Gujarat High Court
Heirs Of Ratilal Krishanalal ... vs Driver Of Scooter No Gaw-3252, ... on 7 December, 2021
Bench: Hemant M. Prachchhak
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2396 of 2010
With
R/FIRST APPEAL NO. 3636 of 2011
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HEIRS OF RATILAL KRISHANALAL BHAVSAR, ANSUYABEN WD/O
RATILAL & 9 other(s)
Versus
DRIVER OF SCOOTER NO GAW-3252, BHUPATBHAI RAMANLAL PATEL
& 4 other(s)
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Appearance:
MR PARESH DARJI for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
MR ANKIT SHAH(6371) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
MR SUNIL B PARIKH(582) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 3,4
MS KARUNAN RAHEVAR for the Appellant in First Appeal No.3636/2011
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/12/2021
ORAL JUDGMENT
1. The present appeals are arising out the common judgment
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
and award dated 31.12.2009 passed by the Motor Accident
Claims Tribunal (Aux.), Patan (hereinafter referred to as "the
Tribunal") in M.A.C.P. No.610 of 2002 (old M.A.C.P. No.416 of
1992) and M.A.C.P. No.606 of 2002 (old M.A.C.P. No.396 of
1992). The First Appeal No.2396 of 2010 is filed by the
appellants - original claimants for enhancement and First Appeal
No.3636 of 2011 is filed by the appellant - Oriental Insurance
Company Limited.
2. Facts giving rise to the present appeals are that on
28.10.1991, Ratilalbhai Bhavsar (deceased) was travelling as
pillion rider along with Chetankumar on his scooter bearing
registration No.GAL-1024 from Naradipur to Kalol road, which
was driven by Chetankumar and when they reached near
Dhamasana Village, at that time, original opponent no.1 came on
opposite direction driving his scooter bearing registration
No.GAW-3252 in rash and negligent manner and in excessive
speed, dashed on right side of the claimants, as a result of which
Ratilalbhai sustained fatal injuries.
3. Heard learned counsel appearing for the appellants and
learned counsel appearing for the respondent - Insurance
Company.
4. Learned counsel appearing for the appellants submitted
that the accident in question had taken place on 28.10.1991
between two vehicles and deceased was travelling as pillion rider
on the scooter which was driven by appellant no.2 herein. He has
submitted that the Tribunal has not considered the future loss of
income according to the potential earning capacity of the
deceased and has to consider the monthly income of deceased
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
at Rs.5,000/- per month and potential earning capacity more
than at Rs.10,000/- per month and the said income can be done
on the basis that the deceased was educated person and was a
Diploma Civil Engineer and working as contractor. He has
submitted that the Tribunal has erred in awarding Rs.30,000/-
each for loss of consortium and loss of estate instead of
Rs.50,000 and has not granted compensation in form of
conventional amount to the tune of Rs.70,000/- in accordance
with the decision of the Hon'ble Supreme court in the case of
Banglore Metropolitan Transport Corporation Vs. Padma, 2009
ACJ 1336 (SC). Learned counsel appearing for the appellants
has submitted that in view of the aforesaid facts, the present
appeal may be allowed and enhanced the amount of
compensation awarded by the Tribunal, which is on lower side
and the appeal filed by the Insurance Company may be
dismissed.
4.1 The learned counsel appearing for the appellants has
tendered the written submissions regarding negligence which
reads as under.
The appellants state and submit that the accident in
question has taken place on 28.10.1991 between the two vehicle
i.e. scooters GAW - 3252 and GAL 1024. The deceased was
travelling as pillion rider on the scooter number GAL 1024. The
said scooter was driven by the son of the deceased namely
Chetankumar. The learned Tribunal after considering the
evidence on record come to the conclusion that both the
vehicles are negligent to the extent of 50%-50%. son of the
deceased also one of the claimant before the learned Tribunal.
It is submitted that the issue of the negligence which is
decided by the learned Tribunal is on the wrong premise mainly
on the ground that
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
(1) It is submitted that at the time of accident the deceased as
well as son Chetan were injured and required to take immediate
treatment before the hospital. At that time, the offending vehicle
i.e. scooter being GAW - 3252 - driver Bhupatbhai lodge the FIR.
On going through the same, it is crystal clear that the scooter
number GAL 1024 was on correct side of the road. The accident
taken place because of sole negligence on the part of the driver
of Scooter Number GAW 3252.
(2) It is submitted that for the alleged accident the police
authority has filed the Charge Sheet against the driver of scooter
Number GAL 1024 i.e. son of the deceased but ultimately
criminal court has acquitted the driver of scooter Number GAL
1024 i.e. son of the deceased on 30.12.1993. Even the son of the
deceased has also filed the private complaint against the driver
of the offending vehicle and learned court has passed the order
of inquiry under section 156(3) of CRPC. On going through the
same, there is no negligence coming on record on the part of the
scooter driver of scooter Number GAL 1024 i.e. son of the
deceased. Therefore, there is no negligence on the part of the
driver of the scooter Number GAL 1024 i.e. son of the deceased.
Therefore, finding of the negligence to the extent of 50%-50% is
wrong.
(3) Even on going through the findings of the learned Tribunal,
the learned Tribunal believes that deceased was not driver of
any of the vehicles involved in the accident. The learned Tribunal
believes the case and accident as composite negligence of both
the driver. Therefore, in case of composite negligence claimant
can recover the amount of compensation from any of the wrong
doer. [Khenyei Vs. New India Assurance Company Limited and
others, (2015) 9 SCC 273].
(4) In present case, there are number of claimants of the
deceased. One of the claimant is son of the deceased. If the
Honourable Court believes the negligence on the part of driver of
scooter Number GAL 1024 in that case the amount receivable by
the driver of scooter number GAL 1024 son of deceased is
required to be sliced down to the extent of 50% from his share
because other claimants are already there. In alternative, the
learned Tribunal ought not to have awarded any amount in
favour of the driver of scooter Number GAL 1024 son of
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
deceased and ought to have dismissed the claim. Therefore,
there can not be any effect on claim amount which is receivable
by the other claimants.
(5) Even otherwise, the claim which is filed by the driver of
scooter number GAL 1024 son of the deceased, the learned
Tribunal has already deducted 50% amount from that claim for
his share of negligence. In present appeal learned Tribunal has
believed the composite negligence and therefore no amount can
be deducted from the award and other claimants are entitled for
full amount of compensation from any of the wrong doer.
(6) Even in any case, in case of composite negligence, as per
the judgment of the Apex Court in the case of Khenyei Vs. New
India Assurance Company Limited and others, (2015) 9 SCC 273,
one tortfeasor can recover the amount of compensation from
other joint tortfeasors by filing execution petition or appropriate
proceedings. Therefore, there can not be any deduction from the
awarded amount which is receivable by other claimants.
Particulars As per judgment of the As per submission of
Tribunal claimant
Future loss of Date of accident
income 28.10.1991
Date of Birth
15.04.1942
Age : 49 Years
Claim Rs.11,55,000/-
Fatal Accident
(Deceased Ratilal
Kishanlal Bhavsar)
Rs.4,000/- per month so 1/3 Serving as Consulting
(Rs.1,333/-) deducted for Engineer, Salary
personal expenses so Rs.4,000/- Completed
Rs.2,667 per month so Diploma in Civil
Rs.32,004/- per annum Engineering and
multiplier 12 given = prospective as per
Rs.3,84,050/- Pranay Shetty case 25%
(Rs.1000) so Rs.5000
per month and
deducted 1/4th for
personal expenses
(Rs.1,250/-) so after
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
deduction comes to
Rs.3,750/- per month
and Rs.45,000/- per
annum multiplier 13 =
Rs.5,85,000/-
Loss of Estate Rs.20,000 Rs.15,000 as per Pranay
Shetty
Loss of Rs.10,000 Rs.2,00,000 as per AIR
Consortium 2020 SC 3076 for
parental consortium
wife, children and
parents
Rs.40,000 each
Funeral Expenses Rs.2,000 Rs.15,000/- as per
Pranay Shetty
Total Rs.4,16,050 Rs.8,15,000/-
Rs.3,98,950/-
4.2 Learned counsel appearing for the appellants has relied
upon the following decisions.
