Gujarat High Court
Anita Deepakkumar Singh vs Jetharam Dirdhram on 18 October, 2022
Bench: A.J.Desai
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1845 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. 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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ANITA DEEPAKKUMAR SINGH & 4 other(s)
Versus
JETHARAM DIRDHRAM & 2 other(s)
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Appearance:
ANURAG V AGRAWAL(9295) for the Appellant(s) No. 1,2,3,4,5
MR DIPESH D SONI(9996) for the Appellant(s) No. 1,2,3,4,5
MR SHALIN N MEHTA(2010) for the Defendant(s) No. 3
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 11
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C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
Date : 18/10/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 ("The Act" for short), is filed by original claimants as
appellant, challenging the judgment and award dated
30.8.2010, passed by the Motor Accident Claims Tribunal
(Main), Bharuch in MACP No.386 of 2008, wherein the
Tribunal awarded total compensation of Rs.25,31,360/- with
interest @ 9% p.a. from the date of filing of claim petition till
realization with proportionate costs. In relation to negligence,
the Tribunal held driver of Truck No. RJ-04-GA-0637
negligent, to the extent of 80% and driver of motorcycle No.
GJ-16-R- 9658, negligent to the extent of 20%.
2. Brief facts are as under:
2.1. On 17.4.2008, at around 8.00 a.m., Maheshprasad Kishan
Singh was going on his motorcycle No. GJ-16-R-9658 to reach
at Ankleshwar Railway Station to catch train to attend to his
job. When he reached near Jayaben Modi Hospital, at that
time one Truck No. RJ-04-GA-0637 driven by original
opponent No.1, came in full speed in rash and negligent
manner and collided with motorcycle resulted into accident.
Maheshprasad Kishan Singh (hereinafter referred to as "the
deceased"), sustained severe injuries and succumbed to the
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
same.
3. For the said accident, the legal heirs of the deceased
filed Claim Petition under Section 166 of the Act seeking
compensation of Rs. 40 Lacs.
4. Upon claim petition being filed, notices were issued. The
respondent - Insurance Company appeared and filed its written
statement. It was case of the original claimants that the
accident occurred on account of sole negligence on part of the
driver of the Truck No. RJ 04 GA 0637. It was further their
case that the deceased was serving in Bank of Baroda at
Pandesara Branch, Surat and drawing salary of Rs.19,455/-per
month. The deceased was healthy with fair chances of
promotions in his service.
5. The Tribunal after hearing the parties and upon
appreciation of evidence on record decided the issues as under:
6.1. In relation to negligence, the Tribunal held driver of
Truck No. RJ 04 GA 0637, as negligent to the extent of 80%
and driver of Motorcycle No.GJ 16 R 9658, negligent to the
extent of 20%.
6.2. In relation to compensation, the Tribunal awarded total
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
compensation of Rs.31,64,200/- and after deducting 20%
contributory negligence of driver of Motor Cycle (the
deceased), awarded Rs.25,31,360/- to the appellants - original
claimants. The Tribunal assessed the income of the deceased
at Rs.19,455/- p.m. and from income after deducting tax,
assessed income at Rs. 17,440/-per month. 50% was added
towards future prospective income. 1/3rd was deducted
towards personal expenses to arrive at dependency loss. As
the deceased was 36 years of age, multiplier of 15 was made
applicable. The Tribunal under other conventional heads
awarded compensation of Rs.25,000/- and after deducting 20%,
contributory negligence of the deceased, awarded compensation
of Rs.25,31,360/-. Aggrieved by the negligence held as well as
quantum of compensation awarded, present appeal is filed by
the original claimants.
7. Heard Mr. Anurag V. Agrawal, learned advocate for the
appellants - original claimants and Mr. Maulik Shelat, learned
advocate for the Insurance Company - Respondent No.3. As
liability has not been denied, presence of other respondents is
not necessary and dispensed with. The Record and
Proceedings of the case have been secured from the Tribunal
and placed before this Court for perusal.
8. Mr. Anurag Agrawal, learned advocate for the appellants
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
submitted that the Tribunal is in error in holding, the driver of
motorcycle (the deceased), negligent to the extent of 20% for
occurrence of the accident. Relying upon FIR filed by cleaner
of the truck- Exh.33, he submitted that it is stated in the FIR
that, the driver of the truck lost control over the steering and
by going wrong side, the truck dashed with motorcycle.
Referring to panchnama at Exh.34, he submitted that from the
scene of incident, it is clear that truck came on the wrong side
of the road and dashed with motorcycle from front. This
clearly suggest that the driver of the Truck No. RJ 04 GA 0637
was sole negligent for occurrence of the accident and,
therefore, the Tribunal is in error in holding that the driver of
motorcycle was negligent to the extent of 20%. Referring to
the findings recorded by the Tribunal, he further submitted
that the Tribunal held deceased negligent to the extent of 20%,
purely on presumption that the deceased might be in hurry to
reach at the railway station so as to catch train as he was
commuting and while overtaking there was a possibility that
the accident took place. He submitted that the finding
recorded by the Tribunal is on presumption and contrary to
the evidence on record and therefore, may not be believed.
