Gujarat High Court
Transport Manager A'Bd Mun. ... vs Mayurikaben Hasmukhbhai Patel on 14 December, 2021
Bench: Hemant M. Prachchhak
C/FA/3748/2006 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3748 of 2006
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TRANSPORT MANAGER A'BD MUN. TRANSPORT SERVICE
Versus
MAYURIKABEN HASMUKHBHAI PATEL & 1 other(s)
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
C S SHUKLA(7549) for the Defendant(s) No. 1
MR SM SHUKLA(1192) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/12/2021
ORAL ORDER
1. The present first appeal is filed by the appellant-Transport
Manager, Ahmedabad Municipal Transport Service, being
aggrieved and dissatisfied with the judgment and award passed by
the learned Motor Accident Claims Tribunal (Auxiliary),
Ahmedabad in Motor Accident Claim Petition No. 1636 of 1998 on
31.01.2006.
2. The brief facts giving rise to the present appeal are as under:
2.1 On 10.10.1998 at about 07:00 PM, the defendant tried to
cross the road near Devendra Bus Stop, Devendra Society
Bunglow No. 15/2, Naranpura. She tried to cross the road to catch
the AMTS Bus on the above bus stop. It is further alleged that at
that very time, the bus of Route No. 300 struck the defendant and
on account of that she fell down, the front wheel of the bus
overrunned the left leg of the defendant.
C/FA/3748/2006 ORDER DATED: 14/12/2021
2. The present appellant-original opponent No. 1 has
challenged the impugned judgment and award on the ground of
negligency and the quantum of the compensation. The claimant
has not filed any appeal and not challenged the impugned
judgment and award.
3. Learned advocate for the appellant submitted as under:
3.1 The Tribunal has erred in holding that, the driver of the
A.M.T.S. is driving the bus in a rash and negligent manner and
therefore the accident was occurred and wrongly held that, due to
accident the driver of the bus is liable. In fact, it is required to be
appreciated that, as such accident was occurred on 10.10.1998 at
about 7.00 P.M. when the claimant was tried cross the road to
catch the bus, so, hurriedly resulted in to the injuries accident for
that neither driver nor A.M.T.S. could be held liable for the
accident. He has further submitted that the Tribunal ought to have
considered that, as per the Panchanama of the place of accident
prepared by the police clearly shows that the claimant tried to
cross the road hurriedly in front of the bus of A.M.T.S. with the
intention that, the driver of the A.M.T.S. may stop the bus on
seeing the claimant as the claimant wanted to catch the bus. It is
required to be considered that, as such driver of the bus was not
expecting that, the claimant who was crossing the road in front of
the bus, when the bus of the A.M.T.S. was already started,
therefore there is no fault of driver for the accident. It is stated that
as such because of the negligence on the part of claimant, the
accident occurred, therefore A.M.T.S. should not be held liable for
the accident.
C/FA/3748/2006 ORDER DATED: 14/12/2021
3.2 He has further submitted that the Tribunal ought to have
considered that, as per the deposition of the driver of the bus of
the A.M.T.S. at Exh. 30 wherein, the driver had clearly stated that,
at the time of accident the bus of A.M.T.S. was stationed at
Devendra Park bus stop and the passenger was getting aboard at
that time, the claimant collided with one scooter when the claimant
was trying to cross road hurriedly. It is stated that, the Tribunal
erred in holding that, the claimant was a passenger and therefore,
it is a duty of the driver of the vehicle on the road to see that, the
vehicle does not cause injury to any person. In fact, looking to the
mode of the accident, it appears that in the present case the
claimant is also negligent for the accident as the claimant had also
trying to catch the bus by crossing the road hurriedly.
3.3 He has further submitted that the Tribunal has erred in
calculating the amount for the compensation and wrongly
assessed Rs.2,70,000/- under the head of future loss of income by
taking the income of Rs.1,80,000/- per annum by giving multiply of
15 years without any justification and had also erred in awarding
Rs.7,000/- under the head of pain, shock and suffering and
Rs.40,000/- under the head of actual loss of income.
4. Learned advocate for the defendant has prayed for dismissal
of the present petition.
5. While considering the documentary evidences and the facts
of the present case, I found that the learned Tribunal has
committed an error while considering the income of the injured as
there being no proof of any documentary evidence of the injured.
Since the injured was working as a teacher in a private school from
C/FA/3748/2006 ORDER DATED: 14/12/2021
1983 onwards, but there is no documentary evidence to the effect
to be produced before the learned Tribunal, and therefore, learned
Tribunal merely on guesswork had considered the income of the
injured, and therefore, committed an error while passing the
impugned award. Even considering the age of the injured, the
multiplier is also awarded by the Tribunal, is on higher-side instead
of 14, the Tribunal has awarded the multiplier of 15, therefore, the
present appeal is partly succeeded to the extent that the amount
awarded is Rs. 2,80,000/- towards the future loss of income,
instead of that the amount be given to Rs. 2,52,000/-. Even the
rate of interest is also awarded 9% so that it is also required to be
awarded at the rate of 7.5%.
6. Considering the above-mentioned facts and the documentary
evidence, the present appeal succeeds and the amount is
awarded to the injured respondent is to be substituted to that
extent. The Tribunal is directed to refund the difference amount of
Rs. 80,000/- which is lying in the FDR, along with proportionate
interest to the Corporation and remaining amount be disbursed to
the claimant. The interest is to be considered at the rate of 7.5%
from the date of application till the realization of the award.
7. The Registry is directed to communicate the order to the
learned Tribunal for its further adjudication. The Record and
proceedings be transmitted to the Tribunal forthwith.
(HEMANT M. PRACHCHHAK,J)
T. J. Bharwad
