Gujarat High Court
Municipal Commissioner vs Legal Heirs Of Jigar Arvindkumar Nayak, ... on 2 September, 2024
NEUTRAL CITATION
C/FA/3734/2009 JUDGMENT DATED: 02/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3734 of 2009
With
R/CROSS OBJECTION NO. 276 of 2009
In
R/FIRST APPEAL NO. 3734 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. 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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MUNICIPAL COMMISSIONER
Versus
LEGAL HEIRS OF JIGAR ARVINDKUMAR NAYAK, ARVINDBHAI VADILAL
& ORS.
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Appearance:
MRS KALPANA K RAVAL(1046) for the Appellant(s) No. 1
MR SANDIP C SHAH(792) for the Defendant(s) No. 1,2
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 3,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/09/2024
ORAL JUDGMENT
NEUTRAL CITATION
C/FA/3734/2009 JUDGMENT DATED: 02/09/2024
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1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, are preferred by the appellant-AMC and
the cross-objections are filed by the claimant/s, being
aggrieved and dissatisfied with the common judgment and
award dated 16.12.2008 passed by the Motor Accident Claims
Tribunal (Aux.), Court No.16, Ahmedabad in Motor Accident
Claim Petition No. 1548 of 1998, by which the Tribunal has
awarded compensation as mentioned in the impugned
judgment and award to the claimant/s, holding opponents
nos.1 and 2 liable jointly and severally.
2. Brief facts of the case are as under:
2.1 The claimants filed the claim petition stating that on
6.6.1998, at about 8.30 hours in the morning, the deceased
was going on a motorcycle no.GJ.1J.9065 driven by opponent
no.3, owned by the opponent no.4 and insured with opponent
no.5, as a pillion rider, and going to Naranpura; on the
correct side of the road and after passing the Shahibaug
underbridge, when they were passing towards Subhash bridge,
at that time, one Truck No.GTA.8911 driven by opponent
no.1 and owned by opponent no.2, came from behind, with
full speed, in a rash and negligent manner, endangering the
human life, violating the traffic rules and dashed with the
motorcyclist and due to the said impact, the deceased
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sustained fatal injuries and he died on the spot. The claim
petition was, therefore, filed for compensation.
2.2 Notices were served to the opponents. All the opponents
filed the written statements denying the contents of the claim
petition. The Tribunal has framed the issues. The oral as
well as documentary evidence were led by the rival parties
before the Tribunal. After considering the documentary as
well as oral evidence and submissions made at the bar, the
Tribunal has partly allowed the claim petition by awarding
compensation as noted above.
2.3 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
appeal is preferred and cross-objection is preferred for
enhancement.
3. Learned advocate for the appellant-AMC has assailed
the impugned judgment and award mainly on the ground of
negligence. He submitted that it is a matter of record that
the deceased was driving motorcycle and he collided with the
truck from rear portion and that the driver of the truck was
acquitted and the bike driver was supposed to take more
care and caution while overtaking the truck and the
motorcyclist was required to be held liable for contributory
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negligence at least to the tune of 70%. He submitted that
the learned Tribunal has erred in holding the truck solely
negligent for the accident and thus holding the opponent
nos.1 and 2 liable to pay the compensation and dismissing
the claim petition against opponent nos.3,4 and 5. He,
therefore, prayed to allow this appeal.
4. Learned advocate for the claimants in the cross-
objections has submitted that the awarded amount should be
enhanced as the learned Tribunal has not considered the
actual income of the deceased, though proof was produced
with regard to the same, and erred in considering the
notional income; further, the age of the deceased was
considered at 24 years but actually it was 21 years; further
the learned Tribunal has not awarded any amount under the
head of filial consortium and also erred in deducting 1/3rd
amount towards the personal expenses, which should be ½ as
the deceased was unmarried at the time of accident. He,
therefore, submitted that in view of the judgments of the
Hon'ble Apex Court in the cases of National Insurance
Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16
SCC 680; Sarla Verma V/s Delhi Transport Corporation
reported in (2009)6 SCC 121 and United India Insurance Co.
Ltd., versus Satinder Kaur @ Satwinder Kaur reported in
(2021) 11 SCC 780, the amount under the heads mentioned
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above should be enhanced. He, therefore, prayed to allow the
cross-objections.
5. Per Contra, learned advocates appearing for the
respective respondents in the appeal and cross-objections have
submitted that the appeal and cross-objections be dismissed
as the negligence and quantum awarded is just and proper
and no interference is required. Learned advocate for the
respondents-claimants in the first appeal submitted that the
compensation is required to be enhanced for which the cross-
objections are filed. He submitted that on the point of
negligence, the claimant was a pillion rider on the motorcycle
and he suffered injuries and ultimately died due to the
negligence on the part of the motorcyclist and/or truck driver
and therefore for him, it is a case of composite negligence
and therefore the claimants can claim compensation from any
of the tort feasors, as held by the Hon'ble Apex Court in the
case of Khenyei V/s New India Assurance Company Limited
reported in 2015(9) SCC 273. He, therefore, prayed to dismiss
the appeal and allow the cross-objections.
