C/FA/2495/2019 ORDER DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2495 of 2019
With
R/FIRST APPEAL NO. 2496 of 2019
With
R/FIRST APPEAL NO. 2497 of 2019
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GUJARAT ROAD TRANSPORT CORPORATION
Versus
ASHWINBHAI CHHOTABHAI SUTHAR
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/02/2023
COMMON ORAL ORDER
1. The challenge in these appeals is given to the common judgment and award passed in M.A.C.P. Nos.321/2004, 1319/2003 and 322/2004 passed by Motor Accident Claims Tribunal (Auxi.) Ahmedabad on 17.12.2018.
2. Mr. Munshaw, learned advocate for the Page 1 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 appellant submitted that the order is illegal, unjust, arbitrary, erroneous and contrary to facts on records; the learned Tribunal has awarded the amount presuming the per monthly income without anything on record about the age, education and income, and permanent disability has not been proved. He further submitted that when the age has not been proved, application of multiplier would be erroneous, which has laid heavy monetary burden on the public exchequer.
3. While countering the argument and referring to the judgment of the learned Tribunal, Advocate Mr. Nishit Bhalodi, learned advocate for respondent no.1, submitted that all the evidence has been rightly appreciated by the Tribunal, and, just, appropriate and reasonable compensation has been granted which requires no interference of this Court.
4. The facts of the case suggests that on 05.05.2004 at about 8:45 in the morning, the claimants of Page 2 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 M.A.C.P. No.321/2004 and M.A.C.P. No.1319/2003 and deceased - Daxaben Aswinbhai Suthar, wife of claimant no.1 and mother of claimant nos.2 and 3, were travelling in a car bearing No.GJ-7-H-7717, and were passing through Himatnagar Road; suddenly opponent no.1 - the driver of the S.T. Bus No.GJ-18-V-7647 came in a full speed, rashly and negligently endangering the human lives, and it is stated that, in breach of traffic rules, without applying the horns had dashed the Maruti Car, which led to the accident. The injured applicants sustained fracture injuries and injury on the head. The applicants of M.A.C.P. No.321/2004 stated that they were admitted in the Civil Hospital as indoor patients and they had urged that they were for a long time bedridden and were assisted by attendant for their daily needs of the life, and the accident had led to permanent disability.
5. It was also urged by the claimant that he has expended a lot on the diet and transportation, and at the time of accident was at the age of 40 years and was Page 3 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 earning about 3,800/- per month as driver of auto rickshaw.
5.1 While the injured claimant of M.A.C.P. No.1319/2003 submitted that because of accident, she sustained fracture injury on the leg and on the ribs and was treated as an indoor patient in the Civil Hospital, where she underwent operation on the leg. After discharge from the hospital, for a long period, she was treated as an outdoor patient and had sustained permanent disability because of accident. She had claimed income of Rs.3,000/- per month by sewing work. While claimants of M.A.C.P. No.322/2004, stated that deceased Daxaben was earning Rs.3,500/- by sewing and by cooking and lodging. They had spent and claimed amount under pain, shock and suffering and also for post death rituals and other expenses.
6. The learned Tribunal dealing with the case under Section 166 of the M.V. Act, has considered the Page 4 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 accident because of 100% negligence of S.T. Bus. The appreciation of evidence on this aspect does not require any re-evaluation, as the learned Tribunal has considered the oral as well as documentary evidence, the complaint at Exh.41, Exh.42 - Panchnama, and Exh.41, and considering Exhibits-41 and 42, the FIR and the panchnama, the learned Tribunal has observed that at the time of incident, the Maruti Car bearing No.GJ-1-H-7717 was driven by Narendrabhai at his right side and at that time, S.T. Bus bearing No. GJ-18-V-7647, was in a full speed and because of the negligent driving and by trying to overtake, going on the wrong side, had dashed the Maruti Car.
6.1 The said fact has been corroborated by the Panchnama at Exh.42. The road was shown with breadth of 24 Feet, and as per the Panchnama, the Maruti Car was on the corner of the road facing the western side. While the S.T. Bus was found on the corner of the road in the said western side, and, thus the Tribunal considering the fact stated in the Panchnama and in the claim Page 5 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 petition, has observed that the Maruti Car was going towards Ambaji/Himatnagar, and the bus was heading towards Ahmedabad; in spite of that, it was on the wrong side, and thus it clearly proves that S.T. Bus after going on the wrong side had dashed the Maruti Car. Hence, 100% negligence of driver of S.T. Bus has been considered. At the same time, by Exh.46, the evidence of S.T. Bus driver was noted, and after considering his deposition and the fact stated therein, 100% negligence of the S.T. Bus driver has been concluded. This Court does not find any reason to interfere with the observation on merits, which is on the basis of the appreciation of the evidence and deposition on record.
