Divisional Controller vs Heirs Of Decd. Somabhai ...
2021 Latest Caselaw 4899 Guj

         C/FA/850/2013                                           JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.              850 of 2013


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA                                         sd/­

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1     Whether Reporters of Local Papers may be                               NO
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                                NO

3     Whether their Lordships wish to see the                                NO
      fair copy of the judgment ?

4     Whether this case involves a substantial                               NO
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                 DIVISIONAL CONTROLLER
                         Versus
HEIRS OF DECD. SOMABHAI PRATAPBHAI BAMANIYA & 3 other(s)
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Appearance:
MR HARDIK C RAWAL(719) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No.
1.1,1.2,1.3,1.4,1.5,2,3,4
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                             Date : 31/03/2021

                                 ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 06.08.2012 passed by the Motor Accident Claims Tribunal (Main), Panchmahal at Godhra, the appellant ST Corporation has preferred this appeal under

C/FA/850/2013 JUDGMENT

Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 That the accident took place on 26.09.2007, at about 7.00 am. It is the case of the claimant that deceased Somabhai was driving the motorcycle registered as GJ­17­Q­6329 along with pillion rider Ashwinkumar and when they reached near the place of incident, one ST Bus bearing Registration No. GJ­18­V­8172, driven in a rash and negligent manner, heavily dashed with the motorcyclist due to which both of them sustained serious injuries and succumbed to such injuries. The FIR as lodged with the jurisdictional police station at exhibit 22 and the present claim petition was filed by the heirs of deceased Somabhai being 1751 of 2007 and claimed compensation of Rs. 13,60,000/­. One of the claimant was examined at exhibit 26 and as such the other claim petition which was filed by the pillion rider was also heard along with this claim petition. It appears from the record that same set of evidence as adduced by both the claimants being FIR at exhibit 22, panchnama at exhibit 23, inquest panchnama at exhibit 24, insurance police of the motorcycle at exhibit 34, PM Note of deceased Somabhai at exhibit 25.

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2.2 The Tribunal after considering the evidence on record, determined the income of the deceased at Rs.3,000/­ per month and applying multiplier of 18, after deducting 1/4th towards personal expenses, awarded total sum of Rs. 6,91,000/­ granted under the head of loss of dependency and Rs. 9,000/­ as funeral expenses and Rs. 30,000/­ under head of other conventional award and thus, awarded a total sum of Rs. 7,30,000/­. Considering the FIR and panchnama, the Tribunal had come to the conclusion that the driver of both the vehicles, i.e., the ST bus and the motorcycle, were negligent and assessed the negligence of the deceased as driver of the motorcycle to the extent of 10%. and thus, while partly allowing the claim petition, awarded a sum of Rs. 6,57,000/­ with 9% interest p.a. and feeling aggrieved by the same, the present appeal is filed by the ST Corporation.

3. Heard Mr. Hardik Raval, learned advocate for the appellant ST Corporation. Though served, no one appears for the other respondents.

4. I have also perused the original Record and Proceedings.

5. Mr. Raval, learned advocate appearing for the appellant ST Corporation has vehemently submitted that the Tribunal has wrongly attributed the extent of negligence to the tune

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of 90% upon the driver of the ST Corporation. According to Mr. Raval, the Tribunal has misread the panchnama at exhibit 23 and without appreciating the manner in which the accident has occurred, the Tribunal has attributed 10% negligence to the driver of the motorcycle. Mr. Raval further referring to the panchnama at exhibit 23, contended that the accident occurred only because of the negligence on the part of the motorcyclist. Mr. Raval contended that the deceased should have been more careful when he was driving a two wheeler, that too on a highway. Mr. Raval therefore submitted that as per the evidence on record and considering the manner in which the accident has taken place, even though both the drivers may be contributorily negligent, the negligence would have been assessed at 50:50 between drivers of both the vehicles involved in the accident. Mr. Raval further contended that the Tribunal has wrongly determined the income of the deceased at Rs. 3,000/­ per month and has wrongly given benefit of proportionate income of Rs. 1,000/­ per month. According to Mr. Raval, on same set of evidence, while passing the common judgment and award in the case of pillion rider, the Tribunal has assessed the income of Rs.2,500/­. Mr. Raval therefore contended that without their being evidence on record, the Tribunal has wrongly relied upon the judgment of the Apex Court in the case of Santosh Devi Vs. National

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Insurance Co. Ltd. reported in AIR SC 2185 and has fixed the higher figure as income of the deceased. On the aforesaid two grounds, Mr. Raval vehemently contended that the Tribunal has awarded excessive amount as compensation to the Respondents­claimants. According to Mr. Raval, the appeal deserves to be allowed and the impugned judgement and award deserves to be modified.

6. No other or further submissions have been made by the learned advocate appearing for the appellant.

7. Upon re­appreciation of the evidence on record and considering the FIR at Exhibit 22 and panchnama of the scene of the accident at exhibit 23, it clearly transpires that the accident occurred in such a manner that the deceased motorcyclist was dragged with the bus at about 7 Ft. away. The said fact shows the manner in which the heavy vehicle like bus was being driven by the driver. Upon re­ appreciation of the the oral deposition of the original claimant at exhibit 26, it cannot be said that the accident occurred because the deceased could not take care and lost control of the motorcycle. The Tribunal has rightly observed that the ST bus being a heavy vehicle should have been more careful. Upon re­ appreciation of the evidence as a whole and considering the manner in which the accident has

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occurred, no interference is called fro as far as negligence is concerned. Similarly, upon re­ appreciation of the evidence on record and considering the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121 and in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, in opinion of this Court, what has been awarded by the Tribunal as compensation is just compensation. On the contrary, following the judgement of the Apex Court in the case of Pranay Sethi (supra), the respondents­claimants would be entitled to additional compensation under different conventional heads and therefore, no alteration or modification is call for as far as the quantum is concerned. Resultantly, the appeal fails and is hereby dismissed. However, there shall be no order as to costs. Record and proceedings be transmitted back to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) BIJOY B. PILLAI