Gujarat High Court
Rajasthan State Road Transport ... vs Yunus Vali Dakri on 5 January, 2022
Bench: Niral R. Mehta
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3156 of 2010
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of
2021
In R/FIRST APPEAL NO. 3156 of 2010
With
R/CROSS OBJECTION NO. 3 of 2013
In
FIRST APPEAL NO. 3156 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
=====================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
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 ?
==================================================
RAJASTHAN STATE ROAD TRANSPORT CORPORATION LIMITED
THROUGH
Versus
YUNUS VALI DAKRI & 4 other(s)
==================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Defendant(s) No. 1
MR SANDIP C SHAH(792) for the Defendant(s) No. 4
MS MOXA G THAKKER(3063) for the Defendant(s) No. 4
Page 1 of 12
Downloaded on : Sun Apr 24 08:16:35 IST 2022
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
RULE SERVED for the Defendant(s) No. 2,3,5
=====================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 05/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1) Feeling aggrieved and dissatisfied by the judgment and award
dated 30.03.2009 passed by the Motor Accident Claims Tribunal
(Mains), Bharuch, the original respondent No. 5-Rajasthan State
Road Transport Corporation Limited (" the RSRTC", for short) has
approached this Court by way of this appeal under the provisions of
Section 173 of the Motor Vehicles Act, 1988 ( " the Act, for short).
2) The original claimant had filed the claim petition under
Section 166 of the Act, 1988, seeking, inter alia, compensation of
Rs. 23,00,000/- for the grievous injuries received in a vehicular
accident between two vehicles i.e. Tata Sumo bearing registration
No. GJ-6-AA-9137 and Bus registration No. RJ-14-P-7193. The
Tribunal has, however, awarded sum of Rs.13,38,334/- under the
various heads as under:-
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
Sr. Particulars Amount
No.
1 Towards Future Loss of Income Rs.9,00,000/-
2 Towards Pain, Shock and Rs.25,000/-
sufferings
3 Towards Actual loss of income for Rs. 1,80,000/-
three months
4 Towards Medicines and Medical Rs.1,70,834/-
treatment
5 Towards the transportation Rs.35,500/-
6 Towards Special Diet and Rs.20,000/-
Attendant Charges
Total Rs.13,38,324/-
3) As per the claimant, he being a "British Citizen" but Indian
origin, while on his holiday to his native, on 09.10.2001 i.e. on the
fateful day, he along with Firozaben and other friends was traveling
in Tata Sumo i.e. GJ-06-AA-9137 from Bharch to Agra. On the way
to Agra, a Bus bearing registration No. RJ-12-7931 was coming
from Jaipur towards Ajmer and the Tata Sumo was going from
Ajmer to Agra. The driver of the Bus was driving rashly and
negligently and thereby dashed with the Tata Sumo. Pursuant to the
said accident, the claimant had received serious injuries, such as
fracture on right knee, fracture on right wrist, injuries on head and
teeth were broken. Therefore, an application was filed by the
claimant before the Tribunal, seeking, inter alia, compensation on
the ground of various head on pecuniary and non-pecuniary loss.
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
4) Upon service of notice, the Insurance Company of the Tata-
Sumo appeared and has filed its written statement at exhibit 16.
The opponent No. 4 i.e. the driver of the bus though served, has
chosen not to appear before the Tribunal. However, the present
appellant i.e. opponent no. 5 has contested the claim petition by
filing written statement at exh: 56.
5) The Tribunal, after having considered the evidence on record,
came to the conclusion that the bus went on wrong side and
dashed with the Tata Sumo and thereby driver of the bus was held
to be solely negligent for the accident, in question. Thereafter, the
Tribunal has proceeded to determine the compensation by assessing
the monthly income in absence of any cogent and convincing
evidence produced. By considering the minimum wages prevailing
in the Leicester, United Kingdom, and thereby, assessed 1,000 £
pound per month as just and reasonable.
6) Considering the exchange rate at Rs.60 per pound, the income
of the claimant was assessed at Rs.60,000/-. Considering the injury
at 12.5% of the body as a whole, (Rs.60,000X12.5%) Rs.7,500/-
came to be considered as future loss of Income and accordingly
Rs.90,000/- (Rs.7,5000x12) per year. The Tribunal has considered
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
the age as 41 years and thereby applied the multiplier of 10. Thus,
the total compensation under the head of future loss of income
came to be awarded at Rs.9,00,000/-.
7) The Tribunal has further awarded Rs.1,80,000/- under the
head of actual loss of income, considering the period of three
months as the applicant could not work for a period of three
months due to the injuries received. Rs.25,000/- came to be
awarded under the head of pain, shock and sufferings,
Rs.1,37,831/- under the head of medicines and medical treatment,
Rs.75,500/- under the head of transportation, Rs.20,000/- towards
special diet and attendant charges. Thus, in all, the Tribunal has
awarded Rs.13,38,334/- towards compensation with interest at the
rate of 9% p.a. to the claimant.
8) Being aggrieved by the aforesaid judgment and award, the
original respondent No.5- the RSRTC has preferred the present
appeal before this Court, challenging, inter alia, the award passed
by the Tribunal.
9) We have heard Mr. Paresh M. Darji, learned advocate
appearing for the appellant, Mr. Dipak R. Dave, the learned
advocate appearing for the respondent No.1, Mr. Sandip C. Shah
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
and Ms.Moxa Thakker, the learned advocates appearing for the
respondent No. 4. The respondents No.2,3 and 5, though served,
have chosen not to contest this appeal either in person or by any
lawyer.
9.1 Mr. Paresh M. Darji, submitted that the Tribunal has
committed an error in holding the driver of the S.T.Bus as sole
negligent for the accident in question. He has submitted that the
Tribunal has completely misread the evidence, and thereby,
committed serious error in holding the driver of the S.T.Bus as sole
negligent.
9.2 Mr. Darji, has submitted that it is the case of Contributory
negligence because the driver of the Tata Sumo was also responsible
for the cause of accident. To substantiate the said contention, Mr.
Darji has relied upon the oral evidence of Manoj Kumar
Laxminarayan Chaudhary, who happened to be the driver of the
S.T.Bus at exh: 160.
9.3. According to Mr. Darji, the Tribunal has completely misread
the evidence of the driver of the bus and erred in holding the
driver of the S.T.Bus as sole negligent.
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
9.4 Mr. Darji, submitted that the Tribunal has also committed an
error in computing the income of the claimant, and thereby,
committed an error in awarding the compensation under the head
of future loss of income and actual loss of income.
9.5 Mr. Darji, submitted that as such there is no evidence much
less cogent in nature produced by the claimant about his income.
10) Under the circumstances, the Tribunal has committed an error
in assessing the income of the claimant as thousand pound per
month.
11) In view of the aforesaid contention, Mr. Darji has contented
that the appeal may be allowed by suitably modifying the judgment
and award passed by the Tribunal.
12) Per contra, Mr. Dipak R. Dave, the learned advocate
appearing for the respondent No.1 has vehemently opposed the
present appeal and further submitted that the compensation
awarded by the Tribunal is not just and fair and the same may be
enhanced.
12.1 Mr. Dave, has submitted that the Tribunal has committed
serious error in granting multiplier of 10. He, therefore, submitted
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
that considering the age of the claimant and considering the
judgment of the Honourable Supreme Court in the case of Sarla
Verma & Ors. vs. Delhi Transportation Corporation & Anr , reported
in 2009 (6) SCC 121, the multiplier may be awarded at 14 instead
of 10.
12.2 Mr. Dave, submitted that the tribunal has also erred in
considering the conversion rate at Rs.60, however, at the relevant
point of time, the same was Rs.67.92. He, therefore, submitted that
looking to the conversion rate, the same should have been awarded
at Rs.69 instead of Rs.60. He, therefore, in view of the aforesaid,
urged to this Court to enhance the compensation by modifying the
judgment and award of the Tribunal.
13) Ms. Moxa Thakker, the learned advocate for the Insurance
Company of Tata Sumo has opposed the first appeal filed by the
RSRTC and contended that the judgment and award passed by the
Tribunal is just and proper and does not deserve any modification.
13.1 Ms. Thakker, submitted that the Tribunal is perfectly justified
in holding the driver of the S.T.Bus as sole negligent and the same
is based on evidence produced before the Tribunal. She, thus,
submitted that the first appeal filed by the RSTRC be dismissed
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
accordingly.
14) No other and further submissions have been made by the
learned advocates appearing for the respective parties.
15) We have heard the learned advocates appearing for the
respective parties and have gone through the records and
proceedings.
16) Having gone through the records and proceedings, more
particularly, the evidence in the form of First Information Report at
exh: 81, which was lodged by the first informant, wherein, no
uncertain terms, it has been stated that, it was the Bus driver, who
driven the bus rashly and negligently and dashed with the Tata
Sumo by overcoming on wrong-side.
17) We have perused the charge-sheet papers, wherein, the driver
of the bus has been chargesheeted for the offence punishable under
Sections 279, 337 and 338 of the Indian Penal Code, 1860 (the
Code). Thus, having perused the aforesaid documentary evidence,
we find no infirmity in the finding recorded by the Tribunal,
holding, inter alia, the driver of the S.T.Bus as sole negligent.
Additionally, we also take notice of the fact that the driver of the
Tata Sumo was not examined by the S.T.Corporation. Therefore, in
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
our view, so as to attribute the contributory negligence, the driver
of the offending vehicles are necessary to be examined. As the
driver of the vehicle, was not examined, he cannot be held
contributory negligent for the accident.
18) In the present case, the driver of the Tata Sumo, as stated
above, was not examined. Thus, we are not inclined to hold the
driver of the Tata Sumo as contributory negligent. Thus, we hereby
reject the contention of the appellant as to the case of contributory
negligence instead of sole negligence.
19) So far as the quantum is concerned, we take notice of the
fact that the Tribunal, in absence of any evidence as to the income
of claimant, relied upon the schedule of the minimum wages
prevailing in the Leicester, United Kingdom. Thus, we are not
inclined to interfere, so far as the aspect of determining the income
of the claimant is concerned. It takes us further to consider whether
the conversion in Indian rupee is just and proper or not, as
contended by the claimant-objector that we have perused the
conversion rate, as suggested by the State Bank of India that the
conversion rate, at the relevant point of time, was Rs.67.92. Thus,
the contention raised by the claimant that the Tribunal has
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
committed serious error in adopting the rate of Rs.60 is required to
be accepted and accordingly we hold that the Tribunal should have
considered the conversion rate of Rs.68 so as to assess the monthly
income of the claimant. Thus, in our considered opinion, the
monthly income of the claimant should have been awarded at
Rs.69,000/- p.m. [1 (pound) X 69 (conversion rate) = Rs.69,000/-
p.m.].
20) Considering the ratio laid down by the Honourable Supreme
Court in the case of Sarla Verma (Supra) , an appropriate
multiplier, looking to the age of the claimant, should be 14 years.
Rs. 69,000 x 12.5% negligence = Rs.8,625/- p.m. x 12 =
Rs.1,03,500 p.a. X 14 (Multiplier as the age of the deceased was 41
years) = Rs. 14,49,000/-(future loss of Income)
21) In view of the forgoing discussions, this appeal preferred by
the appellant-original opponent No.5 is hereby dismissed and cross
objection filed by the claimant is partly allowed by modifying the
judgment and award passed by the Tribunal, which is as under:-
Sr. Particulars Amount
No.
1 Towards Future Loss of Income Rs.14,49,000/-
C/FA/3156/2010 JUDGMENT DATED: 05/01/2022
2 Towards Pain, Shock and Rs.25,000/-
sufferings
3 Towards Actual loss of income for Rs. 1,80,000/-
three months
4 Towards Medicines and Medical Rs.1,70,834/-
treatment
5 Towards the transportation Rs.35,500/-
6 Towards Special Diet and Rs.20,000/-
Attendant Charges
Total Rs.18,80,334/-
22) As the Tribunal has awarded an amount of Rs. 13,38,334/-,
the respondent No.4-Insurance Company shall deposit the additional
amount of compensation of Rs. 5,42,000/- before the Tribunal with
interest at the rate of 6% on the enhanced compensation within the
period of eight weeks from the date of receipt of the order of this
Court.
23) In view of the aforesaid, therefore, the appeal is disposed of
accordingly. 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.
Sd/-
(R.M.CHHAYA,J)
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
