Surekhaben Wd/O Pravinchandra ... vs Mukesh Ranchhodbhai Patel
2023 Latest Caselaw 8172 Guj

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      C/FA/3384/2013                                   JUDGMENT DATED: 09/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3384 of 2013

                                    With
                       R/CROSS OBJECTION NO. 10 of 2014
                                     In
                        R/FIRST APPEAL NO. 3384 of 2013

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1      Whether Reporters of Local Papers may be allowed to                   YES
       see the judgment ?

2      To be referred to the Reporter or not ?                               YES

3      Whether their Lordships wish to see the fair copy of the              NO
       judgment ?

4      Whether this case involves a substantial question of law              NO
       as to the interpretation of the Constitution of India or any
       order made thereunder ?

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       SUREKHABEN WD/O PRAVINCHANDRA KACHHIYA & 3 other(s)
                            Versus
             MUKESH RANCHHODBHAI PATEL & 1 other(s)
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Appearance:
MS MITA S PANCHAL(530) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 2
MS HINA DESAI(1023) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                 Date : 09/11/2023

                                ORAL JUDGMENT

1] This appeal has been filed by the appellants-original claimants

against the respondents-original opponents under Section 173 of the

Motor Vehicles Act, ( 'The Act', for short) against the judgment and

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award passed by learned Motor Accident Claims Tribunal (Aux.)

Panchmahals @ Godhara in Motor Accident Claim Petition No. 1573

of 1999 on 7th January, 2013. The Cross objections have been filed

by the original respondent No. 2-Gujarat State Road Transport

Corporation against the original claimants and the original opponent

No.1-driver of ST Bus No. GJ-18-V-3573. The parties are hereinafter

referred to as the claimants and the opponents as they stood in the

original petition for the sake of convenience, clarity and brevity.

2] The brief facts that emerge from the record of the case are as

under:-

2.1] That on 24th May, 1999, Parbatsinh @ Pravinchandra

Kachhiya was going as a pillion rider with his friend on a scooter and

the scooter was being driven by his friend Shankarbhai slowly and on

the left side of the road and while they were crossing the board of

village Mehloliya, on the Lunawada-Santrampur road, ST bus No.

GJ-18-V-3573 came from Lunawada side in a rash and negligent

manner and dashed the behind portion of the scooter, as a result of

which, Pravinbhai Kachhiya fell down and sustained serious injuries.

That he was immediately taken to the Civil Hospital, Godhara where

he succumbed to his injuries during treatment. The offence was

registered at Lunawada Police Station being I-C.R.No. 85 of 1999.

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2.2]              The claimants, who are the widow and minor children of

the deceased have filed the claim petition being Motor Accident

Claim Petition No. 1573 of 1999 mainly stating that they were fully

dependent upon deceased and they have lost their sole earning

members. That at the time of accident, the deceased was 45 years

old and he was doing his own business of small savings and lottery

and they have lost their bread-earner and have claimed an amount of

Rs.9,06,000/- from all opponents jointly and severally under all

available heads.

3] The notices were duly served to the opponents but the

opponent No. 1 did not remain present whereas the opponent No. 2

ST-Corporation appeared and filed the written statement at Exh; 38

mainly denying all the contents of the claim petition and have stated

that ST Bus No. GJ-18-V-3573 is not involved in the accident and has

urged the Tribunal to dismiss the claim petition.

4] The learned Tribunal, after recording the evidence of all

parties on record, as no evidence regarding the income was

produced, considered the notional income at Rs.2000/- and

accordingly calculated loss of dependency to be Rs.3,60,000/- and

awarded an amount of Rs.2,000/- towards funeral expenses and

Rs.20,000/- towards love and affection and in all awarded an amount

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of Rs.3,82,000/- with interest at the rate of 9 % from the date of filing

of the application till realization.

