Divisional Controller (Godhara) vs Daxaben Vikrambhai Bharwad
2022 Latest Caselaw 1822 Guj

     C/FA/2735/2013                               JUDGMENT DATED: 16/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2735 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                   DIVISIONAL CONTROLLER (GODHARA)
                                 Versus
                 DAXABEN VIKRAMBHAI BHARWAD & 2 other(s)
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Appearance:
MR HARDIK C RAWAL(719) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 16/02/2022

                             ORAL JUDGMENT

1. The present First Appeal is filed by the appellant - S.T. Corporation being aggrieved by and dissatisfied with the judgment and award dated 10.12.2012 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in Motor Accident Claim Petition No. 1145 of 2008, by which the Tribunal has partly allowed

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the claim petition and thereby awarded Rs.910,12,100/- to the claimants by holding S.T. Driver 100% negligent for the accident.

2. Brief facts of the case are that, on 10.03.2008, the deceased - Vikrambhai was going on his motorcycle in very slow speed from Vadodara to Godhra, at that time, at about 07:15 hours, the opponent No.1 - present respondent No.3 - driver of the ST Bus bearing registration No.GJ-17-Y-159 came with the bus in rash and negligent manner and dashed with the motorcycle near Mouje Boru turning. The deceased received multiple injuries and ultimately, he succumbed to the injuries. Criminal complaint being CR-I No.66 of 2008 has been lodged before the Kalol Police Station, District : Panchmahals and claim petition has been filed by the heirs of the deceased i.e. widow and son, before the Tribunal. Notices were served and the ST Corporation has filed its written statement and denied the averments made in the claim petition. Issues were framed by the Tribunal at Exh.18. Oral as well as documentary evidence were recorded by the Tribunal, which are mentioned in the Para : 8 and 9 of the impugned award. After considering the submissions made by the rival parties, the Tribunal has partly allowed the claim petition and awarded compensation as noted above. Hence, the present appeal by the ST Corporation before this Court.

3. Learned advocate Mr. Hardik Rawal for the appellant - Gujarat State Road Transport Corporation has submitted that the Tribunal has erred in attributing 100% negligence to the driver of the ST bus by ignoring the fact that the deceased has expired on 22.06.2008, whereas the accident has occurred on 10.03.2008 i.e. prior to about three months ago. He has submitted that there is no nexus between accident and cause of death which has occurred after almost three months from the date of accident. He has submitted that the amount

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awarded towards future loss of income is on higher side, as the Tribunal has considered 50% prospective loss of income, where at the best, the claimant can get 40%. He has drawn attention of this Court towards medical papers and also towards postmortem note where the cause of death is shown as septicemic shock and severe cagnexia with gangrene of the lower portion of large bowl. Therefore, he has submitted that prima facie, it seems that there is no nexus between the accident and cause of death and therefore, he has submitted that the appeal is required to be allowed in toto or in the alternative, on the count that the Tribunal has calculated the excess amount of quantum by adding prospective loss of income 50%, which should be considered as 40%. Learned advocate Mr. Rawal for the appellant has taken me to the deposition of Dr. Parsottambhai Ganeshbhai Rathod at Exh.31 and has pointed out that in cross-examination, the Doctor has stated that he has performed the postmortem of the deceased and he found that due to serious problems in the large intestine, the death has occurred and therefore, Mr. Rawal, learned advocate for the appellant has submitted that it cannot be said that there is nexus between accident and cause of death. He has also pointed out that the accident has occurred on the turning and further, the motorcycle is coming in full speed and in negligent manner and the deceased is responsible for occurrence of accident. Learned advocate Mr. Rawal for the appellant has relied on the decision of Hon'ble Apex Court in the case of U.P.State Road Transport Corporation versus Suresh Chand Sharma and others reported in (2010) 6 SCC 555 and has submitted that the Tribunal has to give reasons regarding 50% addition as prospective loss of income, which in the present case is not given. He has submitted that this appeal may be allowed.

4.1     Learned advocate Mr. Hakim for the respondents claimants






       C/FA/2735/2013                          JUDGMENT DATED: 16/02/2022

has submitted that from various medical papers, which are by way of medical bills for the treatment as well as the prescriptions of the concerned doctor, it shows that from March to May - 2008, the treatment of the deceased was going on. He has also relied on the very postmortem note which indicates the cause of death and he has also pointed out from the disability certificate regarding the injuries caused to the deceased from the said accident and he has submitted that in all probability, the death could occur due to septicemia developed due to the complications arises from the injuries and the said injuries arise from the said accident and therefore, it cannot be presumed that death is not occurred due to accident and there is no nexus between accident and the cause of death. He has pointed out from the deposition of the Dr. Rathod that he has only performed the postmortem and he has also recorded the injuries mentioned in the postmortem note in column Nos.17, 19, and 21 and he has also admitted that the treatment is also given pursuant to those injuries and it cannot be ignored that the death could be caused due to the complication arises from the injuries received by the deceased. Further, the very doctor has deposed in his deposition (Exh.31) that the death has occurred due to septicemia in large intestine, because the deceased could not be able to take proper and sufficient food and therefore, the deceased had much weakness and hence, got infected and therefore, he was shocked and died. Therefore, he has submitted that there is nexus between the accident and death.

