Samu Tibhu Yadav vs Chaudhary Enterprise
2022 Latest Caselaw 4419 Guj

     C/FA/3215/2017                                JUDGMENT DATED: 27/04/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3215 of 2017
                                    With
                        R/FIRST APPEAL NO. 542 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                        SAMU TIBHU YADAV & 5 other(s)
                                  Versus
                      CHAUDHARY ENTERPRISE & 3 other(s)
================================================================
Appearance:
MR VILAV K BHATIA(5338) for the Appellant(s) No. 1,2,3,4,5,6
for the Defendant(s) No. 3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                               Date : 27/04/2022

                          COMMON ORAL JUDGMENT

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

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

1. Feeling aggrieved and dissatisfied by the impugned

judgment and award dated 30.09.2016 passed by the Motor

Accident Claims Tribunal (Main), Ahmedabad (Rural) at Mirzapur

in M.A.C.P. No.1486 of 2013, the original claimants have

preferred First Appeal No.3215 of 2017, whereas, the appellant -

New India Assurance Co. Ltd. has preferred First Appeal No.542

of 2017 under Section 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as "the Act").

2. Both the appeals are tagged together and are heard

together and the same are disposed of by this common

judgment and order.

3. Following facts emerge from the record of these appeals.

3.1 That the accident took place on 11.07.2013 near Ravlipur

Patia on National Highway No.8 i.e. between Ahmedabad to

Vadodara. It is the case of the claimants that the deceased

Ramavadh Samu was driving Oil Tanker bearing registration

no.GJ-1-AT-7711 from Ahmedabad to Vadodara. The record

indicates that when the Tanker reached at the scene of

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

occurrence on highway, a Crane bearing registration no.MH-43-

0952 was lying on the road without any light or reflector or

indicator and because of which the Oil Tanker dashed behind the

Crane. The record indicates that the impact of the same, the fire

broke out in the Oil Tanker and due to which the deceased

sustained burn injuries and died on account of the same. An FIR

was lodged by the representative of the Crane at Exhibit 23 and

the present claim petition was filed by the claimants under

Section 166 of the Act before the Tribunal and claimed

compensation of Rs.25,00,000/-. It is the case of the claimants

that the deceased was working as driver and was earning

Rs.5,000/- as salary. The claimants relied upon the oral

depositions of the wife of the deceased Sitadevi at Exhibit 27 and

one Upendranath Yadav at Exhibit 31. The claimants also relied

upon the documentary evidence such as FIR at Exhibit 23,

panchnama of the place of occurrence at Exhibit 24, inquest

panchnama at Exhibit 25, P.M. report at Exhibit 26 and the

insurance policy of both the vehicles at Exhibit 35 and Exhibit 43.

The Tribunal, after appreciating the evidence on record, came to

the conclusion that the driver of the Crane was solely negligent

for the accident as the Crane was parked without any light,

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

indicator or sign. As far as the quantum is concerned, the

Tribunal assessed the income of the deceased at Rs.4,000/- per

month and also considered increase in income by way of

prospective income to the tune of 30% and after deducting 1/4th

personal expenses and applying multiplier of 14, awarded a sum

of Rs.6,55,200/- as compensation under the head of future loss

of income. The Tribunal further awarded a sum of Rs.50,000/- as

loss of estate and loss of consortium and Rs.10,000/- as funeral

expenses and while partly allowing the claim petition, the

Tribunal awarded total compensation of Rs.7,15,200/- with 9%

interest from the date of claim petition till its realization. As

observed hereinabove, the claimants have preferred appeal for

enhancement of compensation, whereas, the appellant -

Insurance Company of the Crane has filed the appeal on the

ground of negligent.

4. Heard Mr.Vilav Bhatia, learned counsel for the claimants,

Mr.Sunil Parikh, learned counsel for the insurer of Tanker i.e.

National Insurance Co. Ltd and Mr.Maulik Shelat, learned

counsel for the appellant - New India Assurance Co. Ltd and

perused the photo copy of the FIR at Exhibit 23 and panchnama

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

at Exhibit 24. Such copies are taken on record.

5. Mr.Vilav Bhatia, learned counsel for the claimants has

submitted that the Tribunal has committed an error in

considering the income of the deceased at Rs.4,000/- per month.

