Gujarat High Court
Chmpaben Virabhai Vankar vs Meghwani Chandrakant Jamnadas on 30 January, 2025
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C/FA/2816/2012 ORDER DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2816 of 2012
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CHMPABEN VIRABHAI VANKAR & ORS.
Versus
MEGHWANI CHANDRAKANT JAMNADAS & ANR.
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Appearance:
MR MUKUND M DESAI(286) for the Appellant(s) No. 1,2,3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 30/01/2025
ORAL ORDER
1. In this appeal, learned advocate Mr.Mukund Desai has
filed withdrawal purshish and pursuant to advocate notice
issued to the claimants, they are present in Court. Learned
advocate Mr.Nishit Bhalodi submits that he has instructions to
appear for the claimants and he will file Vakalatnama in due
course before the Registry. Registry to accept the same.
2. It is submitted by learned advocate Mr.Bhalodi that
appellants - claimants would pay deficit Court fees in the appeal
within two weeks from today. In this circumstances, Registrar
(Judicial) is directed to assess deficit court fees and inform
learned advocate Mr.Bhalodi for payment of deficit of court fees.
3. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
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award dated 31.05.2012 passed by the Motor Accident Claims
Tribunal, Panchmahal at Godhra in Motor Accident Claim
Petition No.364 of 2004.
4. Heard learned advocates for the respective parties.
5. Learned advocate Mr.Bhalodi for the appellants - claimants
would assail impugned judgment and award on the ground that
learned Tribunal has taken Rs.1800/- as income of deceased
despite salary register being produced. It is submitted that
deceased - Virabhai Vankar was working as Cook in Dr.
Ambedkar Ashram Shalal, Gadh Chanchelav which was
governed by Panchmahals Pacchat Varg Sevashram Parishad -
Godhra. It is submitted that Ashram Shalal in which deceased
was working was grant in aid school. It is further submitted that
learned Tribunal was required to adopt Exh.30 which was
register showing salary of the deceased. It is submitted that
Rs.4376/- was total salary of the deceased including
emoluments and other benefits. It is submitted that learned
Tribunal adopted Rs.1800/- as income of the deceased on the
ground that widow of the deceased has accepted in her
examination that deceased was earning Rs.1800/- but in
presence of documentary evidence, admission of widow cannot
be treated as evidence more particularly when she is unaware of
court proceedings. It is further submitted that deceased was
born on 07.02.1965 and died on 24.10.2013. He was 48 years
old at the relevant time and in view of judgment of Hon'ble Apex
Court in the case of National Insurance Company Ltd. v/s.
Pranay Sethi [2017 (16) SCC 680], 25% of income is to be
considered towards future prospects. There are three claimants,
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each claimant is entitled for loss of consortium individually
Rs.48,400/- and other heads i.e. loss of estate and funeral
expenses, each Rs.18,150/- is required to be granted.
5.1. Upon above submissions, it is submitted to enhance
compensation.
6. Learned advocate Mr.Parikh for the respondent - Insurance
Company argued to submit that Exh.30 cannot be treated as
gospel truth. It is further submitted that one Mr.Ganpath has
been examined at Exh.22. In his deposition claimant has
produced documentary evidence running from Exh.24 to Exh.34.
However, in cross examination it is proved that all the papers are
prepared pursuant to summons issued by this Court. It is
further submitted that person who has been examined as
witness has to establish income of the deceased. He was not
employee of Ashram Shala in which deceased was working.
Deceased was serving but documents which appellant seeks to
rely upon for treating his income are not proved documents and
cannot be relied upon. It is further submitted that widow of
deceased therefore, accepted that deceased was earning
Rs.1800/- and that fact has rightly been discussed by learned
Tribunal. It is submitted that learned Tribunal has rightly
passed judgment and therefore, the appeal deserves no
consideration and requires to be rejected.
