Linagauriben Bhadreshbhai Alias ... vs Gujarat State Road Transport ...
2021 Latest Caselaw 16689 Guj

     C/FA/2491/2018                             JUDGMENT DATED: 25/10/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/FIRST APPEAL NO. 2491 of 2018

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                             sd/-
 and
HONOURABLE MR. JUSTICE SAMIR J. DAVE                          sd/-
==============================================================
1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

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

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

==============================================================
LINAGAURIBEN BHADRESHBHAI ALIAS BHADRAKANTBHAI JIVANI
                      & 3 other(s)
                        Versus
      GUJARAT STATE ROAD TRANSPORT CORPORATION
==============================================================
Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 1
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SAMIR J. DAVE
                       Date : 25/10/2021
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 29.04.2017 passed by the learned Motor Accident Claims Tribunal (Auxi), Dhoraji in MACP No.17 of 2016, the appellants have preferred this appeal.

2. Notice for final disposal came to be issued by the

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

Coordinate Bench of this Court vide order dated 18.07.2018. The respondent has also filed Cross Objection.

3. The following facts emerge from the record of this appeal;

3.1. That the accident took place on 15.02.2016 at around 9.30 when deceased - Bharatbhai Jivani was going from Patidad to Gondal by driving his motorcycle No. GJ-03-FC- 4203, the opponent no.1 came with his Bus bearing Registration No. GJ-18-Y-4172 in full speed, rash and negligent manner and dashed with the deceased and thereby caused injuries to the deceased and died on the spot. An FIR was lodged with the jurisdictional Police Station. It is the case of the appellants that deceased was earning Rs.20,000/- per month by serving as an operator in Khodiyar Agro Flour Mill, Shapar. The appellants preferred claim petition under Section 166 of the Act and claimed compensation at Rs. 75 lakh. The appellants also adduced following oral as well as documentary evidence before the Tribunal.

Exh.No.               Particulars
28                    Copy of complaint.
29                    Copy of panchnama of place of occurrence
30                    Inquest Panchnama
31                    Paper of treatment given to the deceased.
32                    Death certificate of deceased
33                    PM Report
34                    Certificate of birth date of deceased





      C/FA/2491/2018                                 JUDGMENT DATED: 25/10/2021



34                    Pan Card of deceased
35                    Driving license of the deceased
36                    RC Book of Motorcycle
37                    Photographs of damage to motorcycle
38                    Revenue Record of 7/12 of land of survey no.11
39                    Revenue Record of 7/12 of land of survey no.
                      47/1 paiki 3
40                    Revenue Record of 8-A of land of survey no. 11
                      and 47/1 paiki 3
24                    Purchase voucher and receipt of sold cotton to
                      UV Cotton
27                    Salary certificate of deceased serving as an
                      operator
21                    Bills of selling cotton of land of deceased

The Tribunal after appreciating the evidence on record and considering the submissions made by the respective parties, partly allowed the claim petition and awarded the compensation of Rs10,90,125/- with 9% interest from the date of application till its realization with proportionate costs.

4. Heard the Mr. Hemal Shal, learned advocate for the appellants and Ms. Neha Kayasth, learned advocate for Ms. Sejal Mandavia, learned advocate for the respondent. Gujarat State Road Transport Corporation. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

5. Mr. Shah, learned advocate for the appellants relying upon the evidence on record, more particularly, the income contended that the Tribunal has committed an error in assessing income of the deceased at Rs.4500/- per month. Mr. Shah, learned advocate for the appellants contended that there is evidence on record to show that the deceased was working as operator in Khodiyar Agro Flour Mill, Shapar and that the said fact is duly proved by leading oral as well as documentary evidence before the Tribunal still however the Tribunal has considered only Rs.4500/- per month as income of the deceased, which deserves to be enhanced. Ms. Shah further contended that the Tribunal has not granted by filial consortium to minor son and minor daughter as well as mother of the deceased. It was therefore, contended that the appeal be allowed as prayed for. Mr. Shah further contended that the grounds raised in the cross objection are meritless. Mr. Shah contended that the manner in which the accident has occurred and damage caused even to the bus involved in the accident clearly shows that such big vehicle was being driven in rash and negligent manner and therefore, the Tribunal has rightly assessed the contributory negligent of driver of the bus to the extent of 90% which does not require any modification. Mr. Shah further contended that the contention raised in the cross examination that the income is also considered in excess as there is only supervisory loss as far as income from agricultural activity is concerned, deserves to be

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

negatived. Mr. Shah, therefore, contended that the appeal be allowed and cross objection deserves to be dismissed.

6. Per contra, Ms. Neha Kayasth, learned advocate for the respondent has opposed the appeal and has pressed the ground as raised in the cross objection. Ms. Kayasth contended that negligence is not properly considered by the Tribunal. Relying upon the panchnama at Exh. 29, Ms. Kayasth contended that the motorcycle was being driven by the deceased as such a speed that front part of the motorcycle completely got damaged which indicates that the motorcycle was being driven in excessive speed and in rash and negligent manner. According to Ms. Kayasth, the Tribunal ought to have considered driver of the bus as well as deceased as equally negligent for the accident. Ms. Kayasth also further contended that appellants have not been able to prove the income and no income tax returns were brought on record. It was further contended that there is no evidence whatsoever as far as income is concerned. Ms. Kayasth has also relied upon the judgment of Bombay High Court in the case of Smt. Sumitra Dwarkanath Sirsat and ors vs. Shivanand Hanumantappa Bisirotti and ors reported in (2015) ACCR 494 (Bombay) to buttress her argument as far as income is concerned. According to Ms. Kayasth, the appeal being meritless and deserve no merits and same deserves to be dismissed.

