., off the road and reaching up to the tree about 19 feet away from the road. when the jeep driver thus did not keep a reasonable distance even after crossing the front portion of the bus bearing in mind his speed and speed of the bus and length of his jeep and immediately took a turn, the incident happened; and because of the breach of his such duty he is solely liable for being rash and negligent in driving the jeep.9. however, it was contended on behalf of the respondent no. 1 that the s.t. driver had not kept the bus on the extreme left side and further he was driving at hectic speed. the contention is not well-founded. when the police has found the impact point about 5 feet away from the southern border of the road and against the right hand front bumper left hand back corner-portion of the jeep hit the bus, it can be said that the bus was partly on the tar road and partly on the shoulder because, ordinarily the width of the bus is 8 feet. the bus driver was, therefore, on his extreme left side to the maximum possible extent and leaving only 2 ft. distance from the left border of the shoulder he was driving which was quite reasonable. he, therefore, cannot be blamed alleging that he ought to have moved more and more towards the southern side, it was risky to move more to the south. about the speed also, he cannot be blamed. after the impact point as noted by the police in the panchnama, the bus was stopped at a distance of about 31 feet. this distance is suggestive of the speed of the bus. if the vehicle can be stopped applying the brakes at a distance of 31 feet, looking to the table below rule 147 of the bombay motor vehicles rules, it can be said that the bus at that time must have been driven at the speed of not more than 30 kmph; it might be even less per hour and that speed cannot be considered to be excessive which would hamper the driver in controlling the vehicle. it is pertinent to note that the jeep driver has in his evidence, when trapped in the cross-examination, admitted that he was driving the jeep at the speed of 80-90 kmph and he hit the bus and not the bus hit him. if at all he was driving at the speed of 80-90 kmph and could overtake the bus, it can be said that the bus was driven at a lesser speed than jeep's speed. the respondent no. 2, the bus driver did what he was supposed to do. he, therefore, cannot be blamed as canvassed by the learned advocate representing the jeep driver.10. faced with such situation, mr. pahwa, learned advocate representing the respondent no. 1 drew our attention to a decision of this court rendered in the case of aminakhatun v. fakrusha bismillah shah fakir 1982 acj (supp) 89 (gujarat) and submitted that it would not be just and proper on the part of this court to upset the finding of negligence recorded by the tribunal. it seems mr. pahwa made a lame attempt to have the finding in his favour citing the decision. when the decision is read with meticulous care and finicky details, what is made clear is that ordinarily the high court will not interfere in the finding of fact, provided it is found that the evidence has been scrutinised with due care and the same is not misread or ignored, and conclusions drawn are just and proper. if the principles of law are wrongly applied, or the evidence is misread, or not read, it is the duty of this court to interfere and upset the finding. in that case, the bus was also found on the wrong side and considering the evidence, this court found that the evidence was well appreciated and there was no reason to interfere with the finding qua the negligence recorded by the tribunal. in the case on hand, the learned chairman of the tribunal has not at all taken into account the impact point recorded by the police and noted in the panehnama. he either missed to note it or conveniently kept the same out of his consideration. had he taken the note of that impact point, his conclusions would have been otherwise than what he, without analytic approach blindly accepting the case of the petitioner (respondent no. 1), has drawn. the evidence is thus misread; or not read in correct perspective, it is not appreciated rightly. the decision cited, therefore, cannot be pressed into the services of the respondent no. 1 and the submission advanced cannot be accepted.11. in view of the above stated reasons, the case advanced by the petitioner (respondent no. 1) cannot find favour. on the contrary, it seems that with a view to have the compensation any how under the provisions of the motor vehicles act, they came out with distorted versions. the s.t. bus driver was as stated earlier on his left side to the maximum extent and he was cautious in driving the bus keeping the rules of traffic in mind. he, therefore, cannot be blamed for being negligent even to a little extent. it seems that the learned judge below was obsessed with the notion that the heavy vehicle can be the offending vehicle and accepting the case of the jeep driver about the speed of the s.t. bus, he fell into error in reaching the conclusion that the s.t. driver was at fault to the extent of 70 per cent although the incident has solely happened because of the breach of duty on the part of the jeep driver we have hereinabove pointed out. had the jeep driver been cautious and proceeded a little distance ahead rather than taking immediate sharp turn towards the left side, after reaching the front of the bus, he would have avoided the accident. the bus driver did everything he was supposed to do. he cannot be blamed for the incident. in para 8 at page 15 in the judgment, the learned chairman has no doubt found the manner in which the accident happened which is consistent with what we have found out, where he has observed that even if he had tried to overtake he should have taken it in straight line rather than coming more on left hand side. but it seems while concluding finally he ignored that material aspect and also the impact point and preferred to apportion the negligence 70:30 which is not at all warranted by the aforesaid evidence and therefore, the finding of the tribunal about the negligence requires to be upset.12. for the aforesaid reasons, the bus driver, the respondent no. 2, cannot be blamed. he was careful and was not negligent. the tortfeasor is the jeep driver, the respondent no. 1. the bus driver, therefore, cannot be fastened with the liability to pay compensation, consequently under vicarious liability the appellant also, who is his master. the jeep driver being the cannot take advantage of his wrong. he is entitled to no amount of compensation from the appellant and respondent no. 2, the bus driver. in view of the matter, it is not necessary to deal with the quantum under different heads and dissect the merits of the tribunal's findings thereon. in the result, the judgment and awards of the tribunal cannot be maintained. the petitions filed, being devoid of merits, deserve to be dismissed.13. the motor accidents giving rise to poignant scenes and miseries and woes betiding victims are alarmingly increasing. the same are required to be curbed, and the safety to the people is required to be ensured, and therefore, alike sections 20 and 22 of the motor vehicles act, 1988 vesting the criminal courts with power to disqualify to drive and suspend the driving licence if the driver of the motor vehicle is held guilty, it is now imperative, to curb such mishaps, to vest the motor accidents claims tribunal with power to disqualify to drive any motor vehicle and suspend the driving licence of the driver who by his rash or negligent act is found to have caused injury to or death of others. we are sorry to note that criminal courts vested with the powers hardly exercise the powers vested. the other authorities vested with the power for reasons best known to them desist from exercising the powers vested under such provisions of the act. it is, therefore, earnestly hoped that the law framers will suitably amend sections 20 and 22 or will insert a new provision in motor vehicles act, 1988 at the earliest, and vest the tribunals with adequate powers.14. in the light of what is stated above, we accept both the appeals, set aside the judgment and awards passed by the tribunal and dismiss both the motor accident claim petitions. there shall be no order as to costs.