Gujarat High Court
Rajasthan State Road Transport ... vs Karsanbhai Virjibhai Ramani on 13 January, 2022
Bench: Niral R. Mehta
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2638 of 2008
With
R/FIRST APPEAL NO. 2639 of 2008
With
R/FIRST APPEAL NO. 2640 of 2008
With
R/FIRST APPEAL NO. 2641 of 2008
With
R/FIRST APPEAL NO. 2642 of 2008
With
R/FIRST APPEAL NO. 2643 of 2008
With
R/FIRST APPEAL NO. 2644 of 2008
With
R/FIRST APPEAL NO. 2645 of 2008
With
R/FIRST APPEAL NO. 2646 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA sd/-
==============================================================
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 copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
RAJASTHAN STATE ROAD TRANSPORT CORPORATION
Versus
KARSANBHAI VIRJIBHAI RAMANI & 3 other(s)
==============================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
DECEASED LITIGANT(100) for the Defendant(s) No. 1
Page 1 of 11
Downloaded on : Sun Apr 24 09:30:59 IST 2022
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1.1,1.2,1.3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 2,3
=============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
common judgment and award dated 15.11.2007 passed in MACP
Nos. 1608 of 1998 and other allied Claim Petitions passed by the
Motor Accident Claims Tribunal (Auxi), Rajkot, the Rajasthan
State Road Transport Corporation has preferred appeals under
Section 173 of Motor Vehicles Act, 1988.
The heirs of the deceased Karsanbhai Virjibhai Ramani
who are original claimants in First Appeal No.2638 of 2008
arising out of MACP No.1608 of 1998 have filed cross appeal for
enhancement being First Appeal No.2649 of 2009. The same set
of evidence is adduced before the Tribunal and therefore, all the
appeals are heard together and are decided and disposed of by
this common judgment.
2.0. The following facts emerge from the record of the present
appeals:
2.1. That, on 28.05.1998, deceased Karsanbhai Virjibhai
Ramani, Nitaben @ Savitaben, Hiteshbhai Jivrajbhai, Vijay
Babubhai Ramani, Babulal Jasmatbhai, Muktaben Babulal,
Kailashben Karsanbhai, Hiren Karsanbhai and Ashish
Karsanbhai were travelling in Tata Sumo Car bearing
registration No.GJ-1-HH-1593 driven by Karsanbhai Ramani in
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
moderate speed on the left side of the Road. It the case of the
original claimants that when the said Tata Sumo car was
proceeding within Ravadi District and Baval Taluka of Haryana
State and reached near the turning of the Road, the Bus bearing
registration No. RJ-06-P-0750 of Rajasthan State Road
Transport Corporation came from opposite direction being driven
in rash and negligent manner and in excessive speed came from
behind and went into wrong side while overtaking vehicle, as a
result of which, the bus collided with Tata Sumo, on account of
which, serious accident took place and ultimately 5 persons
succumbed to the said injuries and other persons sustained
serious injuries. An FIR was lodged with the jurisdictional police
station and the respective claimants have filed claim petitions
under Section 166 of the Act and claiming compensation as
prayed for in the respective claim petition. The original claimants
also adduced following oral as well as documentary evidence
before the Tribunal:
Exh.No. Particulars
28 Affidavit of Kailashben Ramani
30 Affidavit of Hiteshbhai
31 Affidavit of Jasmatbhai Ramani
34 Affidavit of Hirenbhai Ramani
37 Affidavit of Ashishbhai Ramani
44 FIR
47 Panchnama
48 Chargesheet
50 Police Statement
128 Driving License of the Driver
145 Insurance Policy
137 Pay slip
The Tribunal after appreciating the evidence on record and
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
considering the submissions made by the respective parties,
partly allowed the respective claim petition and awarded
following compensation:
Claim Petition No. Compensation amount (Rs.)
1608 of 1998 3,82,044/-
1370 of 1998 4,14,000/-
1371 of 1998 98,587/-
1373 of 1998 1,50,000/-
1374 of 1998 10,38,000/-
1375 of 1998 3,66,000/-
1381 of 1998 27,315/-
1382 of 1998 90,454/-
1383 of 1998 25,000/-
The aforesaid compensation awarded with 9% interest from the
date of application till its realization with proportionate costs.
Being aggrieved and dissatisfied with the same, the Gujarat
State Road Transport Corporation as well as original claimants
have preferred present appeals.
3.0. Heard Mr. Paresh Darji, learned advocate for the appellant
- Rajasthan State Road Transport Corporation in all the appeals
filed by it, Mr. Pankaj Desai, learned advocate for the original
claimants in all the appeals filed by the RSRTC, Mr. Sunil
Parikh, learned advocate for the Insurance Company of the
appellant. Mr. Pankaj Desai, learned advocate for the appellants-
original claimants in First Appeal No.2649 of 2009, Mr. Paresh
Darji, learned advocate and Mr. Sunil Parikh, learned advocate
for the respective respondents in First Appeal No. 2649 of 2009
and have also perused the original record and proceedings of the
case.