6. 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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6.1 On the point of negligence raised by the appellant-AMC,
if we peruse the evidence available on the record and the
impugned judgment, the learned Tribunal has taken into
consideration the principle of preponderance of probability, the
principle of res-ipsa-loquitor and the evidence on record
including the deposition of the driver of the motorcycle
wherein he stated almost similar facts as stated in the claim
petition and nothing fruitful with regard to the negligence
has come out from the cross-examination of the said driver of
the motorcycle, and the deposition of the driver of the truck
who has clearly admitted that he had first given side-signal
to go ahead, and when the motorcyclist had been just
crossing over the truck, at that time, he cancelled the side-
signal given to the motorcyclist and turned to drive the truck
and dashed the truck with the motorcycle from behind and
thereafter, concluded that the road on which the accident
took place was sufficient in width and if the driver of the
offending vehicle had taken slight care and caution, the
accident in question could have been avoided. The said
discussion and finding is just and proper and there is no
need of interference by this Court in this appeal. Further,
the claimant is pillion rider and therefore for him, it is a
case of composite negligence and he can claim the
compensation from any of the tortfeasors as held by the
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Hon'ble Apex Court in the case of Khenyei (supra), wherein
it is observed as under:
"22.1 In the case of composite negligence, plaintiff/claimant
is entitled to sue both or any one of the joint tort feasors
and to recover the entire compensation as liability of joint
tort feasors is joint and several.
22.2. In the case of composite negligence, apportionment of
compensation between two tort feasors vis a vis the plaintiff/
claimant is not permissible. He can recover at his option
whole damages from any of them.
22.3 In case all the joint tort feasors have been impleaded
and evidence is sufficient, it is open to the court/tribunal to
determine inter se extent of composite negligence of the
drivers. However, determination of the extent of negligence
between the joint tort feasors is only for the purpose of
their inter se liability so that one may recover the sum
from the other after making whole of payment to the
plaintiff/claimant to the extent it has satisfied the liability of
the other. In case both of them have been impleaded and
the apportionment/extent of their negligence has been
determined by the court/tribunal, in main case one joint tort
feasor can recover the amount from the other in the
execution proceedings."
6.2 Considering this settled position of law, the claimant
can claim the amount of compensation from any of the
tortfeasors. Hence, the appeal is required to be dismissed.
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6.3. On the point of quantum as prayed for in the cross-
objections, it is apparent from the impugned judgment that
the learned Tribunal has committed error in calculating the
income of the deceased at notional income though the income
tax returns are produced on the record, which is required to
be taken more for calculating the amount of compensation,
further the prospective income is required to be calculated
looking to the age of the deceased and future prospects.
Further, looking to the school leaving certificate, the age of
the deceased is 21 years and therefore the multiplier should
be applied of 18 instead of 17. Considering all these aspects,
and the ratio laid down in the judgments in the cases of
Pranay Sethi & Ors, Sarla Verma and Satinder Kaur
(supra), the claimant is entitled to compensation as per the
table given below.
6.4 Considering the same, the amount which is required to
be awarded in the cross-objections are as under:
Particulars Amount (Rs.)
Future prospective income 15,12,000/-
Rs.10,000/- and prospective income
@40% of Rs.4,000/-, it would come to
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Rs.14,000/-. Deducting 1/2 towards
personal expenses, it would come to
Rs.7,000/- per month and yearly it
would come to Rs.84,000/-and applying
multiplier of 18, the loss of dependency
would come to Rs.15,12,000/-.
Loss of consortium 96,800/-
Funeral Expenses 18,150/-
Loss of Estate 18,150/-
Total... 16,45,100/-
Amount already awarded by the 8,41,000/-
learned Tribunal
Enhanced amount 8,04,100/-
Therefore, I hold that the claimants are entitled to get
the total amount of compensation of as noted hereinabove. At
this juncture, it is required to be noted that though the
cross-objections are valued at Rs.3,59,000/- only, looking to
the aspects of the matter and the principle of just and fair
compensation, the High Court has right to award the amount
more than claimed in cases of motor accident claim petitions,
which is a benevolent legislation, in view of the judgment in
the case of Meena Devi V/s Nunu Chand Mahto @
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Nemchand Mahto reported in 2023(1) SCC 204, wherein it is
held that there is no restriction that the Tribunal/Court
cannot award compensation exceeding the amount so claimed.
Accordingly, cross-objections are required to be partly allowed.
7. For the reasons recorded above, the following order is
passed.
7.1 The present appeal is dismissed and cross-
objections are partly allowed.
7.2 The judgment and award dated 16.12.2008 passed
by the Motor Accident Claims Tribunal (Aux.), Court No.16,
Ahmedabad in Motor Accident Claim Petition No. 1548 of
1998 is modified to the extent that the claimant nos.1 and 2
do recover the sum of Rs.16,45,100/- from the opponent nos.1
and 2 jointly and severally along with the interest at the
rate of 7.5% per annum from the date of the petition till
realization with proportionate costs. Rest of the directions in
the impugned judgment remain unaltered.
7.3 The appellant-AMC is directed to deposit the
entire awarded amount including the enhanced amount, if yet
not deposited, before the concerned Tribunal, within a period
of six weeks from the date of receipt of this order.
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7.4 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal and the
amount which will be deposited by way of this order, with
accrued interest thereon if any, to the claimants, by account
payee cheque, after proper verification and after following due
procedure.
7.5 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
7.6 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
