Gujarat High Court
Munnabhai Lakshmanbhai ... vs Divisional Controller on 11 February, 2022
Bench: Sandeep N. Bhatt
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3583 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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 copyNo
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MUNNABHAI LAKSHMANBHAI KANSKIWALA
Versus
DIVISIONAL CONTROLLER
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/02/2022
ORAL JUDGMENT
1. The present First Appeal No. 3583/2013 under
Section 173 of the Motor Vehicles Act, 1988, is filed by the
claimants, being aggrieved and dissatisfied with the judgment
and award dated 30.11.2011, passed by the Motor Accident
Claims Tribunal (Auxi), Vadodara, by which, the claim petition
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
was dismissed. Therefore, the present appeal is preferred by
the claimants to get the compensation.
2. Brief facts of the case are as under:-
2.1 On 15.02.1995, when Munnabhai Lakshmanbhai-deceased
was crossing the road, at that time, one S.T bus was coming
from Aanklav to Borsad in rash and negligent manner and with
excessive speed and dashed with the deceased and the bus
rammed over both legs of the deceased. After the accident, the
deceased was immediately taken to the Hospital at Karamsad
and thereafter, he was shifted to Government Hospital at
Vadodara. Deceased had taken many treatments but the
injuries sustained from the accident were not cured. On
03.04.1997, the deceased died of the serious injuries sustained
by him in the accident. Munnabhai-deceased was earning
Rs.150/- per day by working in bricks factory, therefore,
claimants, who are the dependents of deceased-Munnabhai
have filed the claim petition to get the compensation to the
tune of Rs.3,00,000/-. The Tribunal has considered the case of
the claimants and granted compensation of Rs.3,40,600/- with
9% p.a. interest from the date of claim petition till December,
2000 and with 8% interest p.a. from January, 2021 till its
realization by judgment and award dated 31.01.2007.
2.2 Being aggrieved and dissatisfied with the impugned
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
judgment and award, the ST Corporation has preferred First
Appeal No. 2947/2008 before this Hon'ble Court and this
Hon'ble High Court has remanded back the matter to the
concerned Tribunal vide order dated 8.09.2009, directing the
Tribunal to decide the claim petition afresh, within six months
after permitting the parties to lead the evidence and also
permitted to produce the documentary evidence in support of
their contention. It was further directed that the Tribunal has
to examine claim petition afresh after considering entire
evidence on record. Accordingly, matter is remanded back to
the Tribunal. Thereafter, though it is permitted to lead the
evidence and to produce the documentary evidence, none of
the parties have produced the documentary evidence before the
Tribunal. After hearing the arguments of the parties, the
Tribunal has found that involvement of ST bus is found to be
suspicious and not proved. Therefore, the claim petition is
dismissed. Being aggrieved and dissatisfied with that judgment
and order, the claimants have preferred the present appeal to
get the compensation.
3. Learned advocate for the appellant Mr. Hiren Modi has
submitted that while deciding claim petition afresh, the Claims
Tribunal has erred in not appreciating the direction given by
this Hon'ble High Court in First Appeal No. 2947/2008 while
remanding the mater back. The Tribunal has recorded
specifically in the present impugned judgment that neither of
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
the parties has led any further evidence, nor produced any
documentary evidence, even though the Tribunal has once
again re-appreciated the evidence afresh and has come to
totally different conclusion. The earlier judgment and order
passed by the very Tribunal on 31.01.2007, by which, the
Tribunal has awarded Rs.3,40,600/- with 8% interest as noted
above. Therefore, he has submitted that there is no reason to
the Tribunal to interfere with the earlier findings and coming
to the different conclusions. He has further submitted that The
Tribunal has erred in arriving at the fiding that the injuries
received by the deceased cannot be occurred due to vehiculer
accident, since the Doctor, who has given treatment, was
examined at Ex. 36, the case papers were also on record, the
certificate was also on record at Ex. 37 and the "vardhi"
issued by the Hospital which is also on record at Ex. 32. He
has submitted that all these materials were produced by the
claimants and were on record of the Tribunal, which show that
deceased got injuries due to vehicular accident. He has further
submitted that the owner of the Bricks Factory was also
examined at Ex. 35 and he was eye-witness of the accident
and he has specifically deposed that the bus driver of the ST
bus dashed with Munnabhai-deceased, who was crossing the
road and thereafter, the driver has stopped the bus for 2
minutes and thereafter he went away with his bus. He has
submitted that at that point of time, one Ravjibhai, who has
deposed at Ex. 35, was about 50 feet away from the place of
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
accident, but the Tribunal has found that though he has taken
the deceased to the Karamsad Hospital as well as to the
hospital at Vadodara and even the said witness has informed
the family members of the deceased about the accident, but he
has not lodged any police complaint such accident and,
therefore, the involvement of the ST bus cannot be established.
