Gujarat High Court
Ahmedabad Municipal Corporation vs Pratapsinh Dahyabhai Limbad on 30 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1279/2012 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1279 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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AHMEDABAD MUNICIPAL CORPORATION
Versus
PRATAPSINH DAHYABHAI LIMBAD & ORS.
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Appearance:
MRS KALPANA K RAVAL(1046) for the Appellant(s) No. 1
MR AJAY R MEHTA(453) for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 30/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Heard Mrs. Kalpana K. Raval, learned advocate for
the appellant and Mr. Ajay R. Mehta, learned advocate for
the respondents at length. Perused the record.
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2. The brief facts of the case are as under:
2.1. On 15.10.2003 at about 8.45 am, Kirtibhai
Pratapsinh Limbad, aged about 19 years driving his motor
cycle bearing registration No.GJ-13-J-8431 was proceeding
towards BJ Medical College on the left hand side of the
road and at a moderate speed. When he crossed Jay Hind
Cross Road to proceed towards Maninagar Cross Road,
driver, a Scrap Vehicle bearing registration No.GQE-8239
driven by an employee of opponent No.1 - Ahmedabad
Municipal Corporation came at an excessive speed and
dashed the motor cycle from behind. Resultantly, Kirtibhai
Pratapsinh Limbad sustained serious injuries and
succumbed during the treatment. Respondents - original
claimants being legal heirs of deceased i.e. claimant Nos.1
and 2 are the parents and claimant Nos.3 and 4 are
siblings of deceased filed M.A.C.P. No.1236 of 2003 under
Section 166 of the Motor Vehicles Act, 1988 for a
compensation of Rs.50,00,000/- before the learned Motor
Accident Claims Tribunal No.22, Ahmedabad City,
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Ahmedabad.
2.2. Notice of the claim petition was served to the
opponent - present appellant, who filed Written Statement
at Exh.46 and prayed for dismissal of the claim petition.
Learned Tribunal framed issues at Exh.14. Claimant No.1 -
Pratapsinh Dahyabhai Limbad - father of deceased
deposed at Exh.16. On behalf of the Corporation - driver
Yakubbhai Mustafabhai Shaikh deposed at Exh.84.
2.3. After considering oral as well as documentary
evidence, learned Tribunal vide its judgment and award
dated 31.1.2012 partly allowed the claim petition and
awarded Rs.30,50,000/- in favour of the claimants with
interest @ 9% p.a. from the date of petition till its
realization. Being aggrieved and dissatisfied with the
impugned judgment and award, the appellant -
Ahmedabad Municipal Corporation is before this Court.
3. Learned advocate for the appellant submitted that
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the alleged accident has taken place because the
deceased at the time of accident tried to overtake the
vehicle in full speed and in the said process, the bike hit
on the front wheel of the vehicle which has occasioned the
accident. It is further pointed out by learned advocate for
the appellant that the driver of the offending scrap vehicle
has deposed at Exh.84. It is also the case of learned
advocate for the appellant that in the oral deposition of
the driver of the offending scrap vehicle, nothing converse
could be elicited by the claimants.
4. It is further submitted that learned Tribunal has failed
to appreciate the oral deposition of the driver. In the
background of the aforesaid fact, the deceased is required
to be held 50% responsible for the accident. The income
which has been assessed by the learned Tribunal is
erroneous and without any substance.
5. It is further submitted that claimant No.1 who
happens to be the father of deceased cannot be said to be
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a dependent. It is not established by claimant No.1 that he
was dependent upon the income of the deceased. The
claimant Nos.3 and 4, as per the say of the claimants, are
the siblings of deceased and were minors at the relevant
point of time. The income which has been arrived at by
the learned Tribunal @ Rs,14,000/- per month and the
calculation of compensation based on such income is
erroneous in absence of any material. As per the case of
claimants deceased was studying 1 st year of MBBS. The
other calculations for calculating compensation are
exorbitant and without any evidence.
6. Per contra, learned advocate Mr. Ajay Mehta for the
respondents - original claimants supported the judgment
and award and submitted that the learned Tribunal has
considered the oral deposition of the driver of the scrap
vehicle and has come to the conclusion that the driver of
the vehicle was sole by negligent in causing the accident.