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
4.0. Mr. Paresh Darji, learned advocate for the appellant-
RSRTC has contended that the Tribunal has wrongly come to the
conclusion that the driver of ST Bus was solely negligent. Mr.
Darji further contended that the conductor of the bus which was
involved in the accident has been examined at Exh.129 and
version of the said witness is totally ignored by the Tribunal.
According to Mr. Darji, the Tribunal has not appreciated the the
manner in which the accident has occurred and has also
misread the FIR at Exh. 44 and panchnama at Exh.47 and has
passed an excessive award in favour of the claimants wherein
five persons have expired and four were injured. Mr. Darji
contended that the driver of TATA Sumo car was also equally
negligent and Tribunal ought to have come to the conclusion
that the driver of both the vehicles involved in the accident were
equally negligent instead of coming to the conclusion that the
driver of ST bus was solely negligent. On the aforesaid grounds,
Mr. Darji contended that all the appeals filed by the RSRTC
deserves to be allowed.
4.1. Mr. Darji further contended that the appeal filed by the
original claimants is totally misconceived. Mr. Darji contended
that the Tribunal has rightly assessed the income of the based
upon correct appreciation of evidence on record. Mr. Darji
referring to the income tax returns contended that the Tribunal
has also considered the fact that deceased was a partner in the
firm and therefore, has rightly assessed the income of the
deceased at Rs.4000/- per month. According to Mr. Darji the
compensation awarded under the different heads is just and
adequate and no interference is called for.
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
5.0. Per contra, Mr. Desai, learned advocate for the original
claimants opposed the appeal filed by the RSRTC. Referring to
the same set of evidence i.e. FIR and panchnama, it was
contended by Desai, learned advocate for the original claimants
that bus was being driven in rash and negligent manner, which
resulted into death of five persons and severe injuries has been
caused to other four persons traveling in the bus. According to
Mr. Desai, the Tribunal has rightly come to the conclusion that
the driver of the ST Bus was solely negligent and no other view is
possible. Mr. Desai further contended that the Tribunal has
committed error in not considering any income from the
agricultural income. Mr. Desai contended that it was brought on
record and proved by the original claimants of Claim Petition No.
1608 of 1998 that the deceased was a partner and also derived
independent income from the agricultural operation. Mr. Desai
contended before the Tribunal that income of the deceased at
least should be assessed at Rs.5000/- per month. Mr. Desai
also further contended that the age of the deceased was 44 years
and therefore, as per the judgment of the Hon'ble Supreme Court
in the case of Sarla Verma and ors. vs. Delhi Transport
Corporation and Anr. reported in (2009) 6 SCC 121, appropriate
multiplier would be 14 and not 11 as granted by the Tribunal.
Relying upon the judgment of the Hon'ble Supreme Court in the
case of Magma General Insurance Co. Ltd vs. Nanu Ral Alias
Chuhur Ram & Ors reported in (2018)18 SCC 130 and in the
case of United India Insurance Company Limited vs. Satinder
Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, it was
contended by Mr. Desai that the other claimants would also be
entitled to consortium which has not been granted by the
Tribunal. Mr. Desai contended that as this appeal is filed by the
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
original claimants, just and adequate compensation be awarded
to the appellants- original claimants and the appellants are
ready and willing to pay required court fees for any amount of
compensation that may be awarded by this Court. Mr. Desai
contended that appeals filed by the RSRTC are misconceived and
deserve to be dismissed and the appeal filed by the original
claimants being First Appeal No.2649 of 2009 deserves to be
allowed.
6.0. Mr. Sunil Parikh, learned advocate for the Insurance
Company has submitted that the impugned judgment and award
is proper and the Tribunal has awarded just and adequate
compensation which does not require any modification.
7.0. No other and further submissions/ contentions/ grounds
have been raised by the learned advocates for the respective
parties.
8.0. Upon hearing the learned advocates for the respective
parties and on perusal of the record and proceedings as well as
conclusion arrived at by the learned Tribunal, the points /
questions which arise for determination in this appeal are as
under:
(I). Whether the Tribunal has rightly come to the conclusion
that the driver of ST Bus was solely negligent or not ?
(II). Whether the Tribunal has rightly assessed the income of
the deceased or not ?
(III). Whether the claimants are entitled to any compensation
under the filial, parental or spousal consortium or not ?
