Minaxiben Wd/O Sanjaybhai ... vs Sabebhusan Shoukin Singh
2021 Latest Caselaw 18478 Guj

      C/FA/3949/2019                                 JUDGMENT DATED: 16/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3949 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

==========================================================

1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law as
      to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
            MINAXIBEN WD/O SANJAYBHAI CHANDUBHAI MALI
                                 Versus
                     SABEBHUSAN SHOUKIN SINGH
==========================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4,5
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
NOTICE UNSERVED(8) for the Defendant(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                Date : 16/12/2021

                              ORAL JUDGMENT

(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

1. Feeling aggrieved and dissatisfied by the impugned judgement and award dated 13.7.2018 passed by the Motor Accident Claims Tribunal (Aux.) Vadodara in MACP No.1188 of 2013, the appellants - original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short).

2. Following facts emerge from the record of this appeal:

2.1. The accident occurred on 6.6.2013 at about 3:15 to 4:00 p.m. Shri Sanjaybhai Chandubhai Mali - the deceased was coming towards Vadodara from Limdi via Chakaliya on his motorcycle bearing registration No.GH-06-EM-2674 and Shri Khristodas Barai was a pillion rider. It is the case of the claimants that the deceased was driving his motorcycle on left side of the road slowly and when he reached near the place of occurrence, a Luxury Bus bearing registration No.MP-33- PA6161 came in a rash and negligent manner at a very fast speed and dashed with the motorcycle from its front side and the offending bus dragged the deceased. Shri Sanjaybhai sustained severe head injury with multiple fractures. He was admitted to K.K.Surgical Hospital at Dahod and then shifted to Sangam Hosital at Vaoddara for further treatment, where he was treated as indoor patient from 6.6.2013 to 11.6.2013. He was then admitted to Global Baroda Hospital where he remained indoor patient upto 19.6.2013. The deceased was then transferred to SSG Hospital at Vadodara and was treated as indoor patient from 19.6.2013 to 26.8.2013. After the discharge from the hospital, the deceased was in vegetative condition and was advised to take follow up treatment and dressing. The deceased succumbed to his injuries on

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

13.10.2013. The appellants preferred claim petition under Section 166 of the Act and claimed compensation of Rs.50,00,000/-. The appellants also adduced following oral as well as documentary evidence before the Tribunal.

Sr.No. Particulars                                                                     Exh.
           Oral Evidence

1. Affidavit in form of examination-in-chief led by the 36 claimant no.1-Minaxiben Sanjaykumar Mali (Widow of the deceased)

2. Deposition of the claimants' witness shri A.A.Saiyed 59 (I.T. Inspector, Vadodara) Documentary Evidence

1. Certified copy of the FIR regarding the accident 38

2. Certified copy of the panchnama of scene of accident 39

3. Certified copy of the police statement of the claimant 40 No.5 (mother of the deceased)

4. Certified copy of the police statement of the cousin 41 brother of the deceased

5. Certified copy of the Tourist Permit of the offending 42 Luxury Bus No.MP-33-PA-6161

6. Certified copy of the Fitness Certificate of the 43 offending Luxury Bus No.MP-33-PA-6161

7. Certified copy of the RC Book of the offending 44 Luxury Bus No.MP-33-PA-6161

8. Certified copy of the driving licence of the opponent 45 no.1

10. Treatment case papers issued by K.K.Surgical Hospital 47 & Trauma Care Centre, Dahod.

11. Case Summary issued by Sangam Hospital, Vadodara 48

12. Discharge Summary issued by Global Baroda Hospital, 49 Vadodara

13. Discharge Card issued by SSG Hospital, Vadodara 50

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

15. Copy of the birth certificate of the claimant No.1. 52

16. Copy of the birth certificate of the claimant No.2. 53

17. Copy of the birth certificate of the claimant No.3. 54

18. Copy of the birth certificate of the claimant No.4. 55

20. Certified copies of the Income-Tax returns filed by 61 the deceased for the assessment Year 2008-09 to to

21. Income-tax returns for the A.Y. 2007-08 filed by the 66 deceased

22. Original bills/receipts of hospital charges, medicines etc. for total Rs.3,61,299/-

3. Claimant No.1 is a widow, claimants No. 2 to 4 are minor children and claimant No.5 is the father of deceased. The Tribunal after appreciation of oral and documentary evidence on record decided as under:

(i) For negligence the Tribunal hold the driver of Luxury Bus negligent to the extent of 80% and rider of motorcycle (deceased) negligent to the extent of 20%.

(ii) For compensation, the Tribunal awarded total compensation of Rs.27,63,200/- under different heads as under:

Loss of dependency                             Rs.30,24,000/-
Conventional Amount                                             Rs. 70,000/-
Medical Expenses                                                Rs.3,60,000/-
Total                                                           Rs.34,54,000/-
20% deducted towards contributory negligence                     Rs.6,90,800
of the deceased
Total amount of compensation                                    Rs.27,63,200/-





        C/FA/3949/2019                                     JUDGMENT DATED: 16/12/2021

4. Being aggrieved and dissatisfied by the said judgement and award dated 13.7.2018, the present Appeal is filed by the appellants- original claimants.

5. We have heard Mr. Mohsim Hakim, learned advocate appearing for appellants No. 1 to 5 and Mr. Yogi Gadhia, learned advocate for Respondent No.3 - Insurance Company. As liability has not been denied, the presence of Respondent Nos. 1 and 2 is not necessary for deciding this appeal. Considering the issue involved, with the consent of learned advocates appearing for the parties, the appeal is taken up for final disposal.

