Gujarat High Court
Ibrahim Ahmed Patel vs Vinodkumar Bhanabhai Parmar on 1 August, 2022
Bench: A.J.Desai
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2483 of 2021
With
R/FIRST APPEAL NO. 889 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 889 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
===============================================================
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 ?
===============================================================
IBRAHIM AHMED PATEL
Versus
VINODKUMAR BHANABHAI PARMAR
===============================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 5
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1,3,4
===============================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 18
Downloaded on : Fri Aug 05 20:48:50 IST 2022
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
Date : 01/08/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. These appeals under Section 173 of the Motor Vehicles
Act, 1988 ("the Act" for short) are filed challenging the
judgment and award dated 19.7.2021 passed by the Motor
Accident Claims Tribunal at Bharuch in MACP No.79 of 2017,
for the same accident.
2. First Appeal No. 2483 of 2021 is filed by the original
claimants as appellants seeking enhancement of compensation
whereas, First Appeal No. 889 of 2022 is filed by the Gujarat
State Road Transport Corporation (GSRTC) (original opponent
No.2), as appellant challenging negligence held and the
quantum of compensation awarded. In MACP No.79 of 2017,
opponent No.1 is driver of the bus, opponent No.2 is GSRTC,
opponent No.3 is driver of Innova Car No. GJ 16 AU 5550,
opponent No.4 is owner of Innova Car and opponent No.5 is
Insurance Company of Innova Car.
3. Brief facts are:
3.1. That on 25.2.2017, Nabil Ibrahim Patel (hereinafter
referred to as "deceased") was going in Innova Car No. GJ 16
AU 5550 to Godhra for attending the marriage ceremony of his
brother. The said car was driven by original opponent No.3.
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
It was case of the claimants that when the car was going
towards Godhra, S.T.Bus No. GJ 18 Y 9676 driven by original
opponent No.1 came with full speed in rash and negligent
manner, because of which, it lost control over the steering and
by coming on wrong side after crossing the divider, dashed
with the Innova Car. The impact was so heavy that the car
was dragged around 20 feet away and turned turtled. Because
of the said accident, the deceased died on the spot. One
Vaibhav also died during the treatment and Shakhir Hussain
sustained serious injuries. All three were travelling in the
same car. It was case of the original claimants that the
deceased was healthy and fit at the time of accident and was
aged 27 years. He was doing job at Riyadh, Kingdom of
Saudi Arabia in Unified Real Estate Development Company as
Executive Facility Manager and was earning SR (SAR Riyals)
7500 per month which comes to Rs.1,22,000/- p.m. It was
further the case of the original claimants that the accident
occurred on account of sole negligence on the part of the
driver of bus. For the said accident they filed Claim Petition
under Section 166 of the Act before the Claims Tribunal
seeking compensation of Rs.2,50,00,000/-.
4. Upon issuance of the notice, opponent Nos. 1 and 2
(driver and owner of the Bus) appeared and filed their written
statement at Exh.29. Opponent Nos. 3 and 4 (driver and
owner of Innova Car) filed their statement vide Exh.23 and
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
opponent No.5 Insurance Company of Innova Car also filed the
written statement. The Tribunal after hearing the parties and
upon appreciation of evidence on record in relation to
negligence, held the driver of the S.T. Bus as sole negligent.
The Tribunal held opponent Nos. 1 and 2, liable for the
payment of compensation. The Tribunal exonerated opponent
Nos. 3, 4 and 5 (driver, owner and Insurance Company of the
Innova Car) from the claim petition.
In relation to compensation, the Tribunal awarded total
compensation of Rs.19,58,000/- under different heads as under:
Loss of dependency Income Rs.19,28,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total compensation amount Rs.19,58,000/-
5. Opponent Nos. 1 and 2 (driver of bus and GSRTC) are
directed to pay the compensation with interest @ 9% p.a. from
the date of Claim petition till its realization.
