Gitaben. Wd/O Baldevbhai ... vs Driver Of St Bus No.Gj-1-Z-3278 ...
2021 Latest Caselaw 3009 Guj

          C/FA/4507/2008                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 4507 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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 ?

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GITABEN. WD/O BALDEVBHAI MOHANBHAI PATEL(TRANSPOSED AS &
                          2 other(s)
                           Versus
     DRIVER OF ST BUS NO.GJ-1-Z-3278 [DELETED] & 2 other(s)
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Appearance:
DELETED(20) for the Appellant(s) No. 1
MR HIREN P VYAS(2269) for the Appellant(s) No. 2,3
MR PM VYAS(997) for the Appellant(s) No. 2,3
MS MONA B RAVAL(713) for the Appellant(s) No. 2,3
MS SEJAL H VYAS(3211) for the Appellant(s) No. 2,3
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                   Date : 22/02/2021

                                  ORAL JUDGMENT

C/FA/4507/2008 JUDGMENT

1. Feeling aggrieved by and dissatisfied by the judgment and award dated 220.12.2006 passed by the Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himmatnagar in MACP No.658 of 1998, the appellants - original claimants have preferred this appeal for enhancement of the compensation under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

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

That, the accident occurred on 23.3.1998. Record indicates that the appellant no.1 and the deceased husband were coming towards Bharuch City at about 06.00 p.m. The record indicates that at that juncture, a bus bearing registration no. GJ­1 Z­3278 belonging to the respondents being driven by his driver in a rash and negligent manner came from behind and overrun the deceased. The deceased sustained fatal injuries and succumbed to the same. An FIR came to be lodged with Bharuch City Police Station bearing CR no. I­85 of 1998. The appellants preferred the present claim petition under Section 166 of the Act and claimed compensation of Rs.11,00,000/­.

C/FA/4507/2008 JUDGMENT

3. It was the case of the appellants that the deceased was working as Works Assistant in M/s. J.M.C. Projects (India) Ltd. and had a monthly salary of Rs.5,000/­. The appellants ­ original claimants examined father of the deceased at Exh.25 and also relied upon the documentary evidence, such as, FIR Exh.27, Panchnama of the place of occurrence of accident Exh.28, inquest Panchnama Exh.29, postmortem note Exh.30 and challan of charge­ sheet Exh.31. The record further indicates that the FIR was lodged by the driver of the S.T. bus and the driver was examined at Exh.60. Upon appreciation of the evidence on record, the Tribunal came to the conclusion that though the father of the deceased in his deposition at Exh.25 has stated that the deceased was working in M/s. J.M.C. Projects (India) Ltd. as Works Assistant and was earning Rs.5,000/­ per month, no "authentic documentary evidence" is produced. The Tribunal also took note of the fact that the photocopy of the salary slip came to be produced by the appellants. Relying upon the I.T.I. certificate at Exh.33, the Tribunal came to the conclusion that in absence of any authentic evidence, notional income of the deceased has to be taken and assessed the same at Rs.2,500/­. After giving benefit of the prospective income, ultimately, the Tribunal

C/FA/4507/2008 JUDGMENT

was pleased to determine yearly income of the

multiplier, awarded a sum of Rs.4,50,000/­ towards future loss of income. The Tribunal, over and above the same, also awarded a sum of Rs.20,000/­ towards conventional allowances and Rs.3,000/­ towards funeral expenses and thus, awarded total compensation of Rs.4,73,000/­ with 7.5% interest per annum from the date of filing of the claim petition till its realization while partly allowing the claim petition. Being aggrieved by the same, the appellants - original claimants have preferred this appeal.

4. Heard Mr. Hiren Vyas, learned advocate for the appellants and Ms. Kiran Pandey, learned advocate for the respondents.

5. Mr. Hiren Vyas, learned advocate for the appellants contended that even though the Tribunal has rightly observed that the pay slip was produced on record, the Tribunal has wrongly discarded such evidence. Mr. Vyas further contended that in claim petition, rigors of proof are not as strict as in Civil Suit and therefore, the Tribunal ought to have determined the income based upon the pay slip at Mark 26/3. Mr. Vyas further submitted that under such circumstances, the method adopted

C/FA/4507/2008 JUDGMENT

by the Tribunal for determining the income of the deceased is erroneous. Mr. Vyas also contended that as per the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, over and above the same, the Tribunal has also committed an error in awarding a meager amount of Rs.20,000/­ towards compensation under the conventional heads and Rs.3,000/­ towards funeral expenses. According to Mr. Vyas, the appeal deserves to be allowed and the just compensation deserves to be awarded to the appellants.

