Gujarat High Court
Rameshchandra Vadilal Sheth vs Bhavinkumar Hareshkumar Jayswal on 13 January, 2025
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C/FA/2615/2010 CAV JUDGMENT DATED: 13/01/2025
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Reserved On : 02/01/2025
Pronounced On : 13/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2615 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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RAMESHCHANDRA VADILAL SHETH & ORS.
Versus
BHAVINKUMAR HARESHKUMAR JAYSWAL & ANR.
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Appearance:
MR NV SOLANKI(860) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, has been preferred by the appellants -
original claimants, being aggrieved and dissatisfied with the
judgment and award dated 16.03.2010 passed by the Motor
Accident Claims Tribunal, Surendranagar in Motor Accident
Claim Petition No.57 of 2000.
2. Brief facts of the case are as under:
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2.1 On ill fated day of 22.12.1999, deceased Rameshchandra
and one Manojbhai were going on motorbike to Village Mahudi
for darshan and when they reached near place of accident,
luxury bus came in rash and negligent manner from opposite
side and dashed with motorbike, as a result, deceased
Rameshchandra having received fatal injuries died on the spot.
2.2 FIR of incident was registered before the concerned Police
Station.
2.3. The claimant filed claim petition under section 166 of MV
Act being MACP No.57 of 2000 claiming compensation of
Rs.15,00,000/- along with interest jointly and severally from the
opponents.
2.4. After appreciating evidence on record, learned Tribunal was
pleased to pass judgment and award in tune of Rs.6,98,000/-
with 9% interest from the date of claim petition.
2.5. Being aggrieved and dissatisfied with impugned judgment
and award dated 16.03.2010, the legal heirs of deceased has
filed present appeal.
3. Learned advocate Mr. Solanki for the appellant - claimants
made two fold submissions. Firstly, he submits that learned
Tribunal in absence of evidence, erroneously, contributed 15%
negligence to deceased - Rameshchandra in causing road
accident. Taking this Court through facts of the case, he would
submit that width of road was 23 feet 8 feet. Deceased at the
relevant time was riding motorbike. Luxury bus dashed with
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motorbike, resulting into death of Rameshchandra. He would
submit that police record demonstrate that luxury bus driver
fled from the spot and persons who were on motorbike died. It is
submitted that all this indicates that driver of luxury bus was
fully negligent in causing road accident, but learned Tribunal for
no reason attributed 15% negligence to the deceased -
Rameshchandra, who was motorcycle driver. It is also
submitted that luxury bus driver who was served with process
did not enter to contest the proceedings or to contest claim
petition by filing written statement nor has entered into witness
box to discharge burden upon him, yet learned Tribunal
contributed 15% negligence to the deceased. Such finding is
erroneous on the face and required to be quashed and set aside.
3.1. Secondly, it is submitted by learned advocate for the
appellant / claimants that learned Tribunal though believed that
deceased was earning Rs.7405/- demonstrated from salary
certificate, it has taken Rs.4500/- to compensate monthly loss of
dependency and no compensation for loss of future prospects
has been granted. It is also argued that learned Tribunal erred
in granting compensation under loss of estate and loss of
consortium and also for funeral expense. They are on lower side.
It is submitted that such compensation is not in congruence
with judgment of Hon'ble Apex Court in the case of National
Insurance Company Ltd. v/s. Pranay Sethi [2017 (16) SCC 680],
later on explained in the case of Magma General Insurance
Company Limited v. Nanu Ram @ Chuhru Ram & Ors. [2018
(18) SCC 130] and reiterated in the case of United India
Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur
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reported in [(2021) 11 SCC 780].
3.2. Mainly, on above submissions, it is submitted to allow the
appeal and quash and set aside finding of learned Tribunal with
regard to 15% contributory negligent to the deceased and to
enhance compensation by adopting income of Rs.5000/- per
month and also to grant loss of future prospects and to
rationalize compensation under non pecuniary heads.
4. On the other hand, learned advocate Mr.Vibhuti Nanavati
for the Insurance Company to sustain impugned judgment
supports reasons assigned by the learned Tribunal and submits
that accident took place in head on collusion manner and nature
of accident is self indicative to show that deceased was also
negligent in causing road accident. It is also submitted that
learned Tribunal applied two point theory to attribute negligence
on the part of driver of offending vehicles. It is submitted that
learned Tribunal believed that luxury bus was on full speed and
it is bigger vehicle but deceased was negligent to some extent in
causing road accident. It is submitted that considering all this
aspects, learned Tribunal has not committed any error in
assessing 15% negligence to the deceased Rameshchandra in
causing road accident.
4.1. It is submitted by learned advocate Mr.Nanavati for the
Insurance Company that learned Tribunal while adopting
monthly income of Rs.4500/- of the deceased to compensate loss
of dependency referred to factor that deceased was serving with
private employer as Machine Operator in technical division
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having no permanent continuous source of income. It is
submitted that there is not need to interfere with such findings.
