Gujarat High Court
Gujarat State Road Transport ... vs Mohanlal Shedu Varma on 11 June, 2024
NEUTRAL CITATION
C/FA/3305/2007 ORDER DATED: 11/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3305 of 2007
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
MOHANLAL SHEDU VARMA & ORS.
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1 - Corporation
MR. JENIL M SHAH(7840) for the Defendant(s) No. 1 - Claimant No.1
MR MEHUL H RATHOD(701) for the Defendant(s) No. 3 - Driver of ST Bus
NOTICE SERVED for the Defendant(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/06/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of
Motor Vehicles Act, 1988, is preferred by the appellant -
corporation (original opponent No.2), being aggrieved and
dissatisfied with the impugned judgment and award
dated 22.07.2005 passed by the Motor Accident Claims
Tribunal (Fast Tract Court No.2), in Motor Accident
Claim Petition No.267 of 1994, by which the Tribunal
has awarded compensation of Rs.4,90,500/- with interest
to the claimant, holding the opponent Nos.1 and 2 i.e.
driver and corporation liable, jointly and severally. The
present appellant is original defendant No.2 (corporation),
present respondent No.1 is original appellant (claimant),
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and present respondent No.2 is original defendant No.1
(driver).
2. Brief facts of the case are as under:
2.1. The claimant No.1 is the father, claimant No.2 is
the mother of the deceased. The deceased, Chandresh
Mohanlal Varma, aged 25, has lost his life in a
vehicular accident, which had taken place on 04.11.1993
at 23.45 hours, opposite from Fun and Food Hotel of
Gandhidham on Gandhidham-Adipur Road. It is the case
of the claimants that the deceased was Rickshaw
Operator and he used to reside with appellants at
Gandhidham. On the day of accident, the deceased was
going from Gandhidham City to the resident of his
friend situated near Oslo Cinema in Rickshaw bearing
Registration No.GTY-9103. The said rickshaw was being
driven by driver Sarad Kumar. When the said rickshaw
reached near the place of accident, at that time,
opponent No.1, during the course of his employment with
opponent No.2, came driving the S.T.Bus No.GJ-1-Z-2547,
rashly and negligently. He lost control over the steering
the vehicle, the S.T.bus went on the wrong side of the
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road and dashed with the rickshaw of the deceased. The
said rickshaw was sandwitched, as a result of which, the
deceased, sustained serious injuries and succumbed to
those juries. Thus, the claimants have claimed
Rs.5,00,000=00, and the Tribunal has awarded
compensation of Rs.4,90,500/- with interest to the
claimant, holding the opponent Nos.1 and 2 i.e. driver
and corporation liable, jointly and severally. Hence, the
present appeal has been preferred.
2.2. Notices were served to the opponents. Opponent
Nos.1 and 2 have appeared through their learned
advocates and filed their written statement at Exh.26.
Opponent No.3 - insurance company has appearing
through his learned advocate, but has not filed his
written statement. The opponents have disputed all the
averments made by the claimant in the claim petition.
2.3. The Tribunal has framed the issues at Exh.34. The
oral as well as documentary evidence were led by the
rival parties before the Tribunal. After considering the
various documentary as well as oral evidence and
submissions made at the bar, the Tribunal has allowed
the claim petition by awarding compensation as noted
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above.
2.4. Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
appeal has been preferred by the appellant - corporation
(original opponent No.2) before this Court.
3. Heard learned advocates appearing for the respective
parties.
4.1. Learned advocate Mr. Rituraj M. Meena for the
appellant - ST Corporation has submitted that the
Tribunal has committed error in passing the impugned
order. He has submitted that the Tribunal has erred by
relying on two witness (Exhibit 61 and Exhibit 62)
where, in fact, both the witnesses are one and the same
person. Furthermore, he has submitted that the learned
Judge has erred by not taking into consideration the
statement of the bus driver and no cogent reasons has
been assigned for doing the same, instead the statement
of sole eyewitness to the accident, which was taken into
consideration. Furthermore, he has submitted that the
learned Judge failed to appreciate that even as per
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records, the auto rickshaw was on side road, and the
bus was on main road, hence, the aspect of heavy
vehicle taking more precaution is concerned and due care
was taken by bus driver. Furthermore, he has submitted
that the learned Judge failed to appreciate that in spite
of all the care taken by the bus driver the accident was
caused due to negligent driving of rickshaw driver.