6. Aggrieved by the said order as noticed earlier, the
original claimants as appellants filed the First Appeal being
F.A. No. 2483 of 2021 seeking enhancement of compensation,
whereas, First Appeal No.889 of 2022 is filed by the GSRTC
challenging the quantum of compensation awarded as also the
negligence held by the Tribunal.
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
7. We have heard Mr. Nishit Bhalodi, learned advocate for
the appellants (original claimants) and Ms. Sejal Mandavia,
learned advocate for opponent No.2 (GSRTC) and Ms. Kirti
Pathak, learned advocate for the Insurance Company of the
Innova Car. Record and Proceedings of the Tribunal have
been secured.
8. Mr. Nishit Bhalodi, learned advocate for the appellants
(original claimants) contended that the Tribunal committed
serious error in awarding lesser compensation, ignoring the fact
that the deceased was earning SR 7500 per month by applying
multiplier of 17.77 (exchange rate), it would come to
Rs.1,22,000/- p.m. It is not in dispute that he was doing job
at Unified Real Estate Development Company as Executive
Facility Manager. In support of his submission, he relied upon
Exh.60 and contended that the income of the deceased would
be assessed accordingly. He further contended that as he was
27 years old at the time of accident, 40% would be entitled
towards prospective income. As he was having two
dependents and he being bachelor, 50% would be deducted
towards personal expenses and multiplier of 17 would be
applicable.
8.1. In relation to the enhancement of compensation, he relied
upon following decisions:
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
(i). Jiju Kuruvila and Ors. v. Kunjujuamma Mohan & Ors.
[2013 ACJ 2141]
(ii). Divisional Manager, Oriental Insurance Co. Ltd. v.
Swapna Nayak & Ors. [2017 ACJ 697]
(iii). Ramla and Ors. vs. National Insurance Co. Ltd. and Ors.
[2019 ACJ 559]
(iv). Triveni Kodkany and Ors. vs. AIR India Limited and Ors.
[2020 ACJ 1582]
(v). Tushar Bhanubhai Patel & 1 vs. Pranavbhai M. Patel in
First Appeal No. 1197 of 2010 decided on 1.2.2022.
9. Referring to the above decisions, he contended that in all
the above referred decisions, the Hon'ble Court has considered
the income earned by the deceased in the country in which he
was working, at the time of accident. He therefore, contended
that the observations of the Tribunal that the Indian economy
and financial situation is required to be considered particularly
in the background of the Country where the dependent
beneficiaries are residing is erroneous. He further contended
that the economic condition and the life style expenses of the
country in which the deceased was working cannot be the
ground for reducing the income of the deceased. The tribunal
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
is in error in assessing the income of the deceased at Rs.
15000/- p.m., by taking in to consideration the income of a
person who performs similar nature of work in India. He thus,
contended to enhance the compensation accordingly.
10. On the other hand, Ms. Sejal Mandavia, learned advocate
for the GSRTC contended that the Tribunal has wrongly held
driver of bus as 100% negligent. She contended that the bus
driver tried to overtake the truck and while overtaking the
truck lost control over the steering because of which, the bus
crossed the divider and on account of impact he became
unconscious. Therefore, it is not correct to state that the
driver of bus was sole negligent. She contended that as there
was some problem as the steering of the bus became free and
that is how the accident occurred. She contended that the
driver of the Innova car was also driving the car with high
speed and for the said reason it turned turtle. Therefore, he
may also be held negligent for occurrence of the said accident.
She contended to hold driver of Innova Car as negligent to the
extent of 30%.