That finding of the Tribunal is totally perverse and erroneous.
He has further submitted that the Tribunal has found that
when the deceased was taken to the Government Hospital at
Vadodara, at that point of time, the claimant has informed to
the Doctor that deceased has met with an accident by ST bus
on 15.02.1995. That fact is not acceptable. He has submitted
that this finding is ipse dixit and without any basis. He has
further submitted that the Tribunal has erred in relying upon
the deposition of the witness of ST Corporation at Ex. 39, who
has deposed that he got to know about some accident, that
has occurred between the Aanklav and Borsad Police Station,
but on inquiry with the said Police Station, he could not find
complaint about such accident. Therefore, he said that if the
accident has occurred due to involvement of ST bus, then
logsheet and control charge could have been produced by the
ST Corporation, but that was not produced. Learned advocate
for the claimants has submitted that the High Court has given
chance to adduce evidence or produce any documentary
evidence, but ST Corporation has not issued any witness
summons for that purpose. Therefore, adverse inference should
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
be drawn against the ST Corporation. He has also submitted
that though the 'vardhi' is given by hospital, which is
produced on record at Ex. 33, the Police has investigated, but
that cannot be a ground to disbelieve the involvement of the
ST bus by the Tribunal. He has also submitted that, therefore,
rejection of the claim petition on the flimsy grounds by the
Tribunal is highly improper and unjust. The Tribunal has
totally misinterpreted the direction by this Hon'ble Court in
earlier First Appeal by simply dismissing the claim petition on
totally unsustainable ground, therefore, he prays that proper
amount of compensation after considering the judgments in the
case of National Insurance Co. Limited vs. Pranay Sethi and
Ors. reported in 2017 SCC 1270, Magma General Insurance
Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in 2018 SCC
1546, Sarla Verma v. Delhi Transport Corporation, reported in
(2009) 6 SCC 121 should be awarded by allowing the appeal.
4. per contra, learned advocate Ms. Vasavdatta Bhatt has
submitted that the impugned judgment and order passed by
the Tribunal is just and proper, as the Tribunal has
reconsidered the evidence by finding that there is suspicious
circumstances prevailing and story of the claimant is doubtful
and unbelievable. She has submitted that the witness
Ravjibhai, who deposed at Ex. 35 and 'vardhi' which is given
by the Hospital at Vadodara at Ex. 32 also create suspicion as
they are not saying correct facts or indicating correct situation
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
of the accident. The Tribunal has rightly considered the
deposition of Ratansingh Koyabhai Damor at Ex. 39, witness of
the ST Corporation, in the proper perspective by observing that
when he has inquired about the accident in his office as well
as Aanklav and Borsad Police Station, nothing is found about
such accident. Therefore, learned advocate Ms. Bhatt has
contended that the Tribunal has rightly disbelieved the
deposition of the witness at Ex. 35 and also considering the
deposition of witness at Ex. 36 of Doctor by finding that the
version is not believable as the Doctor, who has examined the
medical papers of SSG Hospital, has issued the medical
certificate at Ex. 37 and Ravjibhai, who has been examined as
Ex. 35 and who has informed about the accident to the family
members, who claimed that he is an eye-witness and he has
seen the accident, has not informed the police or not lodged
any police compliant which itself creates suspicion about the
involvement of the vehicle. Therefore, she has submitted that
the Tribunal has rightly rejected the claim petition. He has
submitted that this Court may not interfere in the findings of
the Tribunal and this appeal is required to be dismissed.
5. I have heard learned advocates for the respective parties.
I have also perused the record and proceedings. I have gone
through the impugned judgment passed by the learned Tribunal
on 30.11.2011 and I have also perused the earlier judgment
passed by the Tribunal on 31.01.2007, whereby the Tribunal
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
has awarded the compensation to the tune of Rs.3,40,600/-
which itself is contradictory. Moreover, if we peruse the earlier
order passed by this Hon'ble Court in First Appeal No.
