Transport Manager vs Nilamben Ashishbhai Shah Wd/O. ...
2021 Latest Caselaw 17499 Guj

         C/FA/2197/2006                              ORDER DATED: 22/11/2021



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/FIRST APPEAL NO. 2197 of 2006
                        With
          R/CROSS OBJECTION NO. 60 of 2012
                          In
            FIRST APPEAL NO. 2197 of 2006
=========================================
                 TRANSPORT MANAGER
                       Versus
 NILAMBEN ASHISHBHAI SHAH WD/O. DECD. ASHISHBHAI & 4
                        other
=========================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 5
MR SANDIP C SHAH(792) for the Defendant(s) No. 1,2,3,4
=========================================

 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                               Date : 22/11/2021

                           COMMON ORAL ORDER

1. The common judgment and award dated 4 th October, 2005 passed in Motor Accident Claim Petition no.372 of 1998 is impugned in this appeal and the cross-objection at the instance of Transport Manager (AMTS) and the original claimants. The original claim of the claimants was Rs.15,00,000/- (Rupees Fifteen Lacs only), against which the tribunal has awarded a sum of Rs.10,68,800/- as under :-

 Sr.        Amount in                      Under the head of
 No.         Rupees
     1        13,14,000/- Future Loss of Income
     2             20,000/- Conventional amount & Consortium to the widow
     3          2,000/- Funeral Ceremony
            ========
             13,36,500/- GRAND TOTAL

- 2,67,200/- 20% negligence on the part of the driver of the ======== scooter - the deceased 10,68,800/- TOTAL

C/FA/2197/2006 ORDER DATED: 22/11/2021

2. The learned Tribunal has held the driver of the scooter i.e. the deceased as 20% negligent, whereas the driver of the bus as 80% negligent in the accident that had occurred on 18 th January, 1998. It is the say of the claimants that because of the rash and negligent driving on the part of the driver of the bus, the accident took place and resultantly Ashishbhai had died. It is the case of the claimants that the deceased was earning Rs.1,00,000/- per year from the business of cloth whole-seller.

3. In view of the aforesaid, the claimants had approached the tribunal under Section 166 of the Motor Vehicles Act, 1988 (herein after referred as "the M. V. Act" for brevity) seeking, interalia, compensation to the tune of Rs.15,00,000/- under the various heads. Upon service of notice, the driver of the AMTS appeared before the learned Tribunal and filed written statement at Exh.15, wherein the claim petition filed by the claimants was highly contested.

4. The Tribunal, having considered the evidence produced on record, came to the conclusion that it is the case of contributory negligence and thereby 20% negligency attributed to the deceased himself and 80% came to be attributed to the driver of the bus.

5. The Tribunal to award compensation, assessed the income of the deceased per annum @ Rs.73,142/- by taking into consideration Income Tax returns that were produced on record by the claimants. The Tribunal has further considered the aspect of prospective rise in the income at 50%, which came to be assessed ultimately as Rs.1,09,500/-. The Tribunal has considered the age of the deceased as 26 years and thereby multiplier of 18 came to be awarded. The Tribunal has also deducted 1/3 rd amount towards the personal

C/FA/2197/2006 ORDER DATED: 22/11/2021

expenditure. Thus, Rs.73,000/- came to be assessed as yearly dependency loss. Now, multiplying it with 18, the loss under the dependency came to Rs.13,14,000/-. The Tribunal has further awarded amount of Rs.10,000/- as conventional amount and Rs.15,000/- for the consortium to the widow. The learned Tribunal has also awarded a sum of Rs.2,000/- towards expenditure of funeral ceremony. Thus, in all Rs.13,36,500/- came to be awarded. From the said amount, the learned Tribunal has deducted a sum of Rs.2,67,200/- i.e. 20% of the total amount towards own negligency of the driver of the scooter. Under the circumstances, the learned Tribunal has awarded a sum of Rs.10,68,800/- with 8% interest from the date of the petition till realization to the claimants.

6. Being aggrieved by the aforesaid judgment and award, the original opponent no.2 - AMTS, has approached this Court by way of an appeal under Section 173 of the M.V. Act challenging the award on the ground of higher contributory negligency attributed to it and as against that the original claimants have also filed cross- objection in the said appeal for attributing 20% negligency, as well as, for quantum.

7. Heard Mr. H.S. Munshaw, learned advocate, as well as, Mr. Sandip Shah, learned advocate for the appellant - AMTS and original claimants respectively. It is pertinent to note here that the appellant/AMTS has filed the present appeal challenging, interalia, attribution of negligency because according to them the deceased who himself was the sole negligent and thereby no negligency could have been attributed to them. So far as the quantum part is concerned, no dispute whatsoever was taken.

8. As against that, the claimants have filed cross-objection on

C/FA/2197/2006 ORDER DATED: 22/11/2021

both the counts i.e. attribution of 20% negligence, as well as, inadequate compensation.

9. Mr. Munshaw, learned advocate for the appellant - AMTS, has submitted that the tribunal has grossly erred in holding the driver of the bus as negligent to the extent of 80% and that has resulted because of non-application of mind by the learned Tribunal. Mr. Munshaw, learned advocate for the appellant - AMTS has further submitted that the accident in question took place only because of negligency on the part of the deceased i.e. scooterist, who dashed the bus from behind. Mr. Munshaw, learned advocate to substantiate the said contention took this Court to the evidence produced before the learned Tribunal i.e. the scene of panchnama, as well as, the deposition of the driver of the bus. Mr. Munshaw, learned advocate has therefore, contended that looking to the aforesaid evidence, no fault can be attributed to the driver of the bus and thereby the deceased was the only responsible person in accident and thus, not entitled to any compensation.