10.1. In relation to compensation, she contended that not a
single document is on record to establish that the deceased
was sending money through bank to the claimants. The
deceased was on probation and not permanent employee of the
Company in Riyadh and therefore, it cannot be said that he
was regularly having the income as referred at Exh.60. She
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
further contended that the claimants were not dependent as
there is no proof that the deceased was sending money to
them. She thus contended that the compensation awarded by
the Tribunal is on much higher side, considering the Indian
standards. If the salary of a person having similar job in India
is equated with the job of deceased , then one would earn less
than Rs.15,000/- p.m. and, therefore, also the orders of the
Tribunal is erroneous. She in support of her submissions relied
upon decision of Hon'ble Supreme Court in the case of United
India Insurance Co. Ltd. & ors. vs. Patricia Jean Mahajan &
Ors. [(2002) 6 SCC 281]. Relying upon the decision she
contended that as held by Hon'ble Supreme Court the
economic standards of foreign country vis a vis Indian
economic condition is also to be seen. Further, the aspect of
deceased if would have been employed in India, then what he
would have earned at the relevant time is required to be seen.
She thus contended that the judgment and award of the
Tribunal being erroneous needs to be modified accordingly.
11. Ms. Kirti Pathak, learned advocate for the Insurance
Company of Innova Car supported the findings of the Tribunal
and submitted that the Tribunal has correctly appreciated the
evidence on record and exonerated the Insurance Company of
Innova Car by holding that the driver of the bus was sole
negligent for the occurrence of the said accident. She relied
on panchnama at Exh.36 in support of her submission.
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
11.1. In relation to compensation, she contended that even
though no liability has been fastened on the Insurance
Company of the Innova Car, she relied on the decision in the
case of Chanderi and Anr. vs. Jaspal singh & Ors. [(2015) 11
SCC 703] and contended that the Tribunal has rightly observed
that the economic condition and the standard of living of the
country in which the claimants are residing as also the fact
that if the deceased would have employed in India what he
would have earned at the relevant time is to be seen. She
supported the order of the Tribunal and submitted that there
being no error in the judgment and award of the Tribunal, the
appeal of the appellants and GSRTC may be rejected. She
relied on the decision of Hon'ble Supreme Court in the case of
Chandra & Ors. v. The Branch Manager, the Oriental Insurance
Company Ltd. & Anr. in Civil Appeal No.5635 of 2021.
12. The fact relating to the road traffic accident occurred on
25.2.2017 as well as the involvement of offending vehicle is
not in dispute. These facts have been extensively considered
by the Tribunal and, therefore, they are not discussed to avoid
repetition of facts.
13. Having heard learned advocates appearing for the
respective parties and upon perusal of the judgment and award
of the Tribunal with the Record and Proceedings of the
Tribunal, we are of the view that the following points would
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
arise for our consideration.
(1) Whether the Tribunal was correct and justified in arriving
at the conclusion that the driver of the S.T. Bus No. GJ 18 Y
9676 was negligent to the extent of 100% for causing the
accident? and therefore, opponent Nos. 1 and 2 are jointly and
severely ordered to pay the compensation awarded.
(2) Whether the compensation awarded by the Tribunal in
sum of Rs. 19.58,000/- is just and proper compensation? If
not to what extend it is required to be enhanced and under
what heads claimants would be entitled for enhancement.?
(3) What order?
Point No.1
Tribunal has noticed that opponent No.1 (driver of bus)
was examined at Exh.75, who admitted that after jumping the
divider, the bus went on the wrong side and dashed with
Innova Car. It is not disputed that for the said accident, the
departmental inquiry was conducted against him. One Imtiyaz
Aiyubbhai Patel was examined at Exh.64 who also reiterated
that the accident occurred as the bus jumped the divider and
dashed with the Innova Car. In cross-examination, also
nothing contrary came on record. In the panchnama, it is
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
stated that Innova Car was badly damaged on account of the
accident. The contents of the panchnama has not been
disputed by the appellants. The Tribunal further observed that
the driver of the heavy vehicle is expected to take more care
while driving the vehicle. In view of the above findings, in
our considered opinion the Tribunal is correct in holding that
the driver of the bus was sole negligent for the occurrence of
the said accident. We find no error, in judgment and award
of the Tribunal dated 19.7.2021 and accordingly, we uphold
the findings of the Tribunal in relation to negligence, that the
driver of the bus was sole negligent for the occurrence of the
accident Therefore, we answer Point No.1 in favour of the
appellants (original claimants) and against opponent No.2
(GSRTC).