The oral deposition of the claimant no.1 is recorded at
Exh.16 on 22.6.2005 and, thereafter, on 20.7.2005,
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Written Statement Exh.46 is filed by the opponent -
Corporation. It is not the case of Corporation in the Written
Statement that the Motor Cyclist was overtaking the scrap
vehicle at an excessive speed which has resulted into the
accident. By taking a somersault in the oral deposition,
the driver of the offending scrap vehicle came out for the
first time on 16.11.2011 that the Motor Cyclist was
competing with other vehicles which resulted into an off
balance and dashed with the scrap vehicle. This theory of
defence has been raised for the first time which is nothing
but an after thought. No such contention was raised by the
Corporation in the Written Statement and the claimant
was not confronted on this issue during the cross
examination.
7. It is further pointed out that the deceased was aged
about 19 years and was 1st year MBBS student at the
relevant point of time. To substantiate the income,
claimant has examined Dr. Smitaben N. Lalani at Exh.81
and the said witness has stated her income as Rs.91,813/-
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and has also produced her pay slip at Exh.82. After
assessing the said evidence, learned Tribunal has rightly
arrived at a conclusion that the income of the deceased
can be said to be Rs.14,000/- per month for the purpose of
calculating compensation.
8. Having considered the submissions canvassed by the
learned advocates for the respective parties and on
perusal of the Record and Proceedings, the facts which are
emerging on record are that the deceased was 19 years of
age and a student of 1st year of MBBS. On the unfortunate
day, he was dashed by the scrap vehicle owned by
Ahmedabad Municipal Corporation and driven by the
driver who is an employee of the Corporation, from behind
which resulted into the untimely death of a young boy. It
would be apposite to refer the oral deposition of the driver
which is not supported by the contentions raised in the
Written Statement. It is equally important to observe that
the Corporation remained idle in not filing the Written
Statement when the notice of a claim petition was served.
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Written Statement came to be filed by Corporation on
20.7.2005 that too after the claimant deposed on
22.6.2005 at Exh.16. When oral deposition of the driver of
the offending vehicle does not inspire any confidence and
more particularly, the driver of the offending vehicle could
not prove that the bike rider i.e. the deceased was either
solely negligent or had contributed majorly in the
occurrence of accident, we do not find any reason to
disbelieve the findings arrived at by the learned Tribunal.
However, we have observed that the learned Tribunal has
not considered the loss of love and affection as per the
settled law and has awarded a very meager amount to the
claimants. We find force in the submission of learned
advocate for the appellant that the deceased was a
Bachelor and therefore instead of 1/3rd deduction under
the head of personal and living expenses, learned Tribunal
ought to have considered ½ deduction under the head of
personal and living expenses of deceased.
9. As per the law laid down in the case of National
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Insurance Company Limited Vs. Pranay Sethi and
others reported in (2017) 16 SCC 680, 50% to be added
as prospective income of deceased and multiplier of 18
would be applicable. The claimants are 4 in number, 1/2
amount to be deducted towards personal and living
expense of deceased.
10. Taking into consideration the decision in the case of
Pranay Sethi (Supra) and in view of above discussion
and finding, it would be in the fitness of things to modify
the judgment and award passed by the learned Tribunal,
as under:-
Particulars Amount in
Rupees
Actual Salary / Income 14,000/-
Prospective Income (50%) 7,000/-
Total... 21,000/-
Deduction towards personal 10,500/-
expenses (½)
Net Monthly Income... 10,500/-
Total Monthly Income × 12 × 18 10,500×12×18
Multiplier
Loss of Dependency 22,68,000/-
Loss of Love and Affection 80,000/-
(Rs.40,000 x 2)
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Funeral Expenses 10,000/-
Medical Expenses 6,000/-
Total 23,64,000/-
Compensation already awarded 30,50,000/-
by the Tribunal
Excess Compensation 6,86,000/-
(To be refunded to the
appellant)
11. In view of above stated discussions, reasons and our
findings so recorded, the present appeal is partly allowed.
The following order is passed:
(A) The claimants would be entitled to
Rs.23,64,000/- with proportionate cost and interest @
9% per annum from the date of claim petition till its
realization.
(B) As the learned Tribunal has awarded
compensation of Rs.30,50,000/- with costs and
interest, the appellant - Ahmedabad Municipal
Corporation is entitled to get refund of Rs.6,86,000/-.
The learned Tribunal shall refund Rs.6,86,000/- to the
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appellant after following due procedure in
accordance with law.
(C) Record & Proceedings, if any, be sent back
to the concerned Tribunal, forthwith.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
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