Gujarat High Court
Ahmedabad Municipal Corporation vs Pratapsinh Dahyabhai Limbad on 30 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1279/2012 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1279 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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AHMEDABAD MUNICIPAL CORPORATION
Versus
PRATAPSINH DAHYABHAI LIMBAD & ORS.
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Appearance:
MRS KALPANA K RAVAL(1046) for the Appellant(s) No. 1
MR AJAY R MEHTA(453) for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 30/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Heard Mrs. Kalpana K. Raval, learned advocate for the appellant and Mr. Ajay R. Mehta, learned advocate for the respondents at length. Perused the record. Page 1 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025
NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined
2. The brief facts of the case are as under:
2.1. On 15.10.2003 at about 8.45 am, Kirtibhai Pratapsinh Limbad, aged about 19 years driving his motor cycle bearing registration No.GJ-13-J-8431 was proceeding towards BJ Medical College on the left hand side of the road and at a moderate speed. When he crossed Jay Hind Cross Road to proceed towards Maninagar Cross Road, driver, a Scrap Vehicle bearing registration No.GQE-8239 driven by an employee of opponent No.1 - Ahmedabad Municipal Corporation came at an excessive speed and dashed the motor cycle from behind. Resultantly, Kirtibhai Pratapsinh Limbad sustained serious injuries and succumbed during the treatment. Respondents - original claimants being legal heirs of deceased i.e. claimant Nos.1 and 2 are the parents and claimant Nos.3 and 4 are siblings of deceased filed M.A.C.P. No.1236 of 2003 under Section 166 of the Motor Vehicles Act, 1988 for a compensation of Rs.50,00,000/- before the learned Motor Accident Claims Tribunal No.22, Ahmedabad City, Page 2 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined Ahmedabad.
2.2. Notice of the claim petition was served to the opponent - present appellant, who filed Written Statement at Exh.46 and prayed for dismissal of the claim petition.
Learned Tribunal framed issues at Exh.14. Claimant No.1 - Pratapsinh Dahyabhai Limbad - father of deceased deposed at Exh.16. On behalf of the Corporation - driver Yakubbhai Mustafabhai Shaikh deposed at Exh.84. 2.3. After considering oral as well as documentary evidence, learned Tribunal vide its judgment and award dated 31.1.2012 partly allowed the claim petition and awarded Rs.30,50,000/- in favour of the claimants with interest @ 9% p.a. from the date of petition till its realization. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant - Ahmedabad Municipal Corporation is before this Court.
3. Learned advocate for the appellant submitted that Page 3 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined the alleged accident has taken place because the deceased at the time of accident tried to overtake the vehicle in full speed and in the said process, the bike hit on the front wheel of the vehicle which has occasioned the accident. It is further pointed out by learned advocate for the appellant that the driver of the offending scrap vehicle has deposed at Exh.84. It is also the case of learned advocate for the appellant that in the oral deposition of the driver of the offending scrap vehicle, nothing converse could be elicited by the claimants.
4. It is further submitted that learned Tribunal has failed to appreciate the oral deposition of the driver. In the background of the aforesaid fact, the deceased is required to be held 50% responsible for the accident. The income which has been assessed by the learned Tribunal is erroneous and without any substance.
5. It is further submitted that claimant No.1 who happens to be the father of deceased cannot be said to be Page 4 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined a dependent. It is not established by claimant No.1 that he was dependent upon the income of the deceased. The claimant Nos.3 and 4, as per the say of the claimants, are the siblings of deceased and were minors at the relevant point of time. The income which has been arrived at by the learned Tribunal @ Rs,14,000/- per month and the calculation of compensation based on such income is erroneous in absence of any material. As per the case of claimants deceased was studying 1 st year of MBBS. The other calculations for calculating compensation are exorbitant and without any evidence.
6. Per contra, learned advocate Mr. Ajay Mehta for the respondents - original claimants supported the judgment and award and submitted that the learned Tribunal has considered the oral deposition of the driver of the scrap vehicle and has come to the conclusion that the driver of the vehicle was sole by negligent in causing the accident. The oral deposition of the claimant no.1 is recorded at Exh.16 on 22.6.2005 and, thereafter, on 20.7.2005, Page 5 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined Written Statement Exh.46 is filed by the opponent - Corporation. It is not the case of Corporation in the Written Statement that the Motor Cyclist was overtaking the scrap vehicle at an excessive speed which has resulted into the accident. By taking a somersault in the oral deposition, the driver of the offending scrap vehicle came out for the first time on 16.11.2011 that the Motor Cyclist was competing with other vehicles which resulted into an off balance and dashed with the scrap vehicle. This theory of defence has been raised for the first time which is nothing but an after thought. No such contention was raised by the Corporation in the Written Statement and the claimant was not confronted on this issue during the cross examination.