Point NO.2
For compensation, upon reappreciation of evidence we
have noticed that the deceased was holding degree of
Bachelor's of Technology in Mechanical Engineering (Exh.47)
and did his Diploma in Piping Engineering. The job offer
Form at Exh.54 from Unified Real Estate Development refers
that his total package was SR 5850 p.m., and the package
shows the following breakup:
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
1. Contract Status Single Status
2. Basic Salary SR 4,000/- per month. This
salary is based on 48 hours/
week.
3. Housing Allowance SR 1,000/- per month
4. Transportation allowance SR 500/- per month
5. Supplementary Transpo Allowance SR 250/- per month
6. Mobile Allowance SR 100/- per month
Total Package SR5,850 per month
This contract was for a period of one year. In the
affidavit at Exh.60 by the Shehnaz Ibrahim Patel it was stated
that the deceased was earning SR 6430 per month
(Rs.1,22,000/- p.m. Indian currency). The affidavit refers to
settlement report of Unified Real Estate Development Company
at Exh.59, which shows the basic salary of the deceased at SR
4000 p.m. Further, in the case of Patricia Jean Mahajan and
Ors. (supra), the Hon'ble Supreme Court has observed that,
"19. ...............Looking to the Indian
economy, fiscal and financial situation, the
amount is certainly a fabulous amount though
in the background of American conditions it
may not be so. Therefore, where there is so
much of disparity in the economic conditions
and affluence of the two places viz. The place
to which the victim belongs and the place
where the compensation is to be paid, a golden
balance must be struck somewhere, to arrive at
a reasonable and fair mesne. Looking by the
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
Indian standards they may not be much too
overcompensated and similarly not very much
undercompensated as well, in the background
of the country where most of the dependent
beneficiaries reside............."
14. In the case of Chanderi Devi and Anr. (supra), the
Hon'ble Court held as under:
"9. On the other hand, it has been
contended by the learned counsel for the
respondent Insurance Company that the amount
awarded by the High Court to the appellants as
compensation is just and reasonable and does
not call for any upward revision. In support of
the same, reliance has been placed on the
decisions of this Court in State of Haryana v.
Jasbir Kaur and Karnataka SRTC v. Mahadeva
Shetty, wherein it is held that the amount of
compensation should be just and reasonable, it
should neither be a bonanza nor a source of
profit but at the same time it should not be a
pittance."
The Court in paragraph 10 has further held as under:
"10. We have heard the learned counsel for
the parties & perused the record. The courts
below have considered the evidence produced
on record by the appellants, particularly the
passport, salary certificate, income-tax
certificates and whether or not the deceased
was employed in Germany at the time of the
accident to ascertain the annual income of the
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
deceased at the time of his death and the
courts below found that the same cannot be
assessed on the basis of the documents referred
to above. The High Court found it to be just
and reasonable to take the income of the
deceased at the time of his death at Rs.8,333/-
per month, which in our considered view is
definitely on the lower side keeping in view
that the deceased was employed as a cook in
an Indian restaurant in Germany. At the same
time, to consider the income of the deceased at
Rs.62,975/- per month(i.e. 1145 Euros) as
contended by the appellants to calculate the
loss of dependency of the appellants would
definitely be on the higher side. Hence, on
considering the facts, circumstances of the case
and plausibly estimating as to how much a
cook of similar nature as the deceased would
have earned in India in the year 2006, we are
of the view that it would be just and
reasonable for us to ascertain the income of the
deceased at the time of his death at
Rs.15,000/- per month. By adding 50% of the
actual salary as provision for future prospects,
the income of the deceased to be considered
for calculation of loss of dependency is
Rs.22,500/- per month i.e. Rs.2,70,000/- per
annum. Deducting 10% towards income tax the
net income comes to Rs.2,43,000/- per annum.
