NEUTRAL CITATION
C/FA/3384/2013 JUDGMENT DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3384 of 2013
With
R/CROSS OBJECTION NO. 10 of 2014
In
R/FIRST APPEAL NO. 3384 of 2013
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SUREKHABEN WD/O PRAVINCHANDRA KACHHIYA & 3 other(s)
Versus
MUKESH RANCHHODBHAI PATEL & 1 other(s)
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Appearance:
MS MITA S PANCHAL(530) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 2
MS HINA DESAI(1023) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/11/2023
ORAL JUDGMENT
1] This appeal has been filed by the appellants-original claimants against the respondents-original opponents under Section 173 of the Motor Vehicles Act, ( 'The Act', for short) against the judgment and Page 1 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined award passed by learned Motor Accident Claims Tribunal (Aux.) Panchmahals @ Godhara in Motor Accident Claim Petition No. 1573 of 1999 on 7th January, 2013. The Cross objections have been filed by the original respondent No. 2-Gujarat State Road Transport Corporation against the original claimants and the original opponent No.1-driver of ST Bus No. GJ-18-V-3573. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity. 2] The brief facts that emerge from the record of the case are as under:-
2.1] That on 24th May, 1999, Parbatsinh @ Pravinchandra Kachhiya was going as a pillion rider with his friend on a scooter and the scooter was being driven by his friend Shankarbhai slowly and on the left side of the road and while they were crossing the board of village Mehloliya, on the Lunawada-Santrampur road, ST bus No. GJ-18-V-3573 came from Lunawada side in a rash and negligent manner and dashed the behind portion of the scooter, as a result of which, Pravinbhai Kachhiya fell down and sustained serious injuries. That he was immediately taken to the Civil Hospital, Godhara where he succumbed to his injuries during treatment. The offence was registered at Lunawada Police Station being I-C.R.No. 85 of 1999.
Page 2 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined 2.2] The claimants, who are the widow and minor children of
the deceased have filed the claim petition being Motor Accident Claim Petition No. 1573 of 1999 mainly stating that they were fully dependent upon deceased and they have lost their sole earning members. That at the time of accident, the deceased was 45 years old and he was doing his own business of small savings and lottery and they have lost their bread-earner and have claimed an amount of Rs.9,06,000/- from all opponents jointly and severally under all available heads.
3] The notices were duly served to the opponents but the opponent No. 1 did not remain present whereas the opponent No. 2 ST-Corporation appeared and filed the written statement at Exh; 38 mainly denying all the contents of the claim petition and have stated that ST Bus No. GJ-18-V-3573 is not involved in the accident and has urged the Tribunal to dismiss the claim petition. 4] The learned Tribunal, after recording the evidence of all parties on record, as no evidence regarding the income was produced, considered the notional income at Rs.2000/- and accordingly calculated loss of dependency to be Rs.3,60,000/- and awarded an amount of Rs.2,000/- towards funeral expenses and Rs.20,000/- towards love and affection and in all awarded an amount Page 3 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined of Rs.3,82,000/- with interest at the rate of 9 % from the date of filing of the application till realization.
5] Being aggrieved and dissatisfied with the judgment and award passed by the learned Tribunal, the appellants-original claimants have filed the present appeal mainly stating that the learned Tribunal has not assessed the income of the deceased properly and has not granted proper amount under conventional heads. That the deceased was earning Rs.5,000/- pm and the income considered by the learned Tribunal is on the lower side and hence the claim of the claimants must be accordingly enhanced. 6] The opponent No.2-ST Corporation has filed cross objections mainly stating that the driver of the scooter has not been joined as a party to the petition and in fact there were three persons going on the scooter and the driver of the scooter was also negligent as three persons are not allowed to travel on a scooter. That the learned Tribunal ought to have considered the said fact and the driver, owner and the Insurance Company of the scooter were required to be joined as parties to the proceedings and in the absence of the necessary parties, the learned Tribunal has erred in holding 100% negligence on the part of the driver of ST Corporation. That the driver of the scooter had suddenly turned the scooter and Page 4 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined dashed into the bus and he was more negligent for occurrence of the accident. Moreover, the learned Tribunal has also erred in awarding the multiplier of 15 when in-fact the multiplier of 14 should be applied as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma & Ors v. Delhi Transportation Corporation & Anr, reported in 2009 (6) SCC 121 and hence cross objections must be allowed and the judgment and award must be modified accordingly. 7] Heard learned advocate Ms. Mita Panchal, learned advocate for the appellants and Ms. Hina Desai, learned advocate for the respondent No. 2. Though served, the other respondents have not appeared.