7. No other and further submissions/ contentions have

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

been made by the learned advocates for the respective parties.

8. We have perused the original record and proceedings of the case. Upon reappreciating the evidence on record and considering the submissions made, the panchnama at Exh.29 clearly shows that bus was also damaged from the front side and the glass of the bus was fully damaged. Upon reappreciating the evidence, the manner in which the accident has taken place, it can clearly be seen that the bus was being driven at a higher speed. Even considering the deposition of driver of bus at Exh.47- Sidhrajsinh Jadeja and in his cross examination he has clearly stated that as a drive of the ST he drives bus at the speed of 50 KM per hour. He has also admitted the fact that if the traffic is less and the movement on the road is less, his speed would be more. Though much reliance has been placed by the learned advocate for the respondent on the deposition at Exh.47, the same does not take case of the respondent any further. Considering the panchnama as a whole and the photographs of the damage motorcycle at Exh.37 is seen, upon reappreciation of such evidence on record, this Court is of the opinion that the Tribunal has correctly assessed the contributory negligent in the ratio of 90:10. The bus being bigger vehicle has to be driven in very conscious manner. The panchnama at Exh.29 as well as FIR at Exh.28, clearly speaks of the fact that bus from the other side was being driven at an excessive speed. Even

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

considering the damage to the front side of the bus, the Tribunal has correctly assessed the contributory negligent and has correctly come to the conclusion that the driver of the bus is negligent to the tune of 90%. Thus, on the aspect on negligence, no interference is called for. Upon reappreciation of evidence on record, it clearly transpires that the deceased was working as an operator in a private firm and at the monthly salary of Rs.20,000/-. The claimants have examined the accountant of the said firm- Ranchodbhai Davada at Exh.18. We also find that the said piece of evidence itself indicate that the deceased was engaged in the business of Cotton as a whole. Similar evidence is on record by way of oral deposition of Yatinbhai Kalariya at Exh.22. The claimants have also examined Divyeshkumar Ujiya, Accountant of the Khodiyar Agro Flour Mills Private Limited wherein the said witness has also produced the photocopy of the payment made to operator wherein name of the deceased appears. Considering such piece of evidence, we are of the opinion that the Tribunal has erred in considering the income of the deceased at Rs.4500/- per month only. Even as far as the income from the agricultural activities is concerned, though there might any supervisory loss as the land has remained with the original claimants. The evidence shows that land is given on lease at the rate of 1500/- per hectare. Upon reappreciation of such evidence of income on record, the income of the deceased can safely be assessed at Rs.10,000/-. In view of such evidence on record, it cannot be said that the

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

appellants having been able to prove the income of the deceased. On the contrary, we find that the Tribunal has not considered the evidence on record properly. The age of the deceased was 36 years on the date of accident has duly proved by the claimants and hence the claimants would be entitled to increase in income by way of future prospective income to the extent of 50% as number of claimants are four, the deduction towards personal expenses of the deceased would to the tune of 1/4th of the total income and appropriate multiplier would be that of 15. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to compensation under the head of loss of dependency as under:

Rs. 10,000/- per month (income) + Rs.5000/- (50% prospective income) = 15,000/- - 3750/- (1/4 towards personal income = Rs.11,250/- x 12 (pa)= 1,35,000/- X 15 (Multiplier as the age of the deceased was 36 years) = 20,25,000/-.

9. It deserves to be noted that the Tribunal has awarded three lakhs as compensation under the different conventional heads. Following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 as well as in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

reported in AIR 2020 SC 3076, the appellant no.1 would be entitled to consortium to the tune of 40,000/-and appellant nos. 2 and 3 minor children would be entitled to parental consortium to the extent of 40,000/- each and appellant no.4- Kantaben Jivan mother of the deceased would be entitled to parental consortium to the tune of Rs.40,000/-. Over and above the same, the appellants would be entitled to Rs.50,000/- loss of estate and Rs.50,000/- towards funeral expenses.

10. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to total compensation as under:

Particulars                         Amount (Rs.)
Future loss of income               20,25,000/-
Parental consortium                 1,60,000/--
Loss of estate                      50,000/-
Conventional and Funeral            50,000/-
Expenses
Total Compensation                  22,85,000/-

11. Thus, the appellants- claimants would be entitled to total compensation of Rs.22,85,000/-. As the Tribunal has awarded an amount of Rs. 10,90,125//-, the respondent Gujarat State Road Transport Corporation shall deposit the additional amount of Rs.11,94,875/- with 9% interest and proportionate costs with the Tribunal within a period of 8 weeks from the receipt of the order.

12. In view of the aforesaid, therefore, the appeal is partly

C/FA/2491/2018 JUDGMENT DATED: 25/10/2021

allowed to the aforesaid extend and impugned judgment and award is modified to the aforesaid extend. Cross objection being merit less is hereby dismissed. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith.

sd/-

(R.M.CHHAYA,J)

sd/-

(SAMIR J. DAVE,J) KAUSHIK J. RATHOD