6. Ms. Kiran Pandey, learned advocate for the respondent - S.T. Corporation has supported the impugned judgment and award. Ms. Pandey contended that the pay slip at Mark 26/3 is not proved by the appellant and therefore, the Tribunal has correctly taken notional income of the deceased at Rs.2,500/­ per month. Ms. Pandey contended that as per the law prevailing on the said date, the Tribunal has committed no error in applying 15 multiplier and awarding Rs.20,000/­ as conventional allowances. According to Ms. Pandey, even Rs.3,000/­ paid towards funeral expenses are proper. Ms. Pandey therefore contended that the appeal, being merit­less, deserves to be

C/FA/4507/2008 JUDGMENT

dismissed.

7. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

8. Upon reappreciation of the evidence on record, more particularly, the deposition of father of the deceased at Exh.25, it clearly shows that it was asserted by the appellants ­ original claimants that the deceased son who was working as Works Assistant in M/s. J.M.C. Projects (India) Ltd. was getting salary of Rs.5,000/­ per month. Even in the cross­ examination, the said Deponent has denied the suggestions made by the respondents. As far as the liability is concerned, the same is not in dispute. However, upon reappreciation of the evidence in form of xerox copy of the pay slip at Mark 26/3, though it is not proved beyond doubt, the fact remains that it was brought on record by the appellants - original claimants and hence, the Tribunal ought to have taken into consideration while determining the income instead of going for a notional income. The rigors of proof and the burden of proof are not as strict as in Civil Suit than in a claim petition and even though it is a xerox copy, the same cannot be discarded completely.

C/FA/4507/2008 JUDGMENT

In addition to the same, the record indicates that the respondents have not objected to the same. Upon further perusal of the record and proceedings, it appears that on the contrary, efforts were made by the appellants to examine the authorized person from M/s. J.M.C. Projects (India) Ltd. in the claim petition and even though summons were served, no one has deposed on behalf of M/s. J.M.C. Projects (India) Ltd. In considered opinion of this Court therefore, Mark 26/3 can be made basis to determine the income of the deceased instead of fixing it based on the notional income. Having come to the aforesaid conclusion, upon reappreciation of the pay slip on record, it appears that in the month of February, 1998, the deceased - Baldevbhai Patel was working as Works Assistant and was paid gross salary of Rs.3,465/­. Rs.20/­ came to be deducted towards professional tax and hence, based upon pay slip at Mark 26/3, the income of the deceased would come to Rs.3,445/­. Following the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the appellants - original claimants would be entitled to 50% rise in income as prospective income, which comes to Rs.1,723/­. As there were 3 dependents, one­ third will have to be deducted towards personal expenses. The record clearly

C/FA/4507/2008 JUDGMENT

indicates that the deceased was 23 years old and hence, appropriate multiplier would be 18. Having come to the aforesaid conclusion, the appellants ­ original claimants would be entitled to compensation under the head of future loss of income as under:­

Rs.3,445/­ Income per month + Rs.1,723/­ 50% prospective income = Rs.5,168/­ Income per month ­ Rs.1,723/­ 50% deduction = Rs.3,445/­ Income per month X 12 Yearly = Rs.41,340/­ Annual income X 18 Multiplier = Rs.7,44,120/­ Compensation under the head of future loss of income

9. Over and above the same, the appellants­ original claimants would also be entitled to additional compensation of Rs.70,000/­ as compensation under different conventional heads including funeral expenses and thus, the appellants ­ original claimants would be entitled to total compensation of Rs.8,14,120/­ with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. As the Tribunal has awarded Rs.4,73,000/­, the appellants ­ original claimants would be entitled to additional amount of Rs.3,41,120/­

C/FA/4507/2008 JUDGMENT

with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization with the proportionate costs. The respondents shall deposit the additional amount as per this judgment within a period of 3 months from the date of receipt of this judgment and order.

10. The appeal is thus partly allowed. However, there shall be no order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA, J) MRP