6. Considering the issue involved and with the consent of the parties, the present appeal is taken up for final hearing.

7. Mr. Mohsim Hakim, learned advocate for the appellants- original claimants contended that the order of the Tribunal is erroneous on the following grounds:

(i) The Tribunal has erred in attributing 20% negligence on part of the deceased. Referring to the FIR at Exh.38 and panchnama at Exh.39, he submitted that evidence clearly shows that luxury bus came on the wrong side and dashed with the motorcycle of the deceased. Therefore, it is a case of 100% negligence of driver of the luxury bus.

(ii) The Tribunal has erred in not granting any compensation for pain, shock and suffering. He submitted that the accident took place on 6.6.2013 and deceased ultimately during treatment expired on 13.10.2013. The deceased continuously

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

took treatment at different hospitals. He survived for more than 4 months from the date of accident and, therefore, the claimants are entitled for compensation under the head pain, shock and sufferings. He, therefore, submitted to grant Rs.1,00,000/- for pain, shock and sufferings.

(iii) The Tribunal has erred in not granting the attendant and transportation charges. Referring to the period of hospitalization, he submitted that the injury sustained by the deceased and the treatment period, clearly shows that the deceased required constant attendance during the said period. He submitted to grant Rs.50,000/- under the head attendant and transportation charges.

(iv) Referring to the decision of the Hon'ble Supreme Court I the case of Sarla Vera (Smt) & Ors. v. Delhi Transport Corporation and Anr. (2009) 6 SCC 121 and National Insurance Company Ltd. v. Pranay Sethi and Ors. (2017) SCC 680, he submitted that the claimants are entitled for appropriate compensation under other conventional heads.

(v) Relying upon the decision of Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Ors. (2018) 18 SCC 130, Satinder Kaur alias Satwinder Kaur v. United India Insurance Co. Ltd. AIR 2020 SC 3076 and New India Assurance Company Ltd. v. Somwati and Ors. (2020) 9 SCC 644, he submitted that the claimants are entitled for filial consortium and parental consortium.

8. Other grounds of appeal are not pressed by Mr. Mohsim Hakim, learned advocate for the appellants. He thus, prayed

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

to allow the appeal on the above grounds.

9. Per contra, Mr. Yogi Gadhia, learned advocate appearing for respondent No.3 - Insurance Company submitted that there is no error in the impugned judgement and award. He submitted that the judgement and award dated 13.7.2018 is based on the evidence available on record and, therefore, requested to dismiss the appeal.

10. No other and further submissions/contentions are made by learned advocates appearing for the parties in this appeal.

11. We have heard learned advocates appearing for the parties and re-appreciated the evidence on record. In relation to negligence, we are of the opinion that no error is committed by the Tribunal in attributing 20% negligence on the part of the deceased and 80% negligence to the driver of the luxury bus. The fact shows that the accident took place in the broad day light at 3:15 - 4 p.m. in the afternoon. The panchnama at Exh.39 refers to the head on collusion between the luxury bus and motorcycle. The road was straight and wide. It is not denied that the luxury bus being a bigger vehicle, the driver of the bus is expected to be more careful but driver of the motorcycle is also required to be careful while driving. Therefore, the Tribunal has correctly attributed 20% negligence on the part of the deceased.

12. With regard to quantum the income of the deceased was assessed by the Tribunal relying upon the income tax returns filed by the claimants for the assessment year 2008-2009 to 2012-2013. The return filed for assessment year 2012-2013, is

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

in proximity to the date of the accident where income was shown at Rs.1,92,710/-. Therefore, the monthly income assessed at Rs.16,000/- in our opinion is just and proper. The deceased was aged 39 years at the time of accident and therefore, 40% prospective income is required to be added for future loss of income, which the Tribunal assessed correctly as under:

"Rs.16,000 + Rs.6,400/- (40% prospective income) = Rs.22,400/- p.m. x 12 (pa) = Rs.2,68,800/- - Rs.67,200 (1/4th deducted towards personal expenses of deceased) = Rs.2,01,600/- x 15 (age of deceased was 39 years) = Rs.30,24,000/-."

13. For compensation under the head of pain, shock and suffering, we are of the opinion that Rs.25,000/- would be appropriate as the deceased was hospitalized nearly for a period of 4 months prior to his death. On account of his hospitalization and the treatment for a period of more than 4 months, Rs.15,000/- would be appropriate under the head attendant and transportation charges. As the deceased was survived by widow, three minor children and mother, Rs.40,000/- each would be appropriate as spousal, parental and filial consortium. Considering the period of treatment Rs.15,000/- in our opinion is appropriate for attendant and transportation charges. Rs. 30,000/- would be appropriate for funeral expenses and loss of estate. Thus the claimants are entitled for the total compensation as under:-

C/FA/3949/2019 JUDGMENT DATED: 16/12/2021

Loss of Dependency Rs.30,24,000/-

Medical Expenses                     Rs.3,60,000/-
Loss of consortium                   Rs.2,00,000/-
Pain, shock and sufferings           Rs.25,000/-
Funeral Expenses and Loss of         Rs.30,000/-
estate
Attendant charges and                Rs.15,000/-
Transportation charges
Total                                Rs.36,54,000/-
Deducting 20% negligence of          Rs.7,30,800/-
deceased
Total Compensation                   Rs.29,23,200/-

14. As the Tribunal has awarded an amount of Rs.27,63,200/-, the respondent Insurance Company shall deposit the balance amount of compensation of Rs.1,60,000/- (Rs.29,23,200 - Rs.27,63,200) with 9% interest p.a. from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. Appeal is thus partly allowed. The rest of the judgment and award passed by the learned Tribunal has remained unaltered. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) NAIR SMITA V.