Gujarat State Road Transport ... vs Mukeshbhai Jagjivanbhai Parekh
2022 Latest Caselaw 310 Guj

     C/FA/1091/2019                               ORDER DATED: 11/01/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/FIRST APPEAL NO. 1091 of 2019
                            With
       CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
             In R/FIRST APPEAL NO. 1091 of 2019
==================================================
     GUJARAT STATE ROAD TRANSPORT CORPORATION
                           Versus
            MUKESHBHAI JAGJIVANBHAI PAREKH
==================================================
Appearance:
MS VYOMA K JHAVERI(6386) for the Appellant(s) No. 1
KRUPABEN D MEHTA(8974) for the Defendant(s) No. 2
MR VICKY B MEHTA(5422) for the Defendant(s) No. 2
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
==================================================
 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
         and
         HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                      Date : 11/01/2022
                       ORAL ORDER

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

1) Feeling aggrieved and dissatisfied with the judgment and award

dated 25.05.2018 passed by the (Special) Motor Accident Claims

Tribunal, City Civil Court, at Ahmedabad in Motor Accident Claim

Petition No. 807 of 2005, the Gujarat State Road Transport Corporation

(the ST Corporation) has preferred this Appeal under Section 173 of the

Motor Vehicles Act, 1988 ( " the Act, 1988" , for short).

2) The following facts emerge from the record of the appeal that the

accident took place on 03.04.2005, at about 02:45 a.m. It is the case of

C/FA/1091/2019 ORDER DATED: 11/01/2022

the original claimant that he was traveling as a passenger in the bus of the

appellant-corporation bearing registration No. GJ-18-V-8316. According

to the original claimant, when the bus reached at the Adalaj-Kalol

highway, the driver of the bus dashed the bus with one stationary truck on

rear side. As a result of which, the original claimant sustained serious

injuries including fracture as well as paraplegia. The claim petition was

filed under Section 166 of the Act, 1988 and the original claimant

claimed the compensation of Rs.40,00,000/-.

2.1 The original claimant was examined at Exh: 25. The claimant has

also relied upon the documentary evidence such as FIR at Exh: 30,

panchanama at Exh: 31, charge sheet filed against the driver of the Truck

at Exh: 32, medical bills at Exh: 33 to 36, copy of the Income Tax

Returns at Exh: 37, discharged card at Exh: 42, MRI report at Exh; 43,

disability Certificate at Exh; 44.

3) The Tribunal, after considering the evidence on record, came to the

conclusion that the drivers of both the vehicles were negligent for the

accident and attributed 80% negligence of the driver of the bus whereas,

20% negligence to the driver of the truck, who had parked the truck at

midnight on the side of the road. Considering the evidence on record, the

C/FA/1091/2019 ORDER DATED: 11/01/2022

Tribunal assessed the income of claimant at Rs.4,880/- per month

and considering the prospective income of the claimant determined

the income of original claimant at Rs.5,500/- per month and

considering the disability to the body as a whole to the extent of

95%, awarded a sum of Rs.10,03,200/- as compensation under the

head of future loss of income and also further awarded

Rs.1,00,000/- under the head of pain, shock and sufferings,

Rs.5,80,000/- under the head of medical expenses, Rs.22,000/- as

actual loss of income, Rs.1,00,000/- under the head of special diet,

transportation and attendant charges and Rs.1,00,000/- under the

head of loss of pleasure and amenities and enjoyment of life. Thus,

the Tribunal has awarded total compensation of Rs. 19,05,200/-

with interest at the rate of 8% from the date of filing of the claim

petition till its realization. Being aggrieved by the said, the ST

Corporation has preferred this first appeal.

4) Heard Ms. Vyoma Jhaveri, the learned advocate appearing for the

appellant, Mr. Nishit Bhalodi, the learned advocate appearing for the

respondent no.1 and Mr. Vicky Mehta, the learned advocate appearing for

the respondent No.2.

5) We have also perused the original record and proceedings.

        C/FA/1091/2019                             ORDER DATED: 11/01/2022




6)      Ms. Jhaveri, the learned advocate appearing for the appellant has

contended as under:

(I) That the Tribunal has only considered the evidence in form of FIR,

panchanama and has wrongly attributed the negligence at 80-20 %. Ms.

Jhaveri, further contended that though, the Tribunal has recorded that the

truck was parked without any signal or reflector at late night, on the

highway, the Tribunal has committed an error in coming to the

conclusion that the driver of the ST Bus was negligent to the extent of

80%. Ms. Jhaveri, further contended that the drivers of both the vehicles

should have been held to be equally negligent.

(II) It was also contended by Ms. Jhaveri that the Tribunal has

committed an error in considering the income of the original claimant at

Rs.5,500/- though as per the Income Tax Returns, the income of the

original claimant was only Rs.4880/- per month.

7) On the aforesaid two grounds, Ms. Jhaveri has contended that the

appeal deserves consideration and the impugned judgment and award

deserves to be modified.

8) Per contra, Mr. Bhalodi, the learned advocate appearing for the

respondent No.1 has supported the impugned judgment and award passed

C/FA/1091/2019 ORDER DATED: 11/01/2022

by the Tribunal.

9) Mr. Vicky Mehta, the learned advocate appearing for the

respondent No.2-the owner of the truck has contended that the Tribunal

has rightly appreciated the evidence on record considering the manner in

which, the accident occurred, while coming to the conclusion, the driver

of the truck was negligent only to the extent of 20%., Mr. Mehta, the

learned advocate for the respondent No.2 relying upon the panchanama at

Exh; 31 contended that the charge-sheet is also filed against the driver of

the bus and not against the driver of the truck.

9.1. Mr. Mehta, the learned advocate appearing for the respondent No.2

relying upon the version of the first informant i.e. the driver of the truck

in the FIR at Exh: 30 contended that the bus was being driven in rash and

negligent manner and the truck was parked on the side of the road and not

on the middle of the road. According to Mr. Mehta, the negligence as

appreciated by the Tribunal is correct and no interference is required in

exercising the power of appellate jurisdiction by this Court.

9.2. Mr. Mehta has contended that the appeal is being merit less,

deserves to be rejected.

9.3 No other and further submissions have been made by the learned

advocates appearing for the respective parties.

       C/FA/1091/2019                                ORDER DATED: 11/01/2022




10)    Upon considering the submissions made, two questions arise in this

appeal.


(I)    Whether the Tribunal has rightly assessed the negligence of the

drivers of both the vehicles i.e. the driver of the bus and the driver of the

truck in the ratio of 80-20% or not?

(II) Whether the Tribunal has correctly determined the income of

the original claimant or not?

11) In answer to question No.1, it deserves to be noted that the FIR was

lodged by the driver of the truck,wherein it is mentioned that the bus was

being driven in high speed and in a negligent manner. It is no doubt true

that the Tribunal has recorded that the truck was parked without any

reflector or light on highway at night hours, the fact remains that the bus

was being driven in full speed, which has come on evidence. The

appellant herein has admittedly not examined either the driver of the bus

or the driver of the truck.

12) Upon re-appreciation of the evidence on record and in absence of

any evidence to the contrary, we are of the considered opinion that the

Tribunal has correctly appreciated the evidence on record. Only because

the truck was without any reflector, the fact remains that it was parked on

C/FA/1091/2019 ORDER DATED: 11/01/2022

the side of the road and the ST bus, which was being driver at the high

speed dashed from behind. On overall re-appreciation of the evidence on

record, more particularly, FIR, charge sheet as well as panchanama of the

scene of offence, this Court is of the opinion that the Tribunal has rightly

assessed the negligence of the driver of the ST Bus and the driver of the

truck in the ratio of 80-20%. Thus, the question No.1 is answered

accordingly.

13) So far as the quantum is concerned, the Tribunal has based his

finding on the correct appreciation of the evidence in form of Income Tax

Returns at Exh: 37. The Tribunal has assessed the income of the original

claimant at Rs 4880/- per month and considering the degree of injuries

and the disability acquired by the respondent claimant has given

prospective income and has accordingly assessed the income of the

original claimant at Rs.5500/- per month.

14) On the contrary, we find that the age of the respondent claimant

was 28 years on the date of accident and hence an appropriate multiplier

would be 17 years instead of 16 years.

15) Upon appreciation of the evidence on record, we find that the

Tribunal has committed no error in granting the compensation under the

head of future loss of income so as under any of the heads. In opinion of

C/FA/1091/2019 ORDER DATED: 11/01/2022

this Court, what is granted by the Tribunal is just and adequate

compensation and hence no interference is called for. The question No.2

raised in the appeal is answered accordingly.

16) Resultantly, the appeal fails and is hereby dismissed accordingly..

The judgment and award dated 25.05.2018 passed by the (Special) Motor

Accident Claims Tribunal, City Civil Court, at Ahmedabad in Motor

Accident Claim Petition No. 807 of 2005 stands confirmed. There shall

be no order as to costs. Record and Proceedings be transmitted back to

the Tribunal forthwith.

Since the order passed in the main matter, connected civil application

would not survive and hence the same stands disposed of accordingly.

Sd/-

(R.M.CHHAYA,J)

Sd/-

(NIRAL R. MEHTA,J) VISHAL MISHRA