5] Being aggrieved and dissatisfied with the judgment and

award passed by the learned Tribunal, the appellants-original

claimants have filed the present appeal mainly stating that the

learned Tribunal has not assessed the income of the deceased

properly and has not granted proper amount under conventional

heads. That the deceased was earning Rs.5,000/- pm and the

income considered by the learned Tribunal is on the lower side and

hence the claim of the claimants must be accordingly enhanced.

6] The opponent No.2-ST Corporation has filed cross

objections mainly stating that the driver of the scooter has not been

joined as a party to the petition and in fact there were three persons

going on the scooter and the driver of the scooter was also negligent

as three persons are not allowed to travel on a scooter. That the

learned Tribunal ought to have considered the said fact and the

driver, owner and the Insurance Company of the scooter were

required to be joined as parties to the proceedings and in the

absence of the necessary parties, the learned Tribunal has erred in

holding 100% negligence on the part of the driver of ST Corporation.

That the driver of the scooter had suddenly turned the scooter and

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dashed into the bus and he was more negligent for occurrence of the

accident. Moreover, the learned Tribunal has also erred in awarding

the multiplier of 15 when in-fact the multiplier of 14 should be applied

as per the judgment of the Hon'ble Apex Court in the case of Sarla

Verma & Ors v. Delhi Transportation Corporation & Anr, reported

in 2009 (6) SCC 121 and hence cross objections must be allowed

and the judgment and award must be modified accordingly.

7] Heard learned advocate Ms. Mita Panchal, learned

advocate for the appellants and Ms. Hina Desai, learned advocate for

the respondent No. 2. Though served, the other respondents have

not appeared.

8] From the records and proceedings of M.A.C.P. No. 1573

of 1999, it transpires that the claimant No. 1 has filed the

examination-in-chief at Exh; 36 and she has been cross examined at

length by the learned advocate for the opponent No.2-ST

Corporation. Admittedly, the claimant No. 1 is not an eye witness to

the accident and she has produced the complaint at Exh; 23,

panchnama of place of offence at Exh; 24, inquest panchnama at

Exh: 25, postmortem note at Exh; 26, the registration certificate of

Vicky Lottery Center at Exh: 27, letter of T.D.O. Lunawada at Exh: 28,

Certificate of Gujarat State Lottery Rules at Exh: 29, Certificate of

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TDO Lunawada at Exh: 30 and mark-sheet of SSC examination of

the deceased at Exh: 31. It is the say of the claimant No. 1 that the

deceased was working as a lottery agent and doing small business

and was earning Rs.5,000/- pm and she has produced the

handwritten account at Exh; 39 but beside this, no document to show

that the deceased was in fact earning Rs.5,000/- per month is

produced on record. The Certificate of Vickey Lottery Center of

Lunawada Nagar Palika produced at Exh; 27 is in the name of

Pravinchandra Kachhiya and Kaushikkumar Kachhiya and the

certificate is for the year 1987 and the certificate produced at Exh; 30

is dated 03.02.1986. There are no other documents produced on

record to show that the deceased was in fact doing such type of work

and was earning Rs.5000/- per month. On perusal of the complaint

produced at Exh: 23, the complaint has been filed by the opponent

No. 1 Mukeshbhai Ranchhodbhai Patel, who is the driver of the ST

Bus No. GJ-18-V-3573 and in the complaint he has stated that he

had left with ST Bus No. GJ-18-V-2573 from Jambusar along with the

conductor Yogesh and while the bus was at the place of accident, the

scooter was going ahead of his bus and the front bumber of the ST

Bus dashed with the scooter as a result of which the scooter fell

down and one person was injured and was taken for treatment. On

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perusal of the panchnama produced at exh: 24, the left side headlight

of the ST bus was broken as a result of the accident and the scooter

was damaged at the behind portion and the signal light of the scotter

was broken. These documents prove that the driver of the ST bus

No. GJ-18-V-3573 dashed with the scooter from behind and hence

the learned Tribunal has rightly held the driver of the ST bus 100 %

negligent for the occurrence of the accident as the opponent No. 1

had a clear vision of the scooter going in front of the bus and ought to

have blown the horn and apply the brakes but has not done so.