8.1. In relation to compensation, relying upon the decision of
Hon'ble Supreme Court in the case of National Insurance
Company Limited v. Pranay Sethi and Ors. reported in (2017)
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
16 SCC 680 and Sarla Verma (Smt) and Ors. vs. Delhi
Transport Corporation and Anr. reported in (2009) 6 SCC 121,
he submitted that personal expenses had been erroneously
deducted by the tribunal as 1/3 instead of ¼. Referring to
decision of Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited vs. Nanu Ram alias
Chuhru Ram and Ors. reported in (2018) 18 SCC 130 and New
India Assurance Company Limited vs. Somwati and Ors.
reported in (2020) 9 SCC 644, he submitted that, as the
deceased was survived by 5 dependents, the original claimants
would be entitled to Rs.40,000/- each towards consortium. He
further submitted that appellants would be entitled for
compensation under loss of estate and funeral expenses in
accordance with the decision of Hon'ble Supreme Court in the
case of Pranay Sethi and Ors. (supra). He thus submitted to
enhance the compensation and to allow his appeal.
9. On the other hand, Mr. Maulik Shelat, learned advocate
for the Insurance Company, supported the judgment and award
of the Tribunal dated 30.8.2010. He submitted that as
recorded in the scene of panchnama, that it was head on
collision and the motorcycle was damaged from left side of the
truck, therefore, the finding of the Tribunal that the accident
might occurred by overtaking the motorcycle cannot be
ignored. He relied upon the FIR and submitted that it was
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
head on collision, occurred on the bright day light in the
morning, therefore also the negligence of the motorcycle
cannot be ignored. He, therefore, submitted that the appeal of
the appellants be dismissed.
9.1. In relation to compensation, he could not controvert the
submission of learned advocate for the appellants that in view
of the decision of Hon'ble Supreme Court in the case of
Pranay Sethi & Ors. (supra) and Sarla Verma (Smt) and Ors.
(supra), 1/3 amount is to be deducted towards personal
expenses. For compensation under other conventional heads,
he also relied upon decisions of Hon'ble Supreme Court cited
by the appellants.
10. Having heard learned advocates for the respective parties
and upon re-appreciation of evidence on record, it is noticed
that in the FIR lodged by cleaner of truck, it is stated that the
driver of the truck lost control over the steering and it dashed
with the motorcycle. Further from the record it is noticed that
the driver of the truck appeared before the Tribunal and filed
its written statement, however, he chose not to step into the
witness box. In our opinion, this supports the case of the
appellants that no contrary evidence in favour of truck driver
is on record. Further the cleaner of the truck who lodged the
FIR was eye witness to the accident, who stated that the
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
accident occurred as the driver of the truck lost control over
the steering. Considering the aforestated facts and evidence
particularly, the statement of complainant, who was eye
witness to the accident, coupled with the fact that driver had
not entered into the witness box, in our opinion, the Tribunal
is in error in holding that the driver of the motorcycle (the
deceased) was negligent to the extent of 20% for occurrence of
the accident. The observation by the tribunal that, the driver
of the motorcycle was in hurry to reach to the railway station
to catch a train, in our opinion, is not supported by any
evidence. Therefore, the driver of Truck No. RJ 04 GA 0637,
in our opinion was sole negligent for the accident occurred on
30.8.2010 and to that extent the judgement and award of the
tribunal is erroneous. We, therefore, allow the appeal of the
appellants on this ground.
11. In relation to compensation, the Tribunal assessed the
income of the deceased at Rs.19,455/- p.m. based on the
salary certificate after deducting income tax as well as the
professional tax. Thus, his net salary would come to
Rs.17,440/- p.m.; which in our opinion the Tribunal has
correctly assessed. As the deceased was 38 years of age at the
time of accident, in view of decision of Pranay Sethi & Ors.
(supra) 50% would be entitled towards future prospective
income. 1/4th is to be deducted towards personal expenses as
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
deceased was survived by 05 dependents instead of 1/3rd.
Considering the age 38 years, multiplier of 15 would be
applicable. Thus, the claimants would be entitled for
dependency loss as under:
"Rs.17,440 + Rs.8720 (50% prospective income) = Rs.26,160 -
Rs.6540 (1/4th Personal expenses) = Rs.19,620 x12 (p.a.) = Rs.
2,35,440 x 15 (multiplier) = Rs.35,31,600/-"
12. In view of decision of Hon'ble Supreme Court in the case
of Magma General Insurance Company Limited (supra) and
Somwati and Ors. (supra), as the deceased was survived by 05
dependents, the claimants would be entitled for Rs.40,000/-
each towards consortium, which would come to Rs.2,00,000/-.
Further in view of decision in the case of Pranay Sethi & Ors.
(supra) the claimants would be entitled to Rs.15,000/- towards
loss of estate and Rs.15,000/- towards funeral expenses.
13. Thus, the claimants would be entitled to total
compensation as under:
Dependency Loss Rs.35,31,600/-
Consortium Rs.2,00,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.37,61,600/-
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
Thus, the claimant would be entitled to total
compensation of Rs.37,61,600/-.
14. For the reasons aforestated, following order is passed.
O R D E R
(i) Appeal of the original claimants is partly allowed.
(ii) The appellants - original claimants would be
entitled to total compensation of Rs.37,61,600/-. As the
Tribunal has awarded an amount of Rs.25,31,360/-, the
respondent - Insurance Company shall deposit the balance
amount of compensation of Rs.12,30,240/- (Rs.37,61,600 -
Rs.25,31,360) with 6% interest p.a. and proportionate
costs from the date of filing of the claim petition till its
realization with the Tribunal within a period of eight
weeks from the receipt of the order.
(iii) The original claimants are entitled for the
compensation and the same shall be disbursed to the
original claimants through RTGS, after due verification.
The rest of the judgment and award passed by the learned
Tribunal shall remained unaltered.
C/FA/1845/2011 JUDGMENT DATED: 18/10/2022
(iv) 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.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