Therefore, it is submitted to assess compensation as judgment of
Hon'ble Apex Court in the case of Pranay Sheti (supra).
5. Having heard learned advocates for the parties and paying
anxious consideration to the rival submissions as well as
minutely appreciating evidence on record, noticeably, driver of
the offending vehicle though served with process of claim
petition did not chose to contest claim petition by entering into
defence or by filing written statement. Further, he did not enter
appear in witness box nor Insurance Company has examined
him by adopting any procedure available under law. Insurance
company ought to have examined driver to discharge burden of
disproving assertion of negligence in causing road accident not
only made in the pleadings but also in the chief examination of
claimant (Exh.31 PW-1 - claimant). Perusing cross examination
of the witness, it is missing necessary suggestion / question
which help Insurance Company to earmark negligence on the
part of the deceased - Rameshchandra in causing road accident.
6. In the case of ICICI Lombard General Insurance Co. Ltd. v/
s. Rajani Sahoo & Ors. [ 2025 Law Live SC 9], Hon'ble Apex
Court after referring Mangla Ram v. Oriental Insurance Co. Ltd.
and Ors. [2018 (5) SCC 656] held that documents collected by
the police during investigation in motor accident case can be
relied to decide the issue of negligence. In para 8 and 9, it is held
as under :-
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"8. It is true that the Tribunal had looked into the oral and
documentary evidence including the FIR, final report and
such other documents prepared by the police in connection
with the accident in question. The Tribunal had also taken
note of the fact that based on the final report, the driver of
the offending truck was tried and found guilty for rash and
negligent driving. The High Court took note of such aspects
and found no illegality in the procedure adopted by the
Tribunal and consequently dismissed the appeal. In the
contextual situation it is relevant to refer to a decision of
this Court in Mathew Alexander v. Mohammed Shafi &
Anr., this Court held thus:-
"12....A holistic view of the evidence has to be taken into
consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof
beyond reasonable doubt cannot be applied while
considering the petition seeking compensation on account
of death or injury in a road traffic accident. To the same
effect is the observation made by this Court in Dulcina
Fernandes vs. Joaquim Xavier Cruz, (2013) 10 SCC 646
which has referred to the aforesaid judgment in Bimla
Devi."
9. Thus, there can be no dispute with respect to the
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position that the question regarding negligence which is
essential for passing an award in a motor vehicle accident
claim should be considered based on the evidence available
before the Tribunal. If the police records are available
before the Tribunal, taking note of the purpose of the Act it
cannot be said that looking into such documents for the
aforesaid purpose is impermissible or inadmissible."
7. In the present case, FIR (Exh.35) undoubtedly is filed
against luxury bus driver, which is given by Arjanbhai. He is
third party. He was standing near the place of accident. He has
been examined by claimant as PW-3 at Exh.64. He has
supported his submission made in the FIR. Learned advocate
Mr.Nanavati for the Insurance Company submitted that
according cross examination, this witness was in temple at the
time of accident and came to spot of accident having heard noise
from road accident and therefore, he cannot be treated to be eye
witness. The submission of learned advocate Mr.Nanavati fails
to substantiate on the ground that he is first person who has
seen road accident and he has supported FIR, which is never
challenged by Insurance Company. The temple in which witness
came to offer darshan at the time road accident was barely 200
feet from the spot of accident. This distance cannot be treated
long to say that he was not eye witness of road accident and
therefore, his deposition is reliable and admissible and can be
taken to decide issue of negligence. Panchnama recorded post
accident is produced at Exh.36. Learned Tribunal has referred
panchnama and discussed same in its judgment in para 12,
which reads as under :-
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"12.On careful reading of panchnama, it would appear that
the accident had occurred of the road. Width of the road 16
23 almost in middle and 8 inch. and Wheel marks of
dragging vehicle is found extended upto 11 ft. to south...
from the corner of the road which goes north If this reading
of panchnama then it would be clear ould be clear that
strictl vehicles were is correct. that strictly speaking both
the not on their correct side perhaps both the vehicles were
slightly away from corner of the road from their respective
side. Two points lead us to believe substantial negligence
on the part of luxury bus. One full speed of luxury bus and
second, luxury bus being fairly bigger vehicle, compared
other vehicle, involved in the accident. reasonable to
believe more negligence on the luxury bus. As to It is part
of to former point as to full speed of luxury bus, facts
support this view, is driver of the luxury bus fled away on
occurrence of the accident had it been otherwise, then the
driver would have proceeded to lodge complaint. Secondly,
after scooter hooked with the bus, the bus had dragged
scooter the road and and dragging of the vehicle had
caused on marks on the road that stretches upto few feets.