Furthermore, he has submitted that the learned Judge
has committed error while considering the monthly
income of the deceased, which is without any statistics
on concrete proof. The learned tribunal has assumed the
deceased as a rickshaw operator, without any title
documents. Furthermore, he has submitted that the
Tribunal has error in considering the prospective income
of the deceased Rs.3,900/-, which is on higher side.
Moreover, no proof or evidence was shown that in future
there was a possibility of earning more by the claimant.
Furthermore, he has submitted that the learned Judge
has erred by giving exorbitant rate of interest instead of
giving 7.5% p.a as per law laid down by the Hon'ble
Apex Court in the cases reported in 2005 (6) SCC 236
and 2005 (10) SCC 720.
4.2. Learned advocate for the appellant has submitted
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that the Tribunal has committed error in considering the
aspect of negligence as well as income of the deceased of
Rs.2,600/- as there is no evidence. He has submitted that
the accident has occurred on 04.11.1993, and as per the
minimum wages prevailed in the year 1993, Rs.1,000/-
for the skilled and Rs.900/- for unskilled person is
required to be considerd. Furthermore, he has submitted
that amount towards future loss of income is required to
be considered on various aspects; like dependency. In the
present case, the claimants are father and mother of the
deceased. Hence, as per the judgment of the Hon'ble
Apex Court in the case of Sarla Verma & Ors. Vs. Delhi
Transport Corporation & Anr. reported in (2009) 6 SCC
121, 1/2 is required to be deducted, and the Tribunal
has deduced 1/3, which was wrongly considered. The age
of the deceased as per the driving licence is 25 years.
The Tribunal has considered the prospective income to
the extent 50%, which ought to have been considered to
the extent 40%, as the deceased was self employed
person and as per the judgment of the Hon'ble Apex
Court in the case of Pranay Shethi (supra), to the extent
40% is required to be added. Hence, the monthly income
of the deceased ought to have been concerned Rs.700/- by
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the Tribunal and consequently, it comes to Rs.8,400/-
annually. After applying the multiplier of 17, it comes to
58,500/-. The Tribunal has wrongly considered Rs.20,000/-
towards loss of estate, which ought to have been
considered Rs.15,000/-. The Tribunal ought to have
considered loss of consortium amount of Rs.80,000/- for
two dependents, which is not considered by the Tribunal.
Furthermore, he has submitted that the Tribunal has
awarded Rs.2,500/- towards funeral expenses, which ought
to have been considered Rs.15,000/- as per the judgment
of the Hon'ble Apex Court in the case of National
Insurance Company Limited versus Pranay Shethi
reported in (2017) 16 SCC 680. Hence, total amount
comes to Rs.1,68,000/-. Instead of that, the Tribunal has
awarded amount of Rs.4,90,500/-, which is on the higher
side. Furthermore, he has submitted that even otherwise
the judgment passed by the learned tribunal is
erroneous, illegal, unjust and contrary to provisions of
law, and therefore, the impugned judgment and award
passed by the Tribunal against the insurance company is
erroneous and required to be interfered with by quashing
and setting aside the impugned order.
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5. Per contra, learned advocate Mr. Jenil M. Shah for
the respondent No.1 (original claimant - father of the
deceased) and learned advocate Mr. Mehul H. Rathod for
the defendant No.3 - driver of the deceased have jointly
submitted that the impugned judgment and order passed
by the Tribunal is just and proper, as the Tribunal has
considered all the aspects and passed the impugned
judgment and award after considering the material
available on the record. They have submitted that the
appeal filed by the appellant is misconceived and the
Tribunal has given cogent and convincing reasons, while
awarding the amount of compensation, and there is no
error committed by the Tribunal. On the contrary, the
amount awarded by the Tribunal is required to be
enhance in view of the various judgments of the Hon'ble
Apex Court and, therefore, the present appeal is required
to be dismissed, which would meet the ends of justice.
5.1. I have considered the submissions made by the
rival parties. I have perused the record and proceedings
of the Tribunal. I have gone through the impugned
judgment and award passed by the Tribunal.
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5.2. It is noteworthy to mention that the provisions of
the Motor Vehicles Act, 1988 which gives paramount
importance to the concept of 'just and fair' compensation.
It is a beneficial legislation which has been framed with
the object of providing relief to the victims or their
families. Section 168 of the Motor Vehicles Act deals
with the concept of 'just compensation' which ought to be
determined on the foundation of fairness, reasonableness
and equitability. Although such determination can never
be arithmetically exact or perfect, an endeavor should be
made by the Court to award just and fair compensation
irrespective of the amount claimed by the claimants.