9] The opponent No.1 - ST Corporation has, in the cross

objections has mainly raised the issue of negligence and the learned

advocate for the ST Corporation has vehemently argued that the

driver of the scooter, owner and Insurance Company of the scooter

ought to have been made parties to the petition and the learned

Tribunal ought to have held the driver of the scooter negligent but

from the documents as also the complaint, which has been filed by

the opponent No. 1, who is the driver of the ST bus GJ-18-V-3573,

which is not on record at Exh: 23, the scooter was hit by the ST bus

from behind. That the opponent No. 1, who was driving the bus ought

to have seen the scooter in the front and ought to have applied the

brakes and driven slowly and carefully but no care and caution was

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exercised by the opponent No. 1 and the accident has occurred and

hence the arguments advanced by the learned advocate for the ST

Corporation cannot be sustained.

10] The claimants have also raised an issue of notional income

as held by the learned Tribunal and from the documents and the

impugned judgment and award, the learned Tribunal has held the

notional income of the deceased to be Rs.2000/- pm in the

absence of any documentary evidence to show that the deceased

was, in fact, earning Rs.5,000/- pm. It is not in dispute that, the

claimants have not produced any IT returns or any other document

to show the income of the deceased and in absence of any

documents and the fact that the accident has occurred on 24" May,

1999, the notional income as held by the learned Tribunal at

Rs.2000/- pm is just and proper. Admittedly, the deceased was 45

years on the date of accident, and as per the judgment of Hon'ble

Supreme Court in Sarla Verma (supra), if the deceased was

between the age of 40- 50 years, 30% of his income should be

added as income prospective income and accordingly adding 30%,

the monthly income of the deceased, it would be Rs.2600/- pm.

The claimants are four dependents and ¼ amount should be

deducted for personal expenses, which is Rs.650/- per month and

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the loss of dependence would be Rs.1950/- and the annual loss of

dependency would be Rs.23400/-. As the deceased was 45 years

on the date of the accident, as per the judgment of Sarla Verma

(supra), if the deceased was between the age of 40-50 years, the

multiplier would be 14 would be applied and accordingly, the

claimants would be entitled to get an amount of Rs.3,27,600/-

towards loss of dependence. As per the judgment of the Hon'ble

Supreme Court in the case of National Insurance Company

Limited Versus Pranay Sethi and Ors, reported in (2017) 16

SCC 680, and Magma General Insurance Co. Ltd vs. Nanu

Ram @ Chuhru Ram & Ors., reported in 2018 (18) SCC 130, the

claimants are entitled to Rs.15,000/- towards funeral expenses,

Rs. 15,000/- towards loss of estate, Rs.1,60,000/- towards spousal

and parental consortium and accordingly, the claimants are entitled

to an amount of Rs.5,17,600/- as compensation. The learned

Tribunal has awarded an amount of Rs.3,82,000/- as

compensation and hence the claimants are entitled to get

enhanced amount of Rs.1,35,600/- with interest at the rate of 6%

from the date of filing of the claim petition till realization.

12] For the foregoing reasons, the appeal is allowed and the

Cross Objections is hereby rejected. The judgment and award

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passed by learned judgment and award passed by learned M.A.C.

Tribunal (Aux) Panchmahals @ Godhara in Motor Accident Claim

Petition No. 1573 of 1999 on 7th January, 2013 is hereby modified

and in addition the claimants are entitled to Rs.1,35,600/- as

enhanced amount of compensation with interest at the rate of 6%

per annum from the date of filing of the claim petition till realization.

The Insurance Company is directed to deposit the said amount as

early as possible within an outer limit of eight weeks from the date

of receipt of the certified copy of this order. After depositing the

additional amount of compensation, the same shall be disbursed in

favour of the claimants in the proportion apportioned by the

learned Tribunal through NEFT/RTGS, after proper verification.

Record and proceedings be sent back to the concerned

Tribunal forthwith. Pending civil applications, if any, shall stand

disposed of accordingly.

Sd/-

(S. V. PINTO,J) VVM