(1) Khenyei Vs. New India Assurance Company Limited
and others, (2015) 9 SCC 273
(3) Amjiba Wd/o. Narendrasinh alias Kalusinh
Champaksinh Dabhi & 7 Vs. Lilaram Johrilal Yadav & 4
others in First Appeal No.2370 of 2019 dated
16.11.2021.
5. Learned counsel appearing for the Insurance Company has
submitted that the original claimant - Chetankumar is held 50%
contributory negligent and, therefore, 50% amount has to be
deducted from the total compensation payable to the claimants.
He has submitted that one of the claimants is the joint tortfeasor
and, therefore, he cannot be awarded compensation for his own
negligency. He has submitted that the FIR was lodged against
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
Chetankumar and, therefore, this is a case of contributory
negligence and not of composite negligence. He has submitted
that the Tribunal has deducted 50% of the award for negligency
of Chetankumar in cognate matter and thus, the direction to pay
jointly and severally issued by the Tribunal is not just and proper.
He has submitted that the Tribunal has committed an error in
awarding compensation of Rs.4,16,050/- with interest at the rate
of 7.5%. He has prays for dismissal of the appeal filed by the
claimants and also prays for allowing the appeal filed by the
Insurance Company.
5..1 Learned counsel appearing for the Insurance Company has
relied upon the following decisions.
(1) United India Insurance Company Limited Vs.
Kiritikumar Tulsibhai Patel in First Appeal No.1450 of
2016 dated 01.09.2016.
(2) The New India Assurance Company Limited Vs. Minor
Himaniben and others in First Appeal No.3926 of 2007
dated 10.06.2015.
(3) Arvindbhai Hamirbhai Pardhi L.R. of Vimlaben A.
Pardhi and others Vs. Ravjibhai Khimjibhai Patel and
others in First Appeal No.703 of 2011 dated
07.02.2011.
6. The Hon'ble Apex Court in the case of Khenyei (supra),
has held in para-22 as under:
"2. What emerges from the aforesaid discussion is as
follows:
22.1 In the case of composite negligence, the plaintiff /
claimant is entitled to sue both or any one of the joint
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
tortfeasors and to recover the entire compensation as
liability of joint tortfeasors is joint and several.
22.2 In the case of composite negligence, apportionment of
compensation between two tortfeasors vis-avis the
plaintiff / claimant is not permissible. He can recover at his
option whole damages from any of them.
22.3 In case all the joint tortfeasors have been impleaded
and evidence is sufficient, it is open to the Court / Tribunal
to determine inter se extent of composite negligence of the
drivers. However, determination of the extent of negligence
between the joint torfeasors is only for the purpose of their
inter se liability so that one may recover the sum from the
other after making whole of the payment to the plaintiff /
claimant to the extent it has satisfied the liability of the
other. In case both of them have been impleaded and the
apportionment / extent of their negligence has been
determined by the Court / Tribunal, in the main case one
joint tortfeasor can recover the amount from the other in
the execution proceedings.
22.4 It would not be appropriate for the court / Tribunal to
determine the extent of composite negligence of the
drivers of two vehicles in the absence of impleadment of
other joint tortfeasors. In such a case, impleaded joint
tortfeasor should be left, in case he so desires, to sue the
other joint tortfeasor in independent proceedings after
passing of the decree or award.
7. In the case of Amjiba Wd/o. Narendrasinh alias
Kalusinh Champaksinh Dabhi (supra), the Division Bench of
this Court has observed in paragraph no.5 as under:
5. Mr. Kaash Thakkar, learned advocate appearing for the
appellants has heavily relied upon the deposition of
Mr.Ankit Pravinchandra Pathak, the employer of the
deceased as well as the certificate dated 5.6.2017 at
Exh.39 and has further contended that the Tribunal has
committed an error in determining the income of the
deceased at Rs.5,000/- p.m. Mr. Kaash Thakkar, learned
advocate further referring to the cross-examination of the
said witness contended that the Insurance Company has
not been able to disprove any such aspect in the cross-
examination of the said witness. Referring to the
deposition of the said witness it was contended by Mr.
