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FA/1702/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1702 of 2011
With
CIVIL
APPLICATION No. 6343 of 2011
In
FIRST APPEAL No. 1702 of 2011
=========================================================
BAJAJ
ALLIANZ GENERAL INSURANCE CO LTD - Appellant(s)
Versus
PRAJAPATI
SHANKARBHAI RAMABHAI & 1 - Defendant(s)
=========================================================
Appearance :
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None for Defendant(s) : 1 - 2, 2.2.1, 2.2.2,
2.2.3,2.2.4
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 27/06/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
present appeal arises against the judgment and award passed by the
Tribunal in MACP No. 849 of 2008 whereby the Tribunal has awarded
compensation at Rs.6,24,000/- with interest @ 7.5% p.m.
2. The
relevant facts are that on 7.10.2008 at Noon when deceased
Kamleshkumar was going on his Scooter being Scooter No.GJ1-BR-5456,
and when the said scooter reached near main Road of village Board,
nearby Ranchhodpura, one Maruti Car ALTO GJ-09-AG-2052 dashed with
the Scooter and the deceased sustained injuries and, thereafter, he
succumbed to the injuries which gave rise to the claim petition being
MACP No. 849 of 2008 for Rs.25 lacs. The Tribunal ultimately passed
an award as observed earlier. Under the circumstances, the present
appeal before this Court.
3. We
have heard the learned Counsel Mr. Nanavati for the appellant and
have considered the reasons recorded by the learned Tribunal in the
impugned judgment and also considered the documentary evidence,
panchnama and depositions of the witnesses which have been made
available and relied upon by the learned Counsel for the appellant.
4. The
first contention raised by the learned Counsel for the appellant is
on the aspect of contributory negligence. It is submitted that in
view of the fact that the Scooter had dashed on the side of the Car
in a heavy traffic area nearby four roads, it was a case of
negligence on both the sides equally and, therefore, the Tribunal has
erroneously attributed negligence of 70% on the driver of the Maruti
Car which was insured with the appellant insurance company and,
therefore, this Court may also consider this aspect in appeal.
5. The
examination of the said contention shows that in the
cross-examination of the driver it has come on record that he was
driving the Car with a speed of 50 to 60 kms. per hour speed. It has
also come on record that it was a single track road with heavy
traffic of the public since it was a day of Navratri Aatham. Under
these circumstances, if the driver of Maruti Car was driving the
vehicle with a speed of 50 to 60 kms. per hour the contributory
negligence considered by the Tribunal to the extent of 70% viz. 20%
more, than equal, could not be said to be perverse exercise of
discretion on the part of the Tribunal. Therefore, it cannot be said
that any error has been committed which may call for interference in
the present appeal. Hence, this contention cannot be accepted.
6. It
was next contended by the learned Counsel for the appellant that the
appeal on the aspect of quantum with prospective income considered by
the Tribunal is erroneous in as much as when the cattles as well as
the agricultural land have continued with the other family members
who were also helping the deceased in agricultural work, the Tribunal
ought not to have attributed the prospective income. It was submitted
that there was no material evidence of prospective income or reliable
material for the future income and, therefore, the Tribunal had
committed an error on the said aspect.
7. The
examination of the said contention shows that the income of the
deceased considered by the Tribunal from the milk and the
agricultural income is total Rs.27,000/-, whereas the salary
certificate of income produced was Rs.24,000/-. As against the claim
of the income of milk to the extent of Rs.48,000/-, the Tribunal has
accepted the claim of Rs.10,000/- per year only. Similarly in the
agricultural income also as against the claim of Rs.72,000/- the
Tribunal has accepted the income of Rs.17,000/- per year for the
agricultural income. When the said aspect is considered with the
fixed income of salary from the bore/tube well, the application of
the principle of prospective income of the deceased could not be said
as perverse exercise of powers on the part of the Tribunal since the
deceased was also a person having salaried income and in view of the
said background, the prospective increase in the income even for sale