7. It is further pointed out that the deceased was aged about 19 years and was 1st year MBBS student at the relevant point of time. To substantiate the income, claimant has examined Dr. Smitaben N. Lalani at Exh.81 and the said witness has stated her income as Rs.91,813/- Page 6 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025
NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined and has also produced her pay slip at Exh.82. After assessing the said evidence, learned Tribunal has rightly arrived at a conclusion that the income of the deceased can be said to be Rs.14,000/- per month for the purpose of calculating compensation.
8. Having considered the submissions canvassed by the learned advocates for the respective parties and on perusal of the Record and Proceedings, the facts which are emerging on record are that the deceased was 19 years of age and a student of 1st year of MBBS. On the unfortunate day, he was dashed by the scrap vehicle owned by Ahmedabad Municipal Corporation and driven by the driver who is an employee of the Corporation, from behind which resulted into the untimely death of a young boy. It would be apposite to refer the oral deposition of the driver which is not supported by the contentions raised in the Written Statement. It is equally important to observe that the Corporation remained idle in not filing the Written Statement when the notice of a claim petition was served. Page 7 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025
NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined Written Statement came to be filed by Corporation on 20.7.2005 that too after the claimant deposed on 22.6.2005 at Exh.16. When oral deposition of the driver of the offending vehicle does not inspire any confidence and more particularly, the driver of the offending vehicle could not prove that the bike rider i.e. the deceased was either solely negligent or had contributed majorly in the occurrence of accident, we do not find any reason to disbelieve the findings arrived at by the learned Tribunal. However, we have observed that the learned Tribunal has not considered the loss of love and affection as per the settled law and has awarded a very meager amount to the claimants. We find force in the submission of learned advocate for the appellant that the deceased was a Bachelor and therefore instead of 1/3rd deduction under the head of personal and living expenses, learned Tribunal ought to have considered ½ deduction under the head of personal and living expenses of deceased.
9. As per the law laid down in the case of National Page 8 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680, 50% to be added as prospective income of deceased and multiplier of 18 would be applicable. The claimants are 4 in number, 1/2 amount to be deducted towards personal and living expense of deceased.
10. Taking into consideration the decision in the case of Pranay Sethi (Supra) and in view of above discussion and finding, it would be in the fitness of things to modify the judgment and award passed by the learned Tribunal, as under:-
Particulars Amount in
Rupees
Actual Salary / Income 14,000/-
Prospective Income (50%) 7,000/-
Total... 21,000/-
Deduction towards personal 10,500/-
expenses (½)
Net Monthly Income... 10,500/-
Total Monthly Income × 12 × 18 10,500×12×18
Multiplier
Loss of Dependency 22,68,000/-
Loss of Love and Affection 80,000/-
(Rs.40,000 x 2)
Page 9 of 11
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NEUTRAL CITATION
C/FA/1279/2012 JUDGMENT DATED: 30/01/2025
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Funeral Expenses 10,000/-
Medical Expenses 6,000/-
Total 23,64,000/-
Compensation already awarded 30,50,000/-
by the Tribunal
Excess Compensation 6,86,000/-
(To be refunded to the
appellant)
11. In view of above stated discussions, reasons and our findings so recorded, the present appeal is partly allowed. The following order is passed:
(A) The claimants would be entitled to Rs.23,64,000/- with proportionate cost and interest @ 9% per annum from the date of claim petition till its realization.
(B) As the learned Tribunal has awarded compensation of Rs.30,50,000/- with costs and interest, the appellant - Ahmedabad Municipal Corporation is entitled to get refund of Rs.6,86,000/-.
The learned Tribunal shall refund Rs.6,86,000/- to the Page 10 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025 NEUTRAL CITATION C/FA/1279/2012 JUDGMENT DATED: 30/01/2025 undefined appellant after following due procedure in accordance with law.
(C) Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
(BIREN VAISHNAV, J) (D. M. DESAI,J) vk Page 11 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 00:52:18 IST 2025