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
Thakkar that when the evidence was there, the Tribunal
had no jurisdiction to apply principle of "guess work" and
determine the income at Rs.5,000/- p.m. Mr. Thakkar,
learned advocate, therefore contended that the income
should have been determined at Rs.18,000/- p.m. Relying
upon the judgement of the Apex Court in the case of
United India Insurance Co. Ltd. v. Satinder Kaur @
Satwinder Kaur & Ors. reported in AIR 2020 SC 3076, it was
contended by Mr. Thakkar, learned advocate appearing for
the appellants that the Appellant Nos. 2 and 3 who were
minors would be entitled to parental consortium. It was
also further contended that the Appellant Nos. 4 and 5
being father and mother of the deceased be entitled to
filial consortium. On the aforesaid grounds, it was
contended by Mr. Thakkar, that the appeal be allowed and
the impugned judgement and award be modified.
8. I have considered the submissions canvassed by the
learned counsel appearing on behalf of both the sides and
perused the materials placed on record. It emerges from the
record that the Tribunal has on assumption and presumption
passed the impugned award and thereby held the drivers of both
the vehicles responsible for the accident in question and liable
50% contributory negligency. It also emerges that while
considering the case of deceased Ratilal K. Bhavsar, the Tribunal
has also committed an error in calculating the amount of
quantum and award of compensation. From the impugned
award, it appears that though the Tribunal has held 50% liable to
the original claimant, for which the Tribunal has answered issued
no.1 in the affirmative i.e. in favour of the claimants. So far as
the compensation awarded in favour of the driver of scooter
bearing registration no.GAL - 1024 i.e. son of the deceased
Chetankumar is concerned, 10% share of the driver requires to
be deducted from the total amount of compensation since he is
driver and owner of the scooter involved in the alleged offence.
Therefore, he cannot claim compensation for his own wrong.
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
9. Considering the facts of the case and the aforesaid
decisions cited at the bar, I am of the opinion that first appeals
filed by both the sides deserve to be partly allowed. So far as
enhancement appeal is concerned, the amount of compensation
deserves to be enhanced. The just and proper compensation is
accordingly redetermined as under:-
Future loss of income Rs.5,85,000/-
Rs.4,000/- x 25% (as per decision
of Pranay Shethi) = Rs.5,000/-
per month X 1/4th personal
expenses = Rs.1,250/- =
Rs.3,750/- per month and
Rs.45,000/- per annum x 13
Loss of Estate (as per decision of Rs.15,000
Pranay Shethi)
Loss of Consortium Rs.2,00,000
(as per AIR 2020 SC 3076)
for parental consortium
wife, children and parents
Rs.40,000 each
Funeral Expenses Rs.15,000/-
Total Rs.8,15,000/-
- compensation awarded by the Rs.4,16,050/-
Tribunal
Total Amount Rs.3,98,950/-
10. Accordingly, a sum of Rs.8,15,000/- requires to be awarded
towards future loss of income, which is just and reasonable
compensation and the same is awarded in substitution awarded
by the Tribunal.
11. For the reasons aforestated, I proceed to pass the following
order.
C/FA/2396/2010 JUDGMENT DATED: 07/12/2021
(i) First Appeal No.2396 of 2007 is allowed in part to the
aforesaid extent. The Insurance Company is directed
to deposit remaining substituted amount before the
Tribunal expeditiously at any rate within an outer limit
of eight weeks from the date of receipt of certified
copy of this order with running interest at the rate of
7.5% from the date of application till realization of the
amount.
(ii) First Appeal No.3636 of 2011 is allowed in part. So far
as the compensation awarded in favour of the driver
of scooter bearing registration No.GAL-1024 i.e. son
of the deceased - Ratilal K. Bhavsar, Chetankumar is
concerned, 10% share of the driver shall be deducted
from the total amount of compensation since he was
driver and owner of the scooter and 90% apportioned
in nine claimants as per apportionment and order for
deposit as made by the Tribunal in paragraph no.14
of the operative portion of the order shall hold good
for the substituted award.
Record and proceedings be sent back to the
concerned Tribunal forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