This cannot happen except driver fails to stop the bus. is
reasonable to presume that bus driver must It have noticed
from reasonable distance that scooter is coming from the
opposite direction. Upon noticing the oncoming scooter
from that moment, he would have (...or ought to have) tried
to slower down the pace of the bus, so much so that if the
accident is not possible to avoid totally on occurrence of
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the after Tow seconds same the controlable motion of the
bus would have enabled him to stop moment. In short the
bus at that and in other words, dragging of scooter in
absence of speed, would not have occurred. On this basis
the infer. "
8. Perusal of above discussion, it appears that learned
Tribunal has thoroughly examined panchanama on record and
also believed that luxury bus being bigger vehicle was plying at
excessive speed in the middle of road having width of 23 feet and
8 inch and also believed that driver of luxury bus fled from the
spot left two persons in dreadful and dying condition, where, one
of them lost his life on the spot. Noticeably, learned Tribunal also
observed that scooter was hooked with the bus and it dragged
scooter for long. It is also observed that this cannot happen
except driver fails to stop the bus. Reasonable presumption was
also applied by the learned Tribunal that driver of luxury bus
must have noticed from reasonable distance that scooter is
coming from opposite direction. Learned Tribunal also believed
that driver of luxury bus ought to have tried to slow down the
speed of the bus, so that accident could be avoided. Having
noted all this aspects, learned Tribunal in para 13 of the
impugned judgment went to hold contributory negligent of 15%
to the deceased for no reasons.
9. In the case of Smt. K.Anusha v/s. Regional Manager,
Shriram General Insurance Co. Ltd. in Civil Appeal No.6237 of
2021, the Hon'ble Apex Court in para 13, it is held as under :-
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"13. Therefore, the entire reasoning of the High Court on
Issue No.1 is riddled with inherent contradictions. To
establish contributory negligence, some act or omission,
which materially contributed to the accident or the
damage, should be attributed to the person against whom
it is alleged. In Pramodkumar Rasikbhai Jhaveri
vs. Karmasey Kunvargi Tak and Others this Court quoted
a decision of the High Court of Australia in Astley v.
Austrust Ltd. to hold that "...where, by his negligence, one
party places another in a situation of danger, which
compels that other to act quickly in order to extricate
himself, it does not amount to contributory negligence, if
that other acts in a way which, with the benefit of
hindsight is shown not to have been the best way out of
the difficulty". In fact, the statement of law in Swadling v.
Cooper, that "...the mere failure to avoid the collision by
taking some extraordinary precaution, does not in
itself constitute negligence...", was also quoted with
approval by this Court. Therefore, we are compelled to
reverse the finding of the Tribunal and the High Court on
the question of contributory negligence."
10. Undoubtedly, driver of luxury bus as stated herein above
did not enter into witness box. Adverse inference is required to
be drawn against him.
11. In Ishwarbhai C. Patel v/s. Harihar Behera [1999 (3) SCC
457], the Hon'ble Apex Court in para 17 held as under :-
"17.Admittedly defendant No.1 had an account in the
Central Bank of India Limited, Sambalpur Branch which
his father, namely, respondent No.2, was authorised to
operate. It is also an admitted fact that it was from this
account that the amount was advanced to the appellant by
respondent No.2. It has been given out in the statement of
respondent No.2 that when the appellant had approached
him for a loan of Rs.7,000/-, he had explicitly told him that
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he had no money to lend whereupon the appellant had
himself suggested to advance the loan from the account of
respondent No.1 and it was on his suggestion that the
respondent No.2 issued the cheque to the appellant which
the appellant, admittedly, encashed. This fact has not been
controverted by the appellant who did not enter the
witness box to make a statement on oath denying the
statement of defendant (respondent) No.2 that it was at his
instance that respondent No.2 had advanced the amount
of Rs. 7,000/- to the appellant by issuing a cheque on the
account of defendant (respondent) No.1. Having not
entered into the witness box and having not presented
himself for cross-examination, an adverse presumption has
to be drawn against him on the basis of principles
contained in illustration (g) of Section 114 of the Evidence
Act."
12. Needless to state that claimant has established their case
on applying preponderance of probability that on ill fated day,
deceased Ramchandran has left his life on account of rash and
negligent driving of driver of luxury bus and principle of
standard of proof beyond reasonable doubt cannot be applied
while considering the petition under section 166 of MV Act
seeking compensation of amount on account of death or injury
in the road accident.
13. Hon'ble Apex Court in the case of Mathew Alexander v.
Mohammed Shafi & Anr. [2023 (13) SCC 510] held thus:-
"12....A holistic view of the evidence has to be taken into
consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
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claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof
beyond reasonable doubt cannot be applied while
considering the petition seeking compensation on account
of death or injury in a road traffic accident. To the same
effect is the observation made by this Court in Dulcina
Fernandes vs. Joaquim Xavier Cruz, (2013) 10
SCC 646 which has referred to the aforesaid judgment in
Bimla Devi."