4.2 On the issue of negligence, he has pointed out from the panchnama that the ST bus is damaged from the front side of the driver. Not only that, he has also pointed out from the cross- examination at Exh.39 of the ST driver that in his cross-examination, he has admitted that the bus is damaged on the right front side and driver has also admitted that he has run away from the place of

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accident, by leaving the ST bus on the spot and therefore, looking to the conduct of the driver as well as looking to the panchnama, etc., the finding of the Tribunal holding driver of the ST bus 100% negligent is just and proper.

4.3 He has also pointed that the Tribunal has granted just and proper compensation, however, he is unable to raise the dispute about the settled principles of law that prospective loss of income cannot be granted for more than 40% and/or at the most, prospective income can be considered by adding 40% into actual loss of income in place of 50% which is considered by the Tribunal, however he has submitted that considering the nature of accident, the Tribunal has rightly granted compensation to the claimant. Learned advocate Mr. Hakim has relied on the decision of this Court rendered in First Appeal No.3238 of 2007 and other cognate matter and has submitted that this Hon'ble Court has attributed 100% negligence in the similar set of facts. In support of his submissions, learned advocate Mr. Hakim has relied on the decision of this Court in the case of Gujarat State Road Transport Corporation versus Kamlaben Valjibhai Vora reported in 2001(3) GLR 2528 and has submitted that this appeal may be dismissed.

5.1 I have heard learned advocates for the respective parties. I have perused the record and proceedings of the Tribunal. I have considered the contentions of the rival parties. I have gone through the impugned judgment and award of the Tribunal. From the postmortem note and other medical papers, it clearly transpires that the accident has relevance for the death of the deceased and it cannot be ruled out that death is caused due to injuries received from the accident. There is no positive evidence to show that the death could not possible due to the injuries received and more

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particularly, it is a case of septicemia. The injuries have bearing on the accident which leads to death of the deceased. Therefore, contentions raised by learned advocate Mr. Rawal for the appellant - ST Corporation that there is no nexus between accident and the cause of death can not be accepted in the facts and circumstances of the present case. Therefore, no interference is required on this count in the impugned judgment.

5.2 Further, I have also considered the panchnama as well as deposition given by the claimant and the deposition of the ST driver, from which it clearly found that the ST bus is damaged on the front side of the driver and looking to the situation, the ST bus was situated at the time of panchnama and more particularly, looking to the conduct of the driver of the ST bus as he has run away from the place of accident by leaving bus there. Therefore, it clearly shows that the Tribunal has not committed any error by holding 100% negligence of the ST bus driver.

5.3 Now, dealing with the next contention of learned advocate for the appellant about the prospective income considered by the Tribunal, it is settled position of law as held by the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 that prospective income should not be more than 40% and in the present case, the Tribunal has awarded 50% prospective loss of income. Therefore, the said finding to that extent is required to be interfered with by this Court. Accordingly, this Court holds that the prospective loss of income should be considered as 40% in view of the settled legal position and calculation of the Tribunal is required to be altered accordingly and consequently, the impugned award is required to be modified, which would meet the ends of justice. Therefore, the actual

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loss of income is considered as Rs.39,600/- and 40% is to be added as prospective loss of income, then it would come to Rs.15,840/- and therefore, total prospective loss of income comes to Rs.55,440/- and from that, 1/3 amount for personal expenses is required to be deducted, which would be Rs.18,480/-, therefore, yearly loss of dependency comes to Rs.36,960/-, and since the deceased Vikrambhai was of aged about 22 years old at that time, so 18 multiplier is proper and accordingly, Rs.6,65,280/- would be the prospective loss of income. The Tribunal has rightly granted Rs.2,76,720/- towards medical expenses, Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium, Rs.2,500/- towards transportation and funeral expenses looking to the facts and circumstances of the case, though the amount which was awarded towards loss of estate and loss of consortium is on lower side, but since the claimant has not filed any cross appeal before this Court, therefore that finding is not disturbed by this Court. Accordingly, Rs.9,64,500/- would be the amount of total compensation. Therefore, the claimants are entitled to get the total compensation of Rs.9,64,500/- (in place of Rs.10,12,100/- which is awarded by the Tribunal) with 9% per annum interest and accordingly, award of the Tribunal is modified to that extent, which would meet the ends of justice. This Court is conscious that the Tribunal has awarded Rs.10,12,100/- as compensation to the claimants. Therefore, Rs.47,300/- with accrued interest thereon should be refunded to the appellant - ST Corporation by the claimants.

6. In view of above, the following order is passed.

6.1 The present appeal is partly allowed to the aforesaid extent. No order as to costs.

       C/FA/2735/2013                               JUDGMENT DATED: 16/02/2022




6.2     The impugned judgment and award passed by the Tribunal is

hereby modified to the extent, the claimants are entitled to get the total compensation of Rs.9,64,500/- (in place of Rs.10,12,100/- which is awarded by the Tribunal), with 9% per annum interest from the date of filing the claim petition till its realisation.

6.3 Since the claimants have received Rs.10,12,100/- as per award impugned, Rs.47,300/-, with accrued interest thereon, is ordered to be refunded by the claimants to the appellant - ST Corporation.

6.4 The Tribunal is directed to pay the amount lying with the Tribunal or in the FDR, with accrued interest thereon, to the claimants, by account payee cheque, after proper verification and after following due procedure and after deducting the refundable amount of Rs.47,300/- with accrued interest thereon.

6.5 Said refundable amount of Rs.47,300/-, with accrued interest thereon, shall be paid to the appellant - ST Corporation by the Tribunal, by account payee cheque, after following due procedure and verification.

6.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE