Gujarat High Court
Gujarat State Road Transport ... vs Manbai Hirji Buchiya Wd/O Late ... on 27 October, 2021
Bench: R.M.Chhaya
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 663 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/FIRST APPEAL NO. 663 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF
AMOUNT) NO. 1 of 2021
In
R/FIRST APPEAL NO. 663 of 2019
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 ?
==============================================================
GUJARAT STATE ROAD TRANSPORT CORPORATION THRU
DIVISONAL CONTROLLER
Versus
MANBAI HIRJI BUCHIYA WD/O LATE SHRI HIRJI PANCHA BUCHIYA
==============================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Defendant(s) No. 4,7
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,3,5,6
MR. HEMAL SHAH(6960)-G/504/2011 for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 27/10/2021
ORAL JUDGMENT
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 09.07.2018 passed in MACP No.
95 of 2000, the appellant- Gujarat State Road Transport
Corporation has preferred present appeal under Section 173
of the Motor Vehicles Act, 1988.
2.0. The following facts emerge from the record of this
appeal:
2.1. That the accident occurred on 13.11.1999 when
deceased was going from Bharasar to Vadvakanya on
Scooter No. GCP 4932 and at that time, the opponent no.1
came with his Bus bearing registration No. GJ-01-Z-4662 in
rash and negligent manner and with excessive speed and
dashed with deceased, because of which, the scooter and
deceased were dragged with the ST Bus for some distance
and deceased sustained serious injuries and died on the
spot. An FIR was lodged with the jurisdictional Police
Station. The appellants preferred claim petition under
Section 166 of the Act and claimed compensation at Rs. 40
lakh. One of the claimant Shri Ladharam Buchiya was
examined at Exh.39. The appellants also adduced following
documentary evidence before the Tribunal.
Exh. Particulars
42 Charge sheet
43 FIR
44 Panchnama of place of occurrence
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
45 PM Report
46 Death certificate of deceased
47 School leaving certificate of deceased
48 Job offer letter.
49 Letter forwarded to the Manager, Al-Diyar
Gen.Cont. Co. LLC, Abu Dhabi by advocate
Mr. Suchday
50 Receipts of RPAD
51 Acknowledgment receipts
52 Attendance sheet cum salary
53 Certificate issued by Al-Diyar Gen. Cont. Co.
UAE
54 Labour Card
55 Health Card
56 Original Passport
57 Copy of Transfer of Rupees by DD
60 A statement of Bank Account of deceased
61 Copy of FDR
62 Copy of election card of deceased
63 Death certificate of Pancha Radha Buchiya
It was the case of the original claimants that the
deceased was working as a mason in Abu Dhabi - UAE and
was earning Rs.1600 (Dirhams) per month and has relied
upon the salary slip at Exh.52. The Tribunal after
considering the manner in which the accident has taken
place, more particularly, FIR at Exh.43 and panchnama of
place of occurrence at Exh.44 has come to the conclusion
that the driver of the bus i.e. respondent no.1 was solely
negligent for his negligent. The respondents claimants have
able to prove the age of the deceased at 32 years. The
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
Tribunal after considering the income of the deceased has
determined income at Rs.18,896/- per month and applying
ratio in the case of Sarla Verma and ors. vs. Delhi Transport
Corporation and Anr reported in 2009 ACJ 1298, deducted
1/4th from the income of the deceased and applied the
multiplier 10 and awarded total compensation of
Rs.26,21,500/-with 9% interest from the date of application
till its realization with proportionate costs.
Being aggrieved and dissatisfied with the same, the
present appellant preferred this appeal.
3.0. Heard the Mr. H.S. Munshaw, learned advocate for the
appellant and Mr. Hemal Shah, learned advocate for the
respondents- claimants. 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.
4.0. Learned counsel for the Appellant S.T. Corporation has
contended that the Tribunal has wrongly come to the
conclusion that the driver of the ST Bus was solely
negligent. Learned counsel for the ST Corporation has taken
to this Court to the FIR at Exh.43 and panchnama at
Exh.44 exclusively and has contended that the ST bus was
coming out from the ST Bus Station and there is some
negligence on the part of the deceased also who was driving
Scooter. According to learned counsel for the S.T.