He has contended that even if in absence of any evidence,

considering the minimum wages standard prevailing on the date

of the accident, the deceased has skilled worker and considering

the deceased as skilled worker, the income would be at least

Rs.5,000/- per month. Mr.Bhatia, learned counsel further

contended that the claimants would also be entitled to

consortium filial to the parental as well as spousal consortium.

He contended that as far as the negligence is concerned, the

Tribunal has rightly considered the evidence on record and the

same does not require any modification. On the aforesaid

grounds, Mr.Bhatia, learned counsel contended that the appeal

filed by the claimants deserves to be allowed and the appeal

filed by the Insurance Company deserves to be dismissed.

6. Mr.Maulik Shelat, learned counsel for the appellant - New

India Assurance Co. Ltd has taken this Court through the FIR at

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

Exhibit 23 and the panchnama at Exhibit 24. He contended that

though the Crane was parked on the road without any light or

reflector or indicator, it has come on record that the ample care

was to take by the driver of the Crane to avoid any such

accident. While referring to the charge-sheet, Mr.Shelat, learned

counsel contended that such charge-sheet was filed against the

driver of the Tanker. He has referred to the panchnama at

Exhibit 24 and contended that no break mark was found at the

place of occurrence which indicates that the Tanker was driven

in such an excessive speed before it dashed with the Crane. On

the aforesaid ground, Mr.Shelat, learned counsel contended that

the Tribunal has committed an error in coming to the conclusion

that the driver of the Crane was solely negligent for the accident

in question. So far as the quantum is concerned, Mr.Shelat,

learned counsel contended that in absence of any evidence on

record, the Tribunal has not committed any error in determining

the income of the deceased at Rs.4,000/- per month. He

contended that as far as the consortium is concerned, this Court

may pass appropriate order keeping in mind the ratio laid down

by the Hon'ble Apex Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram alias Chuhru

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

Ram and others reported in (2018) 18 SCC 130, United

India Insurance Company Limited Vs. Satinder Kaur alias

Satwinder Kaur and others reported in AIR 2020 SC 3076

and New India Assurance Co. Ltd. Vs. Smt. Somwati and

others, reported in (2020) 9 SCC 644. He contended that the

appeal filed by the claimants does not require any consideration

and the appeal filed by the appellant - Insurance Company

deserves to be allowed.

7. Mr.Sunil Parikh, learned counsel appearing for respondent -

National Insurance Co. Ltd contended that the Tribunal has

rightly appreciated the evidence on record and has factually

considered the aspects that the Crane was being parked may be

on the left side of the road without any light, reflector or

indicator, that too, at the midnight. According to him, the

accident occurred on the part of the Crane parked on the road.

He contended that the Tribunal has not committed any error in

coming to the conclusion that the driver of the Crane was solely

negligent for the accident in question. Mr.Parikh, learned counsel

contended that as far as the quantum is concerned, the Tribunal

has correctly appreciated the evidence on record and no

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

modification is required. According to Mr.Parikh, learned counsel,

both the appeals being meritless deserve to be dismissed.

8. No other or further submissions, grounds or contentions

have been raised by the learned counsel appearing for the

parties.

9. Upon hearing learned counsel appearing for the parties,

the following questions arise in these appeals for determination

by this Court.

(a) Whether the Tribunal has committed any error in coming

to the conclusion that the driver of the Crane was solely

negligent?

(b) Whether the Tribunal has committed any error in

determining the income of the deceased at Rs.4,000/- per

month in absence of any evidence or not?

(c) Whether the original claimants are entitled for consortium

or not?

10. At this juncture, it would be appropriate to note that as far

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

as the policy at Exhibit 43 issued by the National Insurance

Company Limited i.e. insurer of the Tanker is concerned, the risk

of the driver is covered as additional premium taken by the said

Insurance Company and in light of the decision of the Full Bench

in the case of Valiben Laxmanbhai Thakore (Koli) Wd/o.

Late Laxmanbhai Ramsingbhai Thakore (Koli) and others

Vs. Kandla Dock Labour Board and Another reported in

2021 (4) GLH 77, the insurance company would be liable for

the same.

