Chapla.
6 Medical Bills of Rs.32,591.26/-. 28, 29 & 38
deceased.
vii. Opponent No.1/Respondent No.1 had not led any
oral or produced any documentary evidence
before the learned Tribunal, however, the
respondent no.2-Insurance Company has led the
following oral as well as documentary evidences
in support of its contentions.
Sr. No. Description of Documents Exhibit
No.
in-Chief of Vajashibhai Ramdebhai
Odedara,.
Honda Motorcycle bearing
Registration No.GJ-1-BL-258.
viii. Having considered the oral as well as
documentary evidences and considering the
submissions of the learned counsels for the
parties, the learned Tribunal determined the total
compensation at Rs.5,55,600/-, and thereafter
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deducted 35% on account of the contributory
negligence of the driver of the motorcycle on
which the deceased was travelling, accordingly
awarded a sum of Rs.3,61,140/- along with
interest at the rate of 9% per annum from the
date of filing of the Claim Petition till its
realization, as compensation.
ix. Being aggrieved and dissatisfied with the
impugned judgment and award, the
claimants/appellants herein, have preferred the
captioned appeal challenging the findings
returned by the learned Tribunal on the Issue
No.1 of Negligence, as well as the quantum of
compensation awarded by the learned Tribunal.
3. Heard learned counsels for the parties.
4. Mr. Aditya D Davda, learned counsel appearing for the
appellants/original claimants vehemently submitted that the
learned Tribunal has committed grave error in returning the
findings on the Issue No.1 of Negligence. He contended that
the accident had occurred owing to the sole negligence of the
respondent No.1 - driver of the Hero Honda Motorcycle
bearing Registration No. GJ-1-BL-258. He further submitted
that the appellant no.1 filed the affidavit in examination-in-
chief at Exh. 23 and stepped into the witness-box and proved
the negligence of the respondent no.1. He further submitted
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that the appellants have also examined the rider of the
motorcycle (Bajaj Discover motorcycle bearing Registration
No. GJ-11-SS-3478) on which the deceased was travelling at
the time of accident, and in his deposition he pointed out that
at the time of the accident he was driving the motorcycle at a
moderate speed and on the correct side of the road, however,
the respondent no.1 came at a high speed in a rash and
negligent manner and hit the motorcycle of the deceased and
caused the accident. He further contended that appellants
have also examined the independent witness, viz.,
Mr.Kiranbhai Ramjibhai Chapla at Exh.36, who was the eye-
witness of the accident. He proved that the accident occurred
owing to the sole negligence of respondent no.1. He further
submitted that, in addition to the oral evidences on record,
there were sufficient documentary evidences, on record to
prove the negligence of respondent no. 1, such as the F.I.R,
panchnama of the place of accident, and the charge-sheet. He
further submitted that after investigation, the prosecution
agency had filed charge-sheet against respondent no.1,
therefore, in light of the oral as well as documentary
evidences on record, the learned Tribunal has committed
grave error in fastening 35% negligence on the part of the
rider of the motorcycle on which the deceased was travelling
as pillion rider. He further submitted that the Issue No.1 of
negligence has to be decided by the learned Tribunal on the
touchstone of preponderance of probability and the strict
rules of evidence is not applicable. He further submitted that
in the facts and circumstances of the case and considering the
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oral as well as documentary evidences led by the
claimants/appellants herein, the findings returned by the
learned Tribunal under Issue No.1 of negligence is perverse
and the same deserves to be reversed.
5. Ld. Counsel for the claimants/appellants herein further
submitted that the learned Tribunal had failed to appreciate
that at the time of the accident, the deceased was working as
an agricultural laborer, earning a sum of Rs.5,500 to
Rs.6,000/- per month. However, the learned Tribunal has
determined the notional monthly income of the deceased at
Rs.3,000/- per month, which is much lesser than the minimum
wages prevalent at the relevant point of time for such an
unskilled worker. He further contended that in the absence of
any proof of income on record, the learned Tribunal ought to
have ascertained the notional income of the deceased on the
basis of the minimum wages prevalent at the relevant point of
time for such an unskilled worker, which was Rs.4,500/- as
per the Notification issued by the State Government of
Gujarat. However, the learned Tribunal has determined the
income of the deceased at Rs.3,000/- per month. He further
contended that the learned Tribunal has committed serious
error in awarding compensation of Rs.90,000/- under the head
of Loss of love and affection & Loss of Estate. He further
contended that the learned Tribunal has not awarded any
compensation under the head of loss of consortium though the
deceased had left behind three legal representatives, viz., his
father, mother and minor-child (claimants/appellants herein),
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therefore, compensation under the head of loss of consortium
ought to have been awarded to all the legal representatives of
the deceased. Therefore, the judgment and award is required
to be modified to that extent.