9.0. As far as point no.1 raised in this appeal is concerned, it
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
would be apt to refer to the panchnama of the scene of
occurrence at Exh.47 as well as FIR at Exh.44. The evidence on
record indicates that the driver of the ST Bus was driving the
bus in excessive speed in rash and negligent manner that too
near the curve. It is evident from the evidence on record that the
driver of the bus which was being driven in high speed tried to
overtake and dashed with the Tata Sumo which was coming
from the opposite direction. Even considering the FIR at Exh.44
and police statement of one Ashish at Exh.50, it clearly
transpires that the accident has occurred because of the sole
negligence of the driver of the ST Bus. Moreover, it is also
noteworthy that the driver of the ST Bus was chargesheeted as
per chargesheet at Exh.48 and came to be convicted for the said
offence as it evidence from the judgment at Exh.121. Even
considering the deposition at Exh.129, the same does not inspire
any confidence, more so, the driver of the ST Bus has been
convicted for the said offence under Section 304-A of IPC and
has came to be sentenced for rigorous imprisonment for four
months and fine of Rs.750/-. The panchnama further shows
that bus was lying on the wrong side of the road and same has
been rightly considered by the Tribunal. Upon re-appreciation of
the evidence on record, we find that the Tribunal has committed
no error in coming to the conclusion that the driver of the ST
Bus was solely negligent. In view of the aforesaid, point no.1
raised in this appeal is answered accordingly. The finding arrived
at by the Tribunal to the effect that driver of ST Bus was solely
negligent is correct and no error is found. Consequently, all the
appeals filed by the Rajasthan State Road Transport Corporation
on the sole ground of negligence fail.
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
10. Upon independently considering the First Appeal No.2649
of 2009 filed by the original claimants, it is matter of fact that
learned counsel for the original claimants restricted the
determination of income to be Rs.5000/- per month. Upon re-
appreciation of the evidence on record, it reveals that the
deceased was a partner and even income tax returns produced
on record are relied upon to prove the income of the deceased.
We find that the Tribunal while determining the income of the
deceased has not considered any income from the agricultural
land that was possessed by the deceased. We are conscious of
the fact that the land has remained with the original claimants -
heirs of the deceased Karsanbhai Virjibhai Ramani, however
while considering the income of the deceased, managerial loss
has to be considered. Upon re-appreciation of the evidence, we
find that the income of the deceased can safely be assessed at
Rs.5000/- instead of Rs.4000/- as determined by the Tribunal.
The age of the deceased was 44 years on the date of accident
which is an admitted fact. As per the judgment of the Hon'ble
Supreme Court in the case of Sarla Verma (supra), the
appropriate multiplier would be 14 and not 11 as granted by the
Tribunal. In view of the aforesaid, point no.2 raised in this
appeal is answered accordingly Having come to the aforesaid
conclusion, the original claimants would be entitled to
compensation under the head of loss of dependency as under:
"Rs. 5000/- per month (income) + Rs.1500/- (30%
prospective income) = 6500/- - 2167 /- (rounded off) (1/3
towards personal income = Rs.4333/- x 12 = 51,996/- X
14 (Multiplier as the age of the deceased was 44 years) =
Rs.7,27,944/-."
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
Hence, question as regard income raised in this appeal is
answered accordingly.
11. Following the ratio laid down by the Hon'ble Supreme
Court in the case of Satinder Kaur @ Satwinder Kaur (supra),
and in the case of Magma General Insurance Co. Ltd(supra), the
original claimants would be entitled to total consortium
including spousal and filial consortium to the extent of
Rs.40,000/- each i.e. total compensation of Rs. 1,20,000/-. In
view of the aforesaid, point no.3 raised in this appeal is
answered accordingly. The original claimants would also be
entitled to further amount of Rs15,000/- towards loss of estate
and Rs. 15,000/- towards funeral expenses and thus, the
respondents claimants would be entitled to compensation as
under:
Particulars Amount (Rs.)
Future loss of income 7,27,944/-
Filial and spousal consortium 1,20,000/-
Loss of estate & Funeral 30,000/-
expenses
Total Compensation 8,77,944/-
12. Thus, the claimants would be entitled to compensation of
Rs.8,77,944/-. As the Tribunal has awarded an amount of Rs.
3,82,044/-, the respondent- Rajasthan State Road Transport
Corporation shall deposit the additional amount of
Rs.4,95,900/- with the Tribunal within a period of four weeks
from the receipt of the order. However, considering the fact that
accident is of the year 1998, on the additional amount awarded
by this Court, the original claimants would be entitled to interest
only at the rate of 6%. Thus, First Appeal No.2649 of 2009 is
C/FA/2638/2008 JUDGMENT DATED: 13/01/2022
allowed to the aforesaid extent and impugned judgment and
award passed by the learned Tribunal is modified to the
aforesaid extent. The Rajasthan State Road Transport
Corporation shall deposit the additional amount of
Rs.4,95,900/- with 6% interest from the date of claim petition till
its realization within a period of eight weeks from the date of
receipt of the order. Rest of the award passed by the learned
Tribunal remained unaltered. The original claimants would be
entitled to interest at the rate of 9% on the amount awarded by
the Tribunal i.e. Rs.3,82,044/- from the date of filing of claim
petition till its realization. The original claimants i.e. appellant
of First Appeal No. 2649 of 2009 shall deposit deficit court fees
and disbursement as per award be made only after such Court
fees is deposited by the appellant. 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)
KAUSHIK J. RATHOD