11. As far as the negligence is concerned, it would be

appropriate to refer to the FIR at Exhibit 23 and panchnama at

Exhibit 24. On bare reading of these piece of evidence on record,

it clearly transpires that the Crane was being parked on the road

by the driver at midnight hours, that too, without any light,

reflector or indicator. However, the panchnama at Exhibit 24 and

the FIR at Exhibit 23, which was lodged by the representative of

the Crane clearly speaks of the fact that the Tanker dashed

behind the back of the Crane in such a manner and because of

the fire broke out, the deceased succumbed to burn injuries. It

also borne out from the panchnama at Exhibit 24 that no break

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

marks are found on the road. Upon re-appreciation of the

evidence, it transpires that the Tanker also was being driven by

the driver in an excessive speed and in such a manner the driver

could not notice stationary Crane in midnight hours. However,

upon re-appreciation of the evidence on record, this Court is of

the opinion that the Tribunal has committed an error in coming

to the conclusion that the driver of the Tanker was solely

negligent. In the facts of the present case, the drivers of both the

vehicles i.e. Tanker and the Crane were held to be contributory

negligent to the extent of 75% and 25% i.e. driver of the Crane

was negligent to the extent of 75%, whereas, the driver of the

Tanker was negligent to the extent of 25%.

12. As far as the quantum is concerned, the Tribunal has

assessed the income of the deceased at Rs.4,000/- per month in

absence of any evidence. Even if the minimum wages standard

prevailing on the date of the accident is considered, the salary

would be at least Rs.5,000/- as claimed by the claimants. We,

therefore, determine the income of the deceased at Rs.5,000/-

per month. Having come to the aforesaid conclusion, the

claimants would be entitled to the future loss of dependency as

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

under:

Rs.5,000/- per month + Rs.1,250 (25% rise) = Rs.6,250/- -

Rs.1,562/- (1/4th personal expenses) = Rs.4,688/- x 12 =

Rs.56,256/- x 14 (multiplier) = Rs.7,87,584/-.

13. The record indicates that the claimants before this Court

are wife, two children along with two major daughters. Following

the ratio laid down by the Hon'ble Apex Court in the case of

Magma General Insurance Company Limited (supra),

Satinder Kaur alias Satwinder Kaur (supra) and Smt.

Somwati (supra), the claimants would be entitled to the

consortium of Rs.40,000/- each. Over-and-above the same, the

claimants would be entitled to Rs.30,000/- under the head of loss

of estate and funeral expenses. Thus, the claimants would be

entitled to total compensation of Rs.9,77,584/-. As the Tribunal

has granted compensation of Rs.7,15,200/-, the claimants would

be entitled to additional compensation of Rs.2,62,384/-

[Rs.9,77,584/- - Rs.7,15,200/-]. However, such additional amount

shall bare interest at the rate of 6% from the date of filing of the

petition till its realization. Thus, the questions raised in these

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

appeals are answered accordingly.

14. In view of the above, First Appeal No.3215 of 2017 is partly

allowed and First Appeal No.542 of 2017 is also partly allowed.

Both the drivers of the vehicle i.e. Tanker and Crane involved in

the accident are held to be contributory negligent to the extent

of 75% and 25%. The claimants would be entitled to the

additional amount of compensation of Rs.2,62,384/- along with

the interest at the rate of 6% per annum from the date of filing of

the claim petition till its realization. The respondent - Insurance

Company i.e. insurer of Tanker bearing registration no.GJ-1-AT-

7711 is directed to deposit 25% of the total amount of award

with the Tribunal within a period of eight weeks from the date of

certified copy of this judgment and order. The appellant - New

India Assurance Co. Ltd shall deposit additional amount of award

with interest at the rate of 6% per annum and proportionate

costs with the Tribunal within a period of eight weeks from the

date of certified copy of this judgment and order. After

depositing the share of the additional amount of award by the

appellant - New India Assurance Co. Ltd, the Tribunal shall

refund additional amount, if any, to the National Insurance Co.

C/FA/3215/2017 JUDGMENT DATED: 27/04/2022

Ltd of the Crane. There shall be no order as to costs.

15. The connected civil application/s, if any, shall stand

disposed of.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL