Gujarat High Court
Gujarat Road Transport ... vs Ashwinbhai Chhotabhai Suthar on 14 February, 2023
Bench: Gita Gopi
C/FA/2495/2019 ORDER DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2495 of 2019
With
R/FIRST APPEAL NO. 2496 of 2019
With
R/FIRST APPEAL NO. 2497 of 2019
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GUJARAT ROAD TRANSPORT CORPORATION
Versus
ASHWINBHAI CHHOTABHAI SUTHAR
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/02/2023
COMMON ORAL ORDER
1. The challenge in these appeals is given to the
common judgment and award passed in M.A.C.P.
Nos.321/2004, 1319/2003 and 322/2004 passed by Motor
Accident Claims Tribunal (Auxi.) Ahmedabad on
17.12.2018.
2. Mr. Munshaw, learned advocate for the
C/FA/2495/2019 ORDER DATED: 14/02/2023
appellant submitted that the order is illegal, unjust,
arbitrary, erroneous and contrary to facts on records; the
learned Tribunal has awarded the amount presuming the
per monthly income without anything on record about the
age, education and income, and permanent disability has
not been proved. He further submitted that when the age
has not been proved, application of multiplier would be
erroneous, which has laid heavy monetary burden on the
public exchequer.
3. While countering the argument and referring to
the judgment of the learned Tribunal, Advocate Mr.
Nishit Bhalodi, learned advocate for respondent no.1,
submitted that all the evidence has been rightly
appreciated by the Tribunal, and, just, appropriate and
reasonable compensation has been granted which
requires no interference of this Court.
4. The facts of the case suggests that on
05.05.2004 at about 8:45 in the morning, the claimants of
C/FA/2495/2019 ORDER DATED: 14/02/2023
M.A.C.P. No.321/2004 and M.A.C.P. No.1319/2003 and
deceased - Daxaben Aswinbhai Suthar, wife of claimant
no.1 and mother of claimant nos.2 and 3, were travelling
in a car bearing No.GJ-7-H-7717, and were passing
through Himatnagar Road; suddenly opponent no.1 - the
driver of the S.T. Bus No.GJ-18-V-7647 came in a full
speed, rashly and negligently endangering the human
lives, and it is stated that, in breach of traffic rules,
without applying the horns had dashed the Maruti Car,
which led to the accident. The injured applicants
sustained fracture injuries and injury on the head. The
applicants of M.A.C.P. No.321/2004 stated that they were
admitted in the Civil Hospital as indoor patients and they
had urged that they were for a long time bedridden and
were assisted by attendant for their daily needs of the
life, and the accident had led to permanent disability.
5. It was also urged by the claimant that he has
expended a lot on the diet and transportation, and at the
time of accident was at the age of 40 years and was
C/FA/2495/2019 ORDER DATED: 14/02/2023
earning about 3,800/- per month as driver of auto
rickshaw.
5.1 While the injured claimant of M.A.C.P.
No.1319/2003 submitted that because of accident, she
sustained fracture injury on the leg and on the ribs and
was treated as an indoor patient in the Civil Hospital,
where she underwent operation on the leg. After
discharge from the hospital, for a long period, she was
treated as an outdoor patient and had sustained
permanent disability because of accident. She had
claimed income of Rs.3,000/- per month by sewing work.
While claimants of M.A.C.P. No.322/2004, stated that
deceased Daxaben was earning Rs.3,500/- by sewing and
by cooking and lodging. They had spent and claimed
amount under pain, shock and suffering and also for post
death rituals and other expenses.
6. The learned Tribunal dealing with the case
under Section 166 of the M.V. Act, has considered the
C/FA/2495/2019 ORDER DATED: 14/02/2023
accident because of 100% negligence of S.T. Bus. The
appreciation of evidence on this aspect does not require
any re-evaluation, as the learned Tribunal has considered
the oral as well as documentary evidence, the complaint
at Exh.41, Exh.42 - Panchnama, and Exh.41, and
considering Exhibits-41 and 42, the FIR and the
panchnama, the learned Tribunal has observed that at the
time of incident, the Maruti Car bearing No.GJ-1-H-7717
was driven by Narendrabhai at his right side and at that
time, S.T. Bus bearing No. GJ-18-V-7647, was in a full
speed and because of the negligent driving and by trying
to overtake, going on the wrong side, had dashed the
Maruti Car.
6.1 The said fact has been corroborated by the
Panchnama at Exh.42. The road was shown with breadth
of 24 Feet, and as per the Panchnama, the Maruti Car
was on the corner of the road facing the western side.
