Gujarat High Court
Maniben W/O Harsurbhai Naranbhai ... vs Gujarat State Road Transport ... on 4 October, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/3313/2011 JUDGMENT DATED: 04/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3313 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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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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MANIBEN W/O HARSURBHAI NARANBHAI VADHIYA & 4 other(s)
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 04/10/2023
ORAL JUDGMENT
1. This appeal is filed under section 173 of the Motor Vehicles Act,
1988, by the original claimants, assailing the judgement and award
dated 15.05.2010, in claim petition No.290 of 2004, by which the
Claim Tribunal at Amreli was pleased to dismiss the claim petition
on the ground that the deceased Harsurbhai had not died due to
sustaining of the vehicular accidental injuries.
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2. On 22.04.2004, the deceased Harsur Naranbhai met with an
accident. The luna moped upon which the deceased riding was
allegedly hit by the S.T.Bus, owned by respondent herein, as a
result of which, the deceased sustained spinal injury. The deceased
was taken to local hospital at Amreli and, thereafter, he was
referred to higher centre at Rajkot. Due to his critical condition, the
Rajkot Private Hospital advised to take treatment at Civil Hospital,
Ahmedabad and he admitted in the Civil Hospital at Ahmedabad
and took discharge against the medical advise, he left the hospital
and, thereafter, he succumbed to his injuries. Pursuant to his death,
the chargesheet came to be filed against the driver of the bus under
section 304A of the Indian Penal Code. In these circumstances, the
legal heirs of the deceased, i.e. the appellants herein had filed a
claim petition before the Amreli Tribunal. Vide judgement and
award dated 15.05.2010, the Claim Tribunal, on the issue of
negligence, came to a conclusion that the deceased had contributed
in the accident to the extent of 50% and the driver of the bus held
negligent to the extent of 50%. So far as amount of compensation
is concerned, the Tribunal did not grant any amount and the
reasons for dismissing the claim petition are that the claimants
failed to establish the link between the injury and cause of death.
3. Being aggrieved with the judgement and award of the dismissal of
the claim petition, the original claimants are before this Court.
4. This Court has heard learned counsel Mr. Hiren Modi and
Mr.H.M.Munshaw appearing for the respective parties.
5. Mr. Hiren Modi, assailing the judgement and award has submitted
that the judgement and award are contrary to the evidence on
record and settled principle of compensation. He submitted that the
Tribunal erred in assessing 50% contributory negligence on the
part of the deceased as, it is admitted fact that both the vehicles
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C/FA/3313/2011 JUDGMENT DATED: 04/10/2023
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were coming towards the village Sanaliya and moped was hit from
behind. In such circumstances, he submitted that the contributory
negligence assessed by the Tribunal in an arbitrary manner,
without considering the physical facts of the place of accident
mentioned in the panchnama.
6. The next contention is that there is sufficient medical evidence to
establish that due to said accident, the deceased suffered
quadriplegia and due to critical condition, he was referred to higher
centre at Ahmedabad. Thus, merely deceased to discharge against
medical evidence, does not mean that the deceased died in a natural
way. It is true that no post mortem was performed but that itself
would not raise the adverse inference that there is no live link
between the injury and death. In such circumstances, Mr.Modi,
learned counsel submitted that taking hyper-technical view,
without application of mind, to the facts and evidence on record,
the tribunal, has dismissed the petition, which deserves to be
modified.
7. On the other hand, countering the submissions learned counsel Mr.
Munshaw submitted that if the deceased could not have taken
discharge from the hospital, then, he might have been treated by
the expert and would not have died. Thus, therefore, it was the
deceased who took discharge against the medical advise, which
factors weighed with the Tribunal while deciding the issue of
nexus between the injuries and death.
8. Having heard the learned counsel for the respective parties, the
point arise for the determination is as to whether the findings
recorded by the Tribunal on the issue of negligence as well as non-
establishment of nexus between the injuries and death are required
to be interfered with.
9. So far as issue of negligence is concerned, the factum of criminal
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prosecution and evidence thereof are not in dispute. The driver of
the S.T. Bus in his deposition Exh.39 has stated that the deceased
suddenly came on the road, as a result of which, the luna was hit
from behind. The facts of the FIR disclosed by the conductor of the
bus also supported the oral evidence of the driver. In such
circumstances, it emerges that the road was State road and the
driver was having knowledge that the luna moped going ahead of
the bus and despite of this fact, he could not control his vehicle.
Thus, therefore, the contributory negligence on the part of the
deceased is on higher side and it could be assessed 25% and
accordingly, the issue of negligence modified to the effect that the
deceased himself had contributed to the said accident upto 25%,
whereas the bus driver held negligent to the extent of 75% and this
proportionate the issue of negligence is answered accordingly.
10.The learned Tribunal, after considering the oral as well as
documentary evidence, came to the conclusion that the claimants
failed to establish the nexus between the injuries and death. The
learned Tribunal overlooked the oral evidence of Dr.Shilpa Yadav,
Medical Officer, Civil Hospital, Ahmedabad. She has categorically
stated that the deceased suffered quadriplegia and his condition
was critical. It is not in dispute that on 22.04.2004, i.e. on the day
of the accident, the deceased was initially, taken to local hospital at
Amreli and then, referred to Rajkot at the private hospital, where
he stayed upto 30.04.2004 and then, was referred again at Civil
Hospital, Ahmedabad for further treatment and on 02.05.2004, he
took discharge against the medical advise and died thereafter. In
such circumstances, the sequence of events as above, shows that
deceased sustained a grievous injury arising out of the accident and
his condition was critical. Thus, the medical evidence, more
particularly, evidence of Dr. Shilpa would clearly establish that on
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account of sustaining of the said injuries, he died. The learned
Tribunal has noted that in absence of P.M. Report, it would be
difficult for the claimants to establish the nexus between the
injuries and death. These findings are too technical and
unsustainable so far nature of claim proceedings are concerned.
The only inference that would arise that the injury of quadriplegia
accelerates the death directly, which has resulted into death.
11.For the reasons recorded, it is established and proved that the
deceased died on account of sustaining of the aforesaid accidental
injuries. The deceased died at the age of 50 years and he was an
agriculturist and he was earning Rs.70,000/- to Rs.80,000/- per
annum. The facts remains that till date, the appellants are farming
the said land and, therefore, the maximum loss can be assessed is
the supervisory loss and, therefore, in absence of evidence on the
aspect of income and considering Rs.3000/- income, the
supervisory loss can be determined at Rs.1500/-. In order to
determine the amount under the dependency loss, the prospective
income would be Rs.1500+375=1875 and after deducting ¼ -470,
the net loss comes to Rs.1405/-x12, yearly it would be Rs.16,860
and applying multiplier of 13, the total amount comes to
Rs.2,19,180/-. In addition to that under the head of conventional
amount, Rs.70,000/- is awarded. So far treatment charges are
concerned, nothing is brought on record to show the actual
expenses spent on treatment. Thus, Rs.20,000/- is awarded on the
said head. In all, the appellants, are entitled to get
Rs.2,31,885( Rs.3,09,180/- - Rs.77,295/- - 25% contributory
negligence).
12.For the reasons recorded the appeal is allowed. The claim petition
No.108 of 1998, is partly allowed. The respondents are directed to
pay the amount of Rs.2,31,885/- jointly or severally with running
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interest at the rate of 6% from the date of claim petition to the
appellants herein. The learned Tribunal, shall disburse 60% of the
amount with interest to the widow, and remaining be disbursed
equally amongst the other heirs. There shall be no order of FDR.
Decree be drawn accordingly.
(ILESH J. VORA,J)
SUDHIR