8] From the records and proceedings of M.A.C.P. No. 1573 of 1999, it transpires that the claimant No. 1 has filed the examination-in-chief at Exh; 36 and she has been cross examined at length by the learned advocate for the opponent No.2-ST Corporation. Admittedly, the claimant No. 1 is not an eye witness to the accident and she has produced the complaint at Exh; 23, panchnama of place of offence at Exh; 24, inquest panchnama at Exh: 25, postmortem note at Exh; 26, the registration certificate of Vicky Lottery Center at Exh: 27, letter of T.D.O. Lunawada at Exh: 28, Certificate of Gujarat State Lottery Rules at Exh: 29, Certificate of Page 5 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined TDO Lunawada at Exh: 30 and mark-sheet of SSC examination of the deceased at Exh: 31. It is the say of the claimant No. 1 that the deceased was working as a lottery agent and doing small business and was earning Rs.5,000/- pm and she has produced the handwritten account at Exh; 39 but beside this, no document to show that the deceased was in fact earning Rs.5,000/- per month is produced on record. The Certificate of Vickey Lottery Center of Lunawada Nagar Palika produced at Exh; 27 is in the name of Pravinchandra Kachhiya and Kaushikkumar Kachhiya and the certificate is for the year 1987 and the certificate produced at Exh; 30 is dated 03.02.1986. There are no other documents produced on record to show that the deceased was in fact doing such type of work and was earning Rs.5000/- per month. On perusal of the complaint produced at Exh: 23, the complaint has been filed by the opponent No. 1 Mukeshbhai Ranchhodbhai Patel, who is the driver of the ST Bus No. GJ-18-V-3573 and in the complaint he has stated that he had left with ST Bus No. GJ-18-V-2573 from Jambusar along with the conductor Yogesh and while the bus was at the place of accident, the scooter was going ahead of his bus and the front bumber of the ST Bus dashed with the scooter as a result of which the scooter fell down and one person was injured and was taken for treatment. On Page 6 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined perusal of the panchnama produced at exh: 24, the left side headlight of the ST bus was broken as a result of the accident and the scooter was damaged at the behind portion and the signal light of the scotter was broken. These documents prove that the driver of the ST bus No. GJ-18-V-3573 dashed with the scooter from behind and hence the learned Tribunal has rightly held the driver of the ST bus 100 % negligent for the occurrence of the accident as the opponent No. 1 had a clear vision of the scooter going in front of the bus and ought to have blown the horn and apply the brakes but has not done so. 9] The opponent No.1 - ST Corporation has, in the cross objections has mainly raised the issue of negligence and the learned advocate for the ST Corporation has vehemently argued that the driver of the scooter, owner and Insurance Company of the scooter ought to have been made parties to the petition and the learned Tribunal ought to have held the driver of the scooter negligent but from the documents as also the complaint, which has been filed by the opponent No. 1, who is the driver of the ST bus GJ-18-V-3573, which is not on record at Exh: 23, the scooter was hit by the ST bus from behind. That the opponent No. 1, who was driving the bus ought to have seen the scooter in the front and ought to have applied the brakes and driven slowly and carefully but no care and caution was Page 7 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined exercised by the opponent No. 1 and the accident has occurred and hence the arguments advanced by the learned advocate for the ST Corporation cannot be sustained.
10] The claimants have also raised an issue of notional income as held by the learned Tribunal and from the documents and the impugned judgment and award, the learned Tribunal has held the notional income of the deceased to be Rs.2000/- pm in the absence of any documentary evidence to show that the deceased was, in fact, earning Rs.5,000/- pm. It is not in dispute that, the claimants have not produced any IT returns or any other document to show the income of the deceased and in absence of any documents and the fact that the accident has occurred on 24" May, 1999, the notional income as held by the learned Tribunal at Rs.2000/- pm is just and proper. Admittedly, the deceased was 45 years on the date of accident, and as per the judgment of Hon'ble Supreme Court in Sarla Verma (supra), if the deceased was between the age of 40- 50 years, 30% of his income should be added as income prospective income and accordingly adding 30%, the monthly income of the deceased, it would be Rs.2600/- pm. The claimants are four dependents and ¼ amount should be deducted for personal expenses, which is Rs.650/- per month and Page 8 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined the loss of dependence would be Rs.1950/- and the annual loss of dependency would be Rs.23400/-. As the deceased was 45 years on the date of the accident, as per the judgment of Sarla Verma (supra), if the deceased was between the age of 40-50 years, the multiplier would be 14 would be applied and accordingly, the claimants would be entitled to get an amount of Rs.3,27,600/- towards loss of dependence. As per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Versus Pranay Sethi and Ors, reported in (2017) 16 SCC 680, and Magma General Insurance Co. Ltd vs. Nanu Ram @ Chuhru Ram & Ors., reported in 2018 (18) SCC 130, the claimants are entitled to Rs.15,000/- towards funeral expenses, Rs. 15,000/- towards loss of estate, Rs.1,60,000/- towards spousal and parental consortium and accordingly, the claimants are entitled to an amount of Rs.5,17,600/- as compensation. The learned Tribunal has awarded an amount of Rs.3,82,000/- as compensation and hence the claimants are entitled to get enhanced amount of Rs.1,35,600/- with interest at the rate of 6% from the date of filing of the claim petition till realization. 12] For the foregoing reasons, the appeal is allowed and the Cross Objections is hereby rejected. The judgment and award Page 9 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023 NEUTRAL CITATION C/FA/3384/2013 JUDGMENT DATED: 09/11/2023 undefined passed by learned judgment and award passed by learned M.A.C. Tribunal (Aux) Panchmahals @ Godhara in Motor Accident Claim Petition No. 1573 of 1999 on 7th January, 2013 is hereby modified and in addition the claimants are entitled to Rs.1,35,600/- as enhanced amount of compensation with interest at the rate of 6% per annum from the date of filing of the claim petition till realization. The Insurance Company is directed to deposit the said amount as early as possible within an outer limit of eight weeks from the date of receipt of the certified copy of this order. After depositing the additional amount of compensation, the same shall be disbursed in favour of the claimants in the proportion apportioned by the learned Tribunal through NEFT/RTGS, after proper verification.
Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil applications, if any, shall stand disposed of accordingly.
Sd/-
(S. V. PINTO,J) VVM Page 10 of 10 Downloaded on : Fri Nov 10 21:03:39 IST 2023