14. On perusal of above evidence on record, more particularly,
evidence of PW-3 and documents collected during police
statement and taking holistic view of the evidence produced by
claimant and appreciating it on touchstone of preponderance of
probabilities, according to this Court, learned Tribunal
committed error in contributing 15% negligence to the deceased
in causing road accident. Finding of learned Tribunal
contributing 15% negligence to the deceased is based on no
evidence. Therefore, such finding is unjustified and deserves to
be quashed and set aside. Accordingly, it is set aside.
15. This takes the Court to decide second issue, whether
quantum of compensation assessed by learned Tribunal is just,
fair and adequate.
16. Apt to note that the Motor Vehicle Act, 1988 is a beneficial
piece of Legislation. The concept of just and fair compensation is
integral and seminal to the MV Act. The compensation to be
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awarded under the principle of just and fair compensation to the
injured of the road accident or the legal representative/s of the
deceased person is based on the principle of fairness,
reasonableness and equability. Anguish of the heart or for
mental turbulence being consequential result of the road
accident cannot be actually compensated, but the quint
essentiality lies in adopting holistic and pragmatic view to the
computation of the compensation for the loss sustained, which is
to be in the realm of realistic approximation. Although exact or
perfect arithmetical calculation of compensation for reparation of
the loss arrived from the road accident is almost impossible. The
Tribunal is bestowed with duty to make an endevour to award
just compensation regardless of the amount claimed by the
claimant. The determination of the quantum of compensation
therefore, must be liberal and not niggardly since the law values
life and limb in a free country in generous scale. Needless to
state that money may be awarded, so that something tangible
may be procured to reach something else of the like nature,
which has been destroyed or lost, but money cannot renew
physical frame that has been battered and shattered being a
result of the road accident. Yet Tribunal to endavour to bring
back victim to stage of pre-road accident as far as possible
Thus, the award must be reasonable and cannot be assessed
with moderation though it cannot at the same time be pity and
what could be granted must be just, fair and equitable
compensation.
17. The deceased at the time of accident was serving in
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company known as Interface Ltd which was formerly known as
Gujarat Drugs and Chemicals Ltd. The deceased was serving as
Machine Operator in technical division of company. The learned
Tribunal believed that claimant succeed in proving income of
deceased to Rs.6000/-. Documentary evidence also establish
this aspect and having believed that income of the deceased
would be Rs.6000/-, learned Tribunal for no reason, taken up
Rs.4500/- per month as loss of dependency. This error deserves
to be rectified. Accordingly, I adopt Rs.6000/- per month as
income of the deceased to compute loss of dependency. In view
of Exh.90 - school leaving certificate, date of birth of deceased
was 19.09.1955. Thus, it is proved that deceased was 44 years
at the time of accident, which attracts multiplier of 14 in view of
judgment of Hon'ble Apex Court in the case of Pranay Sethi
(supra).
18. Learned advocate Mr.Solanki fairly accepted that deceased
has no permanent source of income. In view of such aspect, loss
of future prospects can be assessed by enhancing 40% rise in
income. As deceased is survived by widow and three children,
1/4 income of the deceased is to be deducted towards personal
and pocket expenses. So far as non pecuniary heads are
concerned, in view of judgment of Pranay Shethi (supra), Magma
General Insurance Company Limited (supra) and Satinder Kaur
(supra) widow would be entitled to get Rs.48,400/- towards loss
of spousal consortium, each of three children will get
compensation of Rs.48,400/- towards loss of parental
consortium as they have lost their father. Under the head of loss
of estate and funeral expenses, Rs.18,150/- each is granted.
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19. Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 10,58,400/-
Rs.6000/- per month + 40% rise = Rs.8400/-
and deducting 1/4 (Rs.2100/-) = Rs.6300/-,
and applying 14 multiplier, the total amount
would be Rs.10,58,500/- (Rs.6300/- x 12 x
Consortium Rs.48400/- x 4 1,93,600/-
Funeral expenses. 18,150/-
Loss of estate 18,150/-
Total... 12,88,300/-
Less: compensation to be awarded by 6,98,000/-
Tribunal
Additional amount which is awarded 5,90,300/-
20. Therefore, I hold that the claimants are entitled to get the
enhanced compensation of Rs.5,90,300/- with 9% p.a. interest
from the date of filing the claim petition till its realisation, which
would meet the ends of justice. Rest of the direction(s) of the
Tribunal remain same.
21. For the reasons recorded above, the following order is
passed.
21.1 The present appeal is partly allowed in aforesaid terms.
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21.2 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of six weeks from the date of receipt of this order.
22.3 The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimants, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
22.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
22.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