Further, deducting 1/3rd towards personal
expenses and applying the correct multiplier as
per the legal principles laid down by this Court
in the case of Sarla Verma (supra), the loss of
dependency would come to Rs.25,92,000/-
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
[(Rs.2,43,000/- (-) 1/3rd of Rs.2,43,000/-) x
16]."
15. In the case on hand, we have noticed that the deceased
was having basic salary of SR 4000 p.m. So far as other
allowances are concerned, in our opinion, they would depend
upon the economic condition and life style of the country in
which, the deceased was employed. Therefore, the reliance
placed by learned advocate for the appellants on Exh.60,
showing income of SR 6430 in our view, is not appropriate to
take into consideration. The rate of exchange at the relevant
time as informed by learned advocate for the appellants
(original claimants) was 1 Reyal equal to Rs.17.77. In addition
to the above, we also need to take into account the fact that
the salary which was being earned by the deceased was in a
foreign country. Therefore, it may not be reasonable to apply
the exchange rate to the basic salary without taking into
consideration the parity of employment between India and
Saudi Arabia. As laid down by the Hon'ble Apex Court as
discussed above as the work conditions and other relevant
aspects need to be considered such that the compensation
remains reasonable and does not amount to a windfall profit.
Applying the same principle, in our opinion, a person having
similar qualification with similar work if would have been
employed in India, he would have earned Rs. 50,000/- per
month. This in our opinion being plausible estimation, we
deemed it appropriate to assess income of the deceased at Rs.
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
50,000/- per month. This assessment is also in line keeping in
mind the income purchase power parity between India and
Saudi Arabia.
As the deceased was 27 years of age, 40% would be
applicable towards prospective income. Being bachelor and
having two dependents 50% towards personal expenses would
be deductible. Considering the decision in the case of
National Insurance Co. Ltd. vs. Pranay Sethi and Ors. reported
in (2017) 16 SCC 680 multiplier of 17 would be applicable.
Therefore, in our opinion the deceased would be entitled for
the dependency loss as under:
"50,000/- p.m. + Rs.20,000/- (40% prospective income) =
Rs.70,000/- - Rs.35,000/- (50% personal expenses) =
Rs.35,000/- x 12 p.a. = Rs. 4,20,000/- x 17 (multiplier) = Rs.
71,40,000/-"
16. In relation to the compensation under conventional heads
that loss of estate and funeral expenses Rs.15,000/- each, in
our opinion is properly considered by the Tribunal.
Loss of dependency Income Rs. 71,40,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.71,70,000/-
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
17. For the reasons aforestated, we proceed to pass following
O R D E R
(i) The appeal filed by the original
claimants as appellants in First Appeal NO.
2483 of 2021 is partly allowed and appeal filed
by GSRTC (original respondent No.2) in First
Appeal NO. 889 of 2022 is dismissed.
(ii) Thus, the appellants - original
claimants would be entitled to total
compensation of Rs.71,70,000/-. As the
Tribunal has awarded an amount of
Rs.19,58,000/-, the respondent No.2 -
G.S.R.T.C. shall deposit the balance additional
amount of compensation of Rs.52,12,000/-
(Rs.71,70,000 - Rs.19,58,000) with 6% interest
p.a. and proportionate costs from the date of
filing of the claim petition till its realization
with the Tribunal within a period of 8 weeks
from the receipt of the order. If the
aforesaid amount is not deposited as directed
herein above, appellants would be entitled for
interest at the rate of 9% from the date of
filing of the petition till its realization.
C/FA/2483/2021 JUDGMENT DATED: 01/08/2022
(iii) The rest of the judgment and award
passed by the learned Tribunal has remained
unaltered.
(iv) Registry is directed to transmit back
the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there
shall be no order as to costs.
18. In view of the above, Civil Application (for stay) also
stands disposed of.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