While the S.T. Bus was found on the corner of the road in
the said western side, and, thus the Tribunal considering
the fact stated in the Panchnama and in the claim
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petition, has observed that the Maruti Car was going
towards Ambaji/Himatnagar, and the bus was heading
towards Ahmedabad; in spite of that, it was on the wrong
side, and thus it clearly proves that S.T. Bus after going
on the wrong side had dashed the Maruti Car. Hence,
100% negligence of driver of S.T. Bus has been
considered. At the same time, by Exh.46, the evidence of
S.T. Bus driver was noted, and after considering his
deposition and the fact stated therein, 100% negligence
of the S.T. Bus driver has been concluded. This Court
does not find any reason to interfere with the observation
on merits, which is on the basis of the appreciation of the
evidence and deposition on record.
7. The applicant of M.A.C.P. No.321/2004 is an
auto rickshaw driver, who has urged to consider his
income as Rs.3,800/-, while no evidence has been
produced. The learned Tribunal has considered his
income as Rs.3,000/- on the date of accident i.e. on
05.05.2004. At the time of the accident, his age was
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considered as 40 years, 10% disability has consented to
be considered as 6%. Thus, after applying the judgment
of Sarla Verma and Others vs. Delhi Transport
Corporation and Another, reported in AIR 2009 SC
3104, by taking 6% permanent disability, considering the
annual income as 36,000/-, the loss in the income is
shown as 2,160/- with the multiplier of 15 and the
compensation amount of Rs.32,400/- has been granted,
which this Court considers just and reasonable, and does
not require any interference with the assessment so
made. Under various other heads, the learned Tribunal
has granted the following amount:
Sr. Details Amount in Rs.
No.
1. Future loss of income 32,400
2. Actual loss of income 3,000
3. Pain, shock and suffering 6,000
4. Medical Expenses 5,000
5. Diet, transportation and Attendant 7,000
charges
Total compensation amount 53,400
C/FA/2495/2019 ORDER DATED: 14/02/2023
7.1 In total Rs.53,400/- have been granted
considering the permanent disability, loss and the
treatment undergone, which is just and proper.
8. The income assessed of the claimant of
M.A.C.P. No.1319/2003, is Rs.3,000/-, as she was doing
sewing work. The age is considered as 32 years at the
time of accident, and 9% disability, has been considered
as 5% under the consent pursis, Exhibit-37. The learned
Tribunal by applying the multiplier of 16 has considered
the loss of income as Rs.28,800/-, which is just and
proper. While under other heads by considering the
hospitalization and the aid sought and the medical
treatments, the Tribunal has granted the amount under
the various heads as under:
Sr. Details Amount in Rs.
No.
1. Future loss of income 28,800
2. Actual loss of income 3,000
3. Pain, shock and suffering 5,000
4. Medical Expenses 5,000
5. Diet, transportation and Attendant 7,000
charges
C/FA/2495/2019 ORDER DATED: 14/02/2023
Total compensation amount 48,800
8.1 Thus, in total Rs.48,800/- has been granted,
which is just and proper.
9. The claimants of M.A.C.P. No.322/2004 have
stated that deceased Daxaben was earning Rs.3,500/-
from sewing and cooking work. The evidence could not be
produced on record; however, the learned Tribunal has
considered the income of deceased as Rs.3,000/- per
month. The age of the deceased was noted, by way of
postmortem report, as 32 years at the time of accident,
and 1/3rd deduction i.e. Rs.1,000/- has been made towards
personal expense, and thus monthly income is considered
as Rs.2,000/-. The learned Tribunal thus relying on the
case of National Insurance Company Ltd. v. Pranay
Sethi and Ors., reported in AIR 2017 SC 5157, has
observed that since the deceased was earning income
from cooking, 40% prospective rise has been given in the
income; and thus, after the deduction, considering
Rs.2,000/-, 40% rise has been given, which came to
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Rs.8,00/-. Hence, total income of per month has been
considered as Rs.2,800/-. Taking into consideration
the age, following Sarla Verma and Others vs. Delhi
Transport Corporation and Another (supra), the multiplier
of 16 had been applied; thus, in total Rs.5,37,600/- has
been granted under loss of dependency (2,800 x 12 x 16).
The amount under conventional head had been granted
and the total compensation is as under:
Sr. Details Amount in Rs.
No.
1. Future loss of income 5,37,600
2. Loss of consortium 40,000
3. Love and Affection 15,000
4. Funeral Expenses 15,000
Total compensation amount 48,800
9.1 This Court does not find any reason to interfere
with the judgment and compensation assessed, which has
been granted with 8% interest.
10. Thus, in view of the above, there is no ground
for interfering in the judgment and award passed in
C/FA/2495/2019 ORDER DATED: 14/02/2023
M.A.C.P. Nos.321/2004, 1319/2003 and 322/2004 by
Motor Accident Claims Tribunal (Auxi.) Ahmedabad on
17.12.2018. Hence, all the appeals stand dismissed. No
order as to costs. Record and Proceedings, if any, be sent
back to the concerned Court forthwith.
(GITA GOPI,J)
Pankaj