10. Per contra, Mr. Sandip Shah, learned advocate for the objectors / claimants has submitted that the learned Tribunal has grossly erred in considering the evidence produced on record for holding the claimants as negligent to the extent of 20%. It is submitted by Mr. Sandip Shah, learned advocate for the claimants that it is in fact the bus driver has suddenly took a turn over the road, which itself is prohibited for the heavy vehicles and thereby because of his rash and negligent driving, the accident took place and the scooter driver viz. Ashishbhai died. Mr. Shah, learned advocate has therefore, submitted that no fault could have been attributed to the driver of the scooter i.e. the deceased and thereby

C/FA/2197/2006 ORDER DATED: 22/11/2021

it is required to be held that the driver of the bus is negligent solely.

11. Mr. Shah, learned advocate for the objector / original claimants, so far as quantum is concerned, has submitted that the ratio laid down by Hon'ble Supreme Court in cases of Sarla Verma & Ors. Vs. Delhi Transportation & Anr., reported in (2009) 6 Supreme Court Cases 121, and National Insurance Company Ltd., Vs. Pranay Shethi, reported in (2017) 16 Supreme Court Cases deserves to be made applicable so as to award 'just' and adequate compensation to the heirs of the deceased.

12. No further submissions have been made by the learned advocates for the respective parties except what is stated hereinabove.

13. I have heard both the learned advocates and perused the Record and Proceedings of the Tribunal below. So as to decide this appeal and the cross-objection, the following two questions require to be decided.

(i) Whether the tribunal has properly considered the aspect of contributory negligence to the extent of 80-20% ?

(ii) Whether the compensation awarded by the learned Tribunal is just, adequate and/or in accordance with the ratio laid down by the Hon'ble Supreme Court in case of Sarla Varma & Ors. (supra) and Pranay Shethi (supra) ?

14. So far as the contributory negligency part is concerned, after having gone through the evidence on record, more particularly panchnama, the evidence of the bus driver, the evidence of the

C/FA/2197/2006 ORDER DATED: 22/11/2021

pillion rider i.e. Ashokbhai, two theories are coming forth. First theory is, the scooter had dashed the bus from the back side as per the say of the driver of the bus, whereas as per the second theory, the bus while taking sudden turn towards the prohibited road for heavy vehicles, dashed with the scooter as per the evidence of the pillion rider of the scooter. I have, therefore, considered the panchnama of the place of the accident. However, the said panchnama does not depict clear picture as to how the accident could have been occurred. Thus, in my view, the Tribunal has rightly held the scooter driver as negligent to the extent of 20% and the bus driver to the extent of 80% by adopting the principle of care and caution of a light and heavy motor vehicle drivers.

15. In view of the aforesaid, the appeal filed by the AMTS is hereby rejected. The first contention of the cross-objection is also deserves to be rejected accordingly.

16. Now, so far as the quantum part of compensation is concerned, in my considered opinion, the latest decisions of the Hon'ble Apex Court in the case of Sarla Varma & Ors. (supra) and Pranay Shethi (supra) will have to be made applicable so as to award 'just' compensation to the heirs for untimely death of Ashishbhai.

17. So far as the yearly income of the deceased is concerned, the same is remained undisputed i.e. Rs.73,000/-. Considering the future rise in income, vis-a-vis the age of the deceased at 26 years, 40% shall have to be added, which would come to Rs.73,000/- + Rs.29,200/- (40% of Rs.73,000/-) = Rs.1,02,200/-. Looking to the size of the family and the number of claimants, it would be just, proper and legal to deduct 1/4 th amount towards personal expenditure, which would come to Rs.25,550/- (1/4th of

C/FA/2197/2006 ORDER DATED: 22/11/2021

Rs.1,02,200/-). Thus, yearly income of the deceased would come to Rs.1,02,200/- --- Rs.25,500/- that would come to Rs.76,650/-. Looking to the age of the deceased, multiplier of '18' would be just and proper. Thus, under the head of future economy loss/loss of dependency would come to Rs.13,79,700/- (Rs.76,650/- x 18). In my view, each claimants would be entitled to Rs.40,000/- towards the loss of consortium, which would come to Rs.1,60,000/- (Rs.40,000/- x 4). Rs.15,000/- would also be just and proper under the head of funeral expenses. Therefore, the total would be Rs.15,54,700/- (Rs.13,79,700/- + Rs.1,60,000/- + Rs.15,000/-). As I have held the scooterist - deceased himself negligent to the extent of 20%, Rs.3,10,940/- (20% of Rs.15,54,700/-) shall have to be deducted from the total compensation, which would come to Rs.12,43,760/- (Rs.15,54,700 - Rs.3,10,940). As the Tribunal has awarded a sum of Rs.10,68,800/-, the same is required to be deducted from Rs.12,43,760/-, which comes to Rs.1,74,960/- (Rs.12,43,760 - Rs.10,68,800). Hence, in my view, the objectors / original claimants are entitled for enhanced compensation to the tune of Rs.1,75,000/- with 7% interest from the date of filing of the claim petition till its realization.

18. In the result, first appeal is hereby rejected and the cross- objection is partly allowed. The AMTS is hereby directed to deposit a sum of Rs.1,75,000/- (Rupees One Lac Seventy Five Thousand only) with 7% interest with the tribunal within the period of 8 weeks from today. The Tribunal is further directed to issue Account Payee cheque in favour of the claimants after proper verification. R. & P. be sent back forthwith.

(NIRAL R. MEHTA, J.) AMAR RATHOD...