7. The applicant of M.A.C.P. No.321/2004 is an auto rickshaw driver, who has urged to consider his income as Rs.3,800/-, while no evidence has been produced. The learned Tribunal has considered his income as Rs.3,000/- on the date of accident i.e. on 05.05.2004. At the time of the accident, his age was Page 6 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 considered as 40 years, 10% disability has consented to be considered as 6%. Thus, after applying the judgment of Sarla Verma and Others vs. Delhi Transport Corporation and Another, reported in AIR 2009 SC 3104, by taking 6% permanent disability, considering the annual income as 36,000/-, the loss in the income is shown as 2,160/- with the multiplier of 15 and the compensation amount of Rs.32,400/- has been granted, which this Court considers just and reasonable, and does not require any interference with the assessment so made. Under various other heads, the learned Tribunal has granted the following amount:
Sr. Details Amount in Rs.
No.
1. Future loss of income 32,400
2. Actual loss of income 3,000
3. Pain, shock and suffering 6,000
4. Medical Expenses 5,000
5. Diet, transportation and Attendant 7,000
charges
Total compensation amount 53,400
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C/FA/2495/2019 ORDER DATED: 14/02/2023
7.1 In total Rs.53,400/- have been granted
considering the permanent disability, loss and the
treatment undergone, which is just and proper.
8. The income assessed of the claimant of M.A.C.P. No.1319/2003, is Rs.3,000/-, as she was doing sewing work. The age is considered as 32 years at the time of accident, and 9% disability, has been considered as 5% under the consent pursis, Exhibit-37. The learned Tribunal by applying the multiplier of 16 has considered the loss of income as Rs.28,800/-, which is just and proper. While under other heads by considering the hospitalization and the aid sought and the medical treatments, the Tribunal has granted the amount under the various heads as under:
Sr. Details Amount in Rs.
No.
1. Future loss of income 28,800
2. Actual loss of income 3,000
3. Pain, shock and suffering 5,000
4. Medical Expenses 5,000
5. Diet, transportation and Attendant 7,000
charges
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C/FA/2495/2019 ORDER DATED: 14/02/2023
Total compensation amount 48,800
8.1 Thus, in total Rs.48,800/- has been granted,
which is just and proper.
9. The claimants of M.A.C.P. No.322/2004 have stated that deceased Daxaben was earning Rs.3,500/- from sewing and cooking work. The evidence could not be produced on record; however, the learned Tribunal has considered the income of deceased as Rs.3,000/- per month. The age of the deceased was noted, by way of postmortem report, as 32 years at the time of accident, and 1/3rd deduction i.e. Rs.1,000/- has been made towards personal expense, and thus monthly income is considered as Rs.2,000/-. The learned Tribunal thus relying on the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., reported in AIR 2017 SC 5157, has observed that since the deceased was earning income from cooking, 40% prospective rise has been given in the income; and thus, after the deduction, considering Rs.2,000/-, 40% rise has been given, which came to Page 9 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 Rs.8,00/-. Hence, total income of per month has been considered as Rs.2,800/-. Taking into consideration the age, following Sarla Verma and Others vs. Delhi Transport Corporation and Another (supra), the multiplier of 16 had been applied; thus, in total Rs.5,37,600/- has been granted under loss of dependency (2,800 x 12 x 16). The amount under conventional head had been granted and the total compensation is as under:
Sr. Details Amount in Rs.
No.
1. Future loss of income 5,37,600
2. Loss of consortium 40,000
3. Love and Affection 15,000
4. Funeral Expenses 15,000
Total compensation amount 48,800
9.1 This Court does not find any reason to interfere
with the judgment and compensation assessed, which has been granted with 8% interest.
10. Thus, in view of the above, there is no ground for interfering in the judgment and award passed in Page 10 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023 C/FA/2495/2019 ORDER DATED: 14/02/2023 M.A.C.P. Nos.321/2004, 1319/2003 and 322/2004 by Motor Accident Claims Tribunal (Auxi.) Ahmedabad on 17.12.2018. Hence, all the appeals stand dismissed. No order as to costs. Record and Proceedings, if any, be sent back to the concerned Court forthwith.
(GITA GOPI,J) Pankaj Page 11 of 11 Downloaded on : Fri Feb 17 20:45:22 IST 2023