2947/2008, it clearly indicates that if no further evidence is
led or documentary evidence is not produced, then the
Tribunal need not consider the claim petition afresh. It is
admitted position and more particularly observation of the
Tribunal that, both the parties have filed purshis that they do
not want to lead any evidence, even then the Tribunal has
found that the involvement of vehicle is improbable. The
Tribunal has discarded the version of the eye-witness-
Raujibhai, who has seen the accident and he has specifically
deposed at Ex. 35 that he was 50 feet away from the place of
accident and ST bus has rammed over the legs of the deceased
and thereafter he has informed the family members and shifted
the deceased to the Karamsad Hospital and then Vadodara
Hospital. Not only that, the vardhi to the Police Authority at
Raopura at Ex. 32 was also issued from the Hospital, which is
produced at Ex. 33, which indicates about the occurrence of
accident due to ST bus. Therefore, when the witness of the ST
Corporation-Ratansingh at Ex. 39 merely saying that he could
not find any entry of the accident in logsheet, does not mean
that ST bus was not involved in the accident. The Evidence of
the eye-witness cannot be disregarded nor documentary
evidence in the form of Police 'vardhi' or in the form of
certificate issued by the hospital can be disregarded.
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
5.1 Therefore, I found that Tribunal has committed error,
more particularly in the earlier same set of evidence, the
Tribunal has awarded Rs.3,40,600/- with 9% interest and 8%
interest, respectively, to the claimants which is justifiable
reasons. It seems that merely on assumption and presumption,
the Tribunal has proceeded by discarding the evidence of eye-
witnesses. It could be natural conduct of the eye-witness to
inform the police immediately, but due to some circumstances
they could not have informed the police authority and when
the police 'vardhi' is given from the hospital at Ex. 33, then it
is the duty of the concerned police to investigate about the
incident. However, for the reasons best known to them, the
police has not investigated further, but that does not mean
that accident, which was deposed by the eye-witness was not
occurred due to the involvement of ST bus, nor it can be said
that the deceased has received injuries due to the accident
occurred due to the negligence of the ST bus, and the medical
papers also indicate that deceased has received injuries due to
accident. Therefore, there is no reason to disbelieve the case of
the claimants. I found that the Tribunal has committed grave
error in rejecting the claim petition while considering the claim
petition de novo in absence of any further evidence or material
or pleadings of the parties.
5.2 Therefore, I found that the impugned award and
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
judgment of the Tribunal is required to be interfered with.
Accordingly, I consider the amount of compensation as per the
case of claimants, that the income of the deceased at the
relevant time was Rs.2100/-p.m. wherein Rs.840/- towards
prospective income can be added, therefore, the amount for
the purpose of calculating dependency loss would come to
Rs.2940/-p.m. from that, 1/4th deduction in view of the
judgments rendered in the cases of National Insurance Co.
Limited vs. Pranay Sethi and Ors. reported in 2017 SCC 1270
and Sarla Verma v. Delhi Transport Corporation, repoted in
(2009) 6 SCC 121, is required to be decucted towards personal
expenses. Therefore, Rs.2205/-p.m. would be the annual
dependency. Therefore, 12 months multiplied would come
Rs.26,460/-, looking to the age of deceased at the relevant
point of time. The multiplier should be awarded of 17,
therefore, amount under the head of loss of dependency is
calculated to the tune of Rs.4,49,820/-. Therefore, I award
Rs.4,49,820/- under the head of loss of dependency. Under the
head of love and affection in view of the judgment in the case
of Magma General Insurance Co. Ltd vs Nanu Ram Alias
Chuhru Ram reported in 2018 SCC 1546, Rs.15,000/- is
required to be awarded. Under the head of special diet,
transportation and medical expenses to the period of
hospitalization, Rs.10,000/- is required to be awarded. Towards
funeral expenses in view of the judgments Magma General
Insurance(supra) and Pranay sheti's(supra), Rs.15,000/- is
C/FA/3583/2013 JUDGMENT DATED: 11/02/2022
required to be awarded and under the head of consortium,
Rs.40,000/- is required to be awarded in view of the judgment
in the case of Magma General Insurance (supra).
5.3 Therefore, the total amount payable to the claimants is
calculated as Rs.5,29,820/-, with 8% interest p.a from the date
of the claim petition i.e. 29.03.1995, till its realization, which
will meet the ends of justice.
6. In view of above, the following order is passed.
6.1 The appeal is allowed to the aforesaid extent.
6.2 The appellants-claimants are entitled to get the amount of
compensation of Rs.5,29,820/- with 8% interest p.a. from the
date of claim petition I.e 29.03.1995 from the ST Coporation.
6.3 The respondent-ST Corporation is directed to deposit the
amount of Rs.5,29,820/- with 8% interest from the date of
application before the concerned Tribunal within 6 weeks from
the receipt of this order.
6.4 on depositing of amount, the Tribunal shall disburse the
said amount to the claimants, by payee cheque after following
due procedure.
6.5. Record and proceedings be sent back to the concerned
Tribunal forthwith.
(SANDEEP N. BHATT,J)
MANISH MISHRA