5.3. It transpires that the findings given by the
Tribunal on the aspect of negligence is found just and
proper, as from the F.I.R. and Panchnama, as well as
from the deposition of the eyewitness, who was going on
scooter, it is clearly established that the driver of the
S.T Bus is solely negligent. From the Panchnam, it
clearly found that headlight of left hand portion of the
S.T. Bus is damaged and the rickshaw is found back-
wheel of the bus. Therefore, it shows that bus was going
in very high speed. Furthermore, regarding the aspect of
income, which is as per the submission of learned
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advocate for the appellant, ought to have been considered
Rs.1,000/-, as per the minimum wages prevailed in the
year 1993. In the present case, the Tribunal has
considered that there is certificate issued by employer,
wherein it was mentioned that deceased was earning
Rs.4,500/- per month at the time of accident. The father
of the deceased was also examined, and he has also
supported the aspect about income that deceased of
earning Rs.4,500/- from the business of rickshaw
operator. Income certificate is also produced at Exh.50,
which is issued by one Shri Madhukant J. Shah,
Municipal Councilor, Gandhidham Nagarpalika. Merely
because of books of account, etc. are not produced and
the person, who has issued the certificate was not
examined, does not discard the say of the claimant that
the claimant was earning substantial amount. Therefore,
the Tribunal, after considering the material available on
the record, has come to the conclusion that monthly
income of Rs.4,500/- as per certificate is not required to
be interfered with, but the Tribunal has considered
Rs.2,600/- as monthly income of the deceased considering
the nature of the job, which is rightly considered by the
Tribunal. I found that the guess work is permissible in
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certain cases, more particularly, the said case is based
on some documentary as well as oral evidence. Hence,
the contention, raised by learned advocate for the
appellant that Rs.1,000/- should be considered as monthly
income as minimum wages prevailed in the year 1993, is
not required to be accepted, more particularly, when
there is some evidence available on the record, and such
provision is not required to be applied. Otherwise also,
there is no hard and fast rule that while considering the
income of the deceased, that the wages prevailed in that
year is required to be accepted, even there is some
material available on the record of the case about the
income of the deceased. Hence, the contention raised by
learned advocate for the appellant is not required to be
accepted.
5.4. Hence, considering the income of the deceased
Rs.2,600/- and adding to the extent 40% towards
prospective income, it come to Rs.3,640/-, and after
deducting dependency to the extent 1/2, it comes to
Rs.1,820/- per month towards further loss of income.
After applying multiplier of 12 (annually), and multiplier
of 18, the future loss of income comes to Rs.3,97,440/-,
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in place of Rs.4,68,000/-, which is awarded by the
Tribunal. The Tribunal has awarded Rs.20,000/- towards
loss of estate, which ought to have been awarded
Rs.15,000/- as per the judgment of the Hon'ble Apex
Court in the case of (i) Pranay Shethi (supra), (ii) New
India Assurance Co. Ltd. v. Somwati and others, reported
in 2020 (9) SCC 644. The Tribunal has awarded
Rs.2,500/-, which ought to have been awarded Rs.15,000,
as per the judgment of the Hon'ble Apex Court in the
case of (i) Pranay Shethi (supra), (ii) New India
Assurance Co. Ltd. v. Somwati and others, reported in
2020 (9) SCC 644. Most relevant aspect is that the
Tribunal has not awarded any amount towards loss of
consortium; there are only parents (father and mother)
dependent, and Rs.40,000/- is required to be awarded to
each, which comes to Rs.5,07,440/-, instead of
Rs.4,90,500/- which is awarded by the Tribunal. Hence,
the amount is required to be enhanced to the tune of
Rs.16,940/-, but in the present case, the claimants have
not preferred any cross-objection. Therefore, without
disturbing the amount of Rs.4,90,500/- as awarded by the
Tribunal, the present appeal filed by the appellant -
Corporation is required to be rejected. In view of above,
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this appeal is required to be dismissed.
6. For the reasons recorded above, the following order is
passed.
6.1 The present appeal is dismissed, with no order as to
costs.
6.2 The Tribunal is directed to disburse the entire
amount, which is lying in the FDR and/or with the
Tribunal, along with accrued interest thereon if any, to
the claimant(s), by account payee cheque, after proper
verification and after following due procedure.
6.3 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