7. I have heard learned advocates for the parties and perused
impugned judgment and award and gone through evidence on
record. All the evidence are re-appreciated. Firstly, let refer to
oral deposition of widow of deceased. In her chief examination
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(page no.59), she has admitted that monthly salary of deceased
to be Rs.4376/- as he was working as cook in Dr. Ambedkar
Ashram Shala. She has also stated that school was managed
and administered by Panchmahals Pacchat Varg Sevashram
Parishad - Godhra. She has also stated that apart from serving
as cook in the school, deceased was also employee in
agricultural work. Learned advocate Mr.Parikh heavily relied
upon admission made by widow in cross examination, whereby,
she has admitted that deceased was earning Rs.1800/- at the
time of his death. Evidence of claimant needed to be appreciated
in touchstone that she is illiterate lady widow coming from small
village - Bodidra, District Panchmahal and perhaps she first time
entered into witness box to depose something on oath for the
purpose of claiming compensation for death of her husband.
Looking to the background of claimant - Champaben her
admission in cross examination can be treated as gospel truth.
Other evidence on record if we examine - PW-2, claimant has
examined Ganpath Baria Exh.22, at the relevant time when he
deposed before the learned Tribunal, according to his chief
examination, he was working as Clerk in Panchmahals Pacchat
Varg Sevashram Parishad - Godhra - trust which was managing
affairs of Dr. Amedkar Asharam Shala. He appeared before
learned Tribunal on summons to him by learned Tribunal. He
has placed on record some of the documentary evidence. Firstly,
certificate issued by President, Panchmahals Pacchat Varg
Sevashram Parishad - Godhra at Exh.24 indicating that salary of
deceased was Rs.4376/-. It also stated that deceased was born
on 07.02.1955. He joined Ashram on 01.06.1997 as Cook.
Another certificate indicates his salary produced at Exh.25.
Appointment of acceptance is produced at Exh.26 which shows
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that deceased was appointed as Cook in Dr. Ambedkar Asharm
Shala. Appointment letter is produced at Exh.29 which indicates
that deceased was appointed as Cook and his basic salary was
Rs.750/- in the year 1997. The claimant has also produced on
record extract of register for the September, 2003 of Dr.
Ambedkar Ashram Shala, trued copied by Head Master, The
Prakash High School, Gadh Chanchelav, Taluka Godhra,
Panchmahals. The said register shows salary of teaching and
non teaching staff; salary of teaching staff is shown in upper
part of register and salary of non teaching staff is shown in lower
part of register. Name of deceased is appearing in the list,
showing salary of September of 2023, it indicates Rs.2990/- as
basic salary, DA - Rs.1286/-, medical benefit - Rs.100/-, in total
Rs.4376/- was salary of deceased, out of which, Rs.20/- has
been deducted. Learned Tribunal discarded Exh.30 on the
ground that PW-2 cannot be treated as reliable evidence as he
was not employee of Dr. Ambedkar Ashram Shala. Learned
Tribunal issued summons to Dr. Ambedkar Ashram Shala and
employee gave deposition. He has stated that he has nothing to
show that he is employee of Trust which maintains Dr.
Ambedkar Ashram Shala and no authority which permits him to
lead evidence. While penning such finding, perhaps learned
Tribunal has lost site that learned Tribunal is deciding the issue
of preponderance of probabilities. Learned Tribunal cannot
switch over said issue in a manner evidence to be lead in
criminal matters where principle of beyond reasonable doubt is
applied. Approach of learned Tribunal must be in line of
statutory liability saddled under section 168 of MV Act. The
persons who has lost limb or life in top killer road accident to be
awarded just and fair compensation.
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8. In the case of N.K.V.Bros.Private Limited Versus
M.Karumai Ammal [1980 (3) SCC 457], the Hon'ble Apex Court
in para 3 has observed as under :-
"3. Road accidents are one of the top killers in our country,
specially when truck and bus drivers operate nocturnally.