6. On the other hand, Mr. Tanmay Karia, learned counsel
appearing on behalf of the respondent No.2-Insurance
Company vehemently submitted that there is no infirmity in
the impugned judgment and award and contended that the
instant appeal deserves to be dismissed. He further submitted
that the learned Tribunal has rightly decided the Issue No.1 of
negligence and rightly determined the contributory
negligence of the deceased to the extent of 35%. He further
submitted that the Insurance Company has examined the rider
of the motorcycle and proved before the learned Tribunal that
the accident had occurred owing to the sole negligence of the
driver of the motorcycle on which the deceased was travelling.
Therefore, contended that there is no infirmity in the findings
returned by the learned Tribunal on the Issue No.1 of
Negligence. He further submitted that, so far as the
quantum of compensation awarded by the learned Tribunal is
concerned, the same has been rightly determined by the
learned Tribunal, and therefore, the present appeal is devoid
of any merit and is liable to be dismissed.
7. Having considered the submissions of the learned
counsels for the parties and having gone through the material
available on record, it is to be noted that the accident took
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place on 06.02.2012 between 05:00 to 05:30 pm, as two
motorcycles dashed in the middle of the road. The appellants
have examined Mr. Dalpatbhai @ Dilipbhai Ghanabhai
Chorwad (PW-1), Mr. Kiritbhai Lakhabhai Vadher (PW-2) and
Mr. Kiranbhai Ramjibhai Chapla (PW-3) at Exhs. 23 ,35 & 36
respectively. So far as Mr. Dalpatbhai @ Dilipbhai Ghanabhai
Chorwad (PW-1) is concerned, he was not an eye-witness to
the accident, therefore, his deposition on the point of
negligence is of no consequence. However, Mr. Kiritbhai
Lakhabhai Vadher (PW-2) was the rider of the motorcycle on
which the deceased was travelling at the time of the accident.
In his deposition, he clearly stated that the accident has
occurred owing to the sole negligence of respondent no.1
herein. However, Mr. Kiranbhai Ramjibhai Chapla (PW-3),
who was an independent witness and also the eye-witness to
the accident deposed at Exh.36 that at the time of the
accident, rider of the motorcycle on which the deceased was
travelling as a pillion rider was being driven at very moderate
speed, however, the respondent no.1 came with his
motorcycle at excessive speed in a rash and negligent manner
and hit the motorcycle on which the deceased was travelling.
He also stated that the accident occurred owing to the sole
negligence of respondent no.1. Further, it is to be that the
respondent no.1 had also entered into the witness-box and he
shifted the burden upon the rider of the motorcycle on which
the deceased was travelling, but, at the same time, it is to be
noted that after investigation, the prosecution agency has
filed the charge-sheet against the respondent no.1. It is not on
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record that the respondent no.1 has raised any concern or
lodged any complaint that he has been falsely implicated in
the crime of vehicular accident. Thus, having regard to the
facts and circumstances and overall appreciation of both oral
as well as documentary evidences on record, it can be held
that the accident took place owing to the sole negligence of
respondent no.1, therefore, the findings returned by the
learned Tribunal on the Issue No.1 of negligence is not
sustainable in the light of the evidences available on record.
Therefore, the findings returned by the learned Tribunal on
the point of negligence is required to be reversed.
Accordingly, it is held that the accident has occurred owing to
the sole negligence of respondent no.1.
8. So far as the quantum is concerned, it is not in dispute
that at the time of the accident, the deceased was aged about
26 years, and was engaged as an agricultural laborer and he
was survived by three dependents/legal representatives. It is
pleaded that at the time of the accident, the deceased was
earning Rs.5,500/- to Rs.6,000/- per month, however, the
income of the deceased was not proved before the learned
Tribunal by leading any documentary evidences. The learned
Tribunal has determined the income of the deceased at the
time of accident as Rs.3,000/- per month, which is much
lesser than the minimum wages for such an unskilled worker
at the relevant point of time, as notified by the State
Government of Gujarat. It is to be noted that at t he time of
accident, i.e. on 06.02.2012, the rate of minimum wages for
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such an unskilled worker as per the Notification issued by the
State of Gujarat was Rs.4,500/- per month. Therefore, in the
absence of any Proof of Income, the learned Tribunal could
have ascertained the income of the deceased at the rate of
minimum wages prevalent at the relevant point of time.
Therefore, the notional income of the deceased at the time of
accident is determined as Rs.4,500/- per month.