Corporation deceased as a scooterist ought to have been
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
more careful when he was driving the same on the main
road and that too near ST Bus Station. According to learned
counsel for the S.T. Corporation the Tribunal has committed
gross error in coming to the conclusion that the driver of the
ST bus was solely negligent. According to learned counsel
for the appellant, the driver of the ST Bus and the scooterist
were equally negligent and therefore, contributory
negligence should be taken into consideration. Learned
counsel for the appellant made feeble attempt to contend
that the income is wrongly considered. On the aforesaid
grounds, it was contended that the impugned judgment and
award is not just and adequate compensation but excessive
compensation and appeal be allowed as prayed for by
modifying the award.
5.0. Per contra, Mr. Shah, learned counsel for the
respondents- original claimants has opposed the present
appeal. Mr. Shah contended that even though the Tribunal
has referred to 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 and even
though the Tribunal has believed that the age of the
deceased was 32 years has only given multiplier 10. Mr.
Shah further contended that the the claimants would be
entitled to parental as well as filial consortium in addition to
the consortium granted to the opponent no.1 herein- wife of
the deceased. According to Mr. Shah, the appeal being
meritless and deserve no merits and same deserves to be
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
dismissed.
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
7.0. We have perused the original record and proceedings
of the case. As far as aspect of negligent is concerned, the
Tribunal has come to the conclusion that the driver of the
bus is solely negligent. Upon re-appreciation of the evidence
in form of FIR at Exh.43, we find that the FIR was lodged by
the Driver of the bus himself - opponent no.1 and it is
clearly mentioned in the FIR at Exh.43 that he was driving
bus at full and excessive speed. Moreover, even considering
the contents of the panchnama which is prepared only after
accident, shows that the deceased who was driving the
scooter dashed with the ST Bus from the driver side and
therefore, it cannot be said that the deceased scooterist was
driving on a wrong side. Moreover, upon re-appreciation of
evidence on record, it is revealed that impact of accident
was so severe that the deceased was dragged along with bus
for 22 mtrs. Considering the manner in which the accident
has occurred, we find that the Tribunal has committed no
error in coming to the conclusion that the driver of the bus
was solely negligent and therefore, the said contention
deserves to be negatived. Even upon re-appreciation of the
evidence, more particularly, pay slip at Exh.52 clearly
indicates that the deceased was working at Abu- Dhabi on a
salary of Rs.1600 (Dirhams) per month. The exchange rate
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
as applicable on the date of accident has been applied by
the Tribunal and therefore, same does not require any
modification.
Even examining the contention raised by Mr. Shah,
learned advocate for the original claimants, it deserves to be
noted that the Tribunal has rightly applied 10 multiplier as
deceased was earning in foreign currency.
8.0. We find that the Tribunal has not granted any parental
and filial consortium to the original claimants. Following
the judgment of the Hon'ble Supreme Court in the case of
United India Insurance Company Limited vs. Satinder Kaur
@ Satwinder Kaur reported in AIR 2020 SC 3076, the
respondent nos.2 and 3 are minor children of the deceased
and respondent no.5 is the mother of the deceased would
be entitled to consortium to the tune of 40,000/- each.
Having come to the aforesaid conclusion, therefore, the
respondents- original claimants would be entitled to
additional compensation of Rs.1,20,000/- as parental and
filial consortium. The rest of the impugned judgment and
award remains unaltered. Though the respondents -
original claimants have not preferred any appeal on
principle of just compensation, the respondents- claimants
would be entitled to additional compensation of
Rs.1,20,000/- over and above the compensation granted by
the Tribunal. The appellant Gujarat State Road Transport
Corporation shall deposit the additional amount of
Rs.1,20,000/- over and above the compensation granted by
C/FA/663/2019 JUDGMENT DATED: 27/10/2021
the Tribunal with 9% interest and proportionate costs from
the date of application till its realization with the Tribunal
within a period of 8 weeks from the receipt of the order.
Present appeal is disposed of accordingly.
As the appeal is disposed of, application for stay and
application for disbursement / withdrawal of amount would
not survive and same stands disposed of.
sd/-
(R.M.CHHAYA,J)
sd/-
(SAMIR J. DAVE,J)
KAUSHIK J. RATHOD