This proverbial recklessness often persuades the Courts,
as has been observed by us earlier in other case, to draw
an initial presumption in several cases based on the
doctrine of res ipsa loquitur. Accidents Tribunals must
take special care to see that innocent victims do not suffer
and drivers and owners do not escape liability merely
because of some doubt here or some obscurity there. Save
in plain cases, culpability must be inferred from the
circumstances where it is fairly reasonable. The Court
should not succumb to niceties, technicalities and mystic
maybes. We are emphasising this aspect because we are
often distressed by transport operators getting away with it
thanks to judicial laxity, despite the fact that they do not
exercise sufficient disciplinary control over the drivers in
the matter of careful driving. The heavy economic impact of
culpable driving of public transport must bring owner and
driver to their responsibility to their "neighbour". Indeed,
the State must seriously consider no-fault liability by
legislation. A second aspect which pains us is the
inadequacy of the compensation or undue parsimony
practised by tribunals. We must remember that judicial
tribunals are State organs and Art. 41 of the Constitution
lays the jurisprudential foundation for state relief against
accidental disablement of citizens. There is no justification
for niggardliness in compensation. A third factor which is
harrowing is the enormous delay in disposal of accident
cases resulting in compensation, even if awarded, being
postponed by several years. The States must appoint
sufficient number of tribunals and the High Court should
insist upon quick disposals so that the trauma and tragedy
already sustained may not be magnified by the injustice of
delayed justice. Many States are unjustly indifferent in this
regard."
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9. 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
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."
10. In reason of above, learned Tribunal committed error in
assessing just and fair compensation. Adoption of income at
Rs.1800/- by learned Tribunal would be on wrong footing and
not sustainable. Learned Tribunal cannot obviate to statutory
evidence of income of deceased available and established by
claimant. Such evidence cannot be disturbed on the ground that
person who has called to witness box is not employee of Dr.
Ambedkar Ashram Shala. Noticeably, Dr. Ambedkar Asharam
Shala is governed and managed by Panchmahals Pacchat Varg
Sevashram Parishad - Godhra. Ganpath Baria - PW-2 was Clerk
and deposed before the Court and produced certain documents,
Exh.30 being statutory evidence to establish income of the
claimant. Another fault by learned Tribunal is that it has not
assessed compensation for loss of future prospects. Deceased
having lost life in killer road accident would, his legal heirs
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would be entitled for loss of future prospects. Deceased was 48
years old as he having born in the year 1955 and died in the
year 2013. In view of judgment of Hon'ble Apex Court in the case
of Pranay Shethi (supra), 25% of income is to be fixed as
compensation for future prospects. Rs.4376/- is fixed as
monthly salary of the deceased and 25% would be added by
calculating future prospects. Deceased survived by three
claimants, 1/3 should be deducted towards personal expenses.
The claimants are also entitled for compensation for loss of
consortium; loss of estate and funeral expenses in view of
judgment of Pranay Shethi (supra).
11. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 5,68,932/-
Rs.4376/- per month + 25 % = Rs.5470/-
and deducting 1/3, the amount would be
Rs.1823/- and applying 13 multiplier, total
amount would be Rs.
Loss of Consortium Rs.48,400/- x 3 1,45,200/-
Funeral expenses 18,150/-
Loss of estate 18,150/-
Total... 7,50,432/-
Less : Amount which is already awarded 2,07,000/-
Additional amount which is awarded 5,43,432/-
16. Therefore, I hold that the claimant is entitled to get
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the enhanced compensation of Rs.5,43,432/- with 6% 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.
12. For the reasons recorded above, the following order is
passed.
12.1 The present appeal is partly allowed.
12.2 The Insurance Company is directed to deposit the
enhanced amount Rs.5,43,432/- with 6% p.a. interest from the
date of claim petition till its realization before the concerned
Tribunal, within a period of six weeks from the date of receipt of
this order.
12.3 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 claimant, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure and after producing certificate that
appellant - claimants have deposited deficit court fees in appeal
before the High Court of Gujarat within 15 days from the date of
assessment of Court fees. If appellant - claimants fails to deposit
sufficient court fees in the High Court of Gujarat, Registry is
directed to forward note to this Court for necessary orders.
12.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
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12.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