9. Further, it is not in dispute that at the time of accident,
the deceased was aged about 26 years, therefore, in the light
of ratio of the judgment rendered by the Hon'ble Apex Court
in the case of National Insurance Company Ltd. Vs.
Pranay Sethi reported in 2017 (16) SCC 680, the notional
monthly income of the deceased is further enhanced by 40%
on account of the prospective income of the deceased.
Therefore, after adding 40% to the notional monthly income of
the deceased, the monthly income of the deceased would
come to the tune of Rs.6,300/- (i.e. Rs.4,500/- + 40% of
Rs.4,500/-) per month.
10. Further, the deceased had left behind three legal
representatives, therefore, 1/3rd of the annual income is to
deducted on account of personal expenses of deceased in
accordance with the law laid down in the judgment of Sarla
Verma and others Vs. Delhi Transport Corporation
reported in 2009 AIR (SC) 3104. Therefore, after deducting
1/3rd of the monthly income on account of the personal
expenses, the notional monthly income for the purpose of
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calculating the future loss of income would come to Rs.4,200/-
(i.e. Rs.6300 - 1/3rd of Rs.6,300) per month.
11. It is not in dispute that at the time of the accident, the
deceased was aged about 26 years. Therefore, in view of the
ratio of the judgment rendered by the Hon'ble Apex Court in
the case of Sarla Verma (supra), the multiplier of "17" is
required to be applied, which has been rightly applied by the
learned Tribunal. Thus, in view of the above discussion, the
future loss of income would come to the tune of Rs.8,56,800/-
(i.e., Rs.4,200/- X multiplier of "17" X 12).
12. Further, the learned Tribunal has not awarded any
amount of compensation under the head of loss of consortium.
However, the learned Tribunal has awarded a sum of
Rs.90,000/- under the head of Loss of love and affection. The
deceased left behind three legal representatives, therefore,
each legal representative shall be entitled for the loss of
consortium. Therefore, a sum of Rs.1,45,200/- (i.e., Rs.48,400
X 3) is awarded under the head of loss of consortium.
13. The learned Tribunal has awarded Rs.25,000/- under the
head of funeral expenses and Rs.32,600/- under the head of
medical expenses. This Court finds no infirmity in the
findings of the learned Tribunal in that respect; therefore, the
same are maintained and not required to be interfered with.
14. Further, the learned Tribunal has not awarded any
compensation under the head of Loss of estate, therefore, a
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sum of Rs.18,150/- is awarded under the head of loss of
estate.
15. Therefore, in view the above discussions, the claimants/
appellants herein shall be entitled for the following amount of
compensation:-
Sr. Head Amount
No. (in rupees.)
1. Future loss of Income 8,56,800/-
2. Loss of Consortium (+) 1,45,200/-
(Rs.48,400*3)
3. Loss of Estate (+) 18,150/-
4. Funeral Expenses (+) 25,000/-
5. Medical Expenses (+) 32,600/-
6. Total Compensation 10,77,750/-
7. Compensation awarded by
Impugned Judgment and (-) 3,61,140/-
Award dated 05.05.2016.
8. Enhanced amount of 7,16,610/-
compensation.
16. The learned Tribunal vide its impugned judgment and
award dated 05.05.2016 has awarded a compensation of
Rs.3,61,140/- along with interest at the rate of 9% per annum.
Therefore, in view of the above discussions, the appellants
herein shall be entitled to an additional amount of
compensation of Rs.7,16,610/- (Rupees Seven Lakhs Sixteen
Thousand Six Hundred Ten Only). The learned Tribunal has
awarded the interest at the rate of 9% per annum. The said
rate of interest is maintained and therefore, the appellants
herein are entitled to the same rate of interest on the
additional amount of compensation from the date of filing of
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the Claim Petition till its realization.
17. In view of the above discussions, the impugned judgment
and award is modified to the aforesaid extent and accordingly,
the captioned appeal stands disposed of.
18. Respondent No.2-Insurance Company is directed to
deposit the additional amount of compensation along with
interest at the rate of 9% per annum from the date of filing
the Claim Petition till realization, within a period of six weeks
from today with the learned Tribunal concerned. On
depositing the said amount, the learned Tribunal shall
disburse the entire amount to the appellants/original
claimants, after due verification, and after deducting Court
fee, if any, as per Rules.
19. If any amount is lying deposited in the caption appeal
with the Registry of this Court, the same may be transmitted
to the learned Tribunal concerned. Records and Proceedings,
if any, be sent to the concerned learned Tribunal. No order as
to costs.
20. Pending application, if any, stands disposed of,
accordingly.
(MOOL CHAND TYAGI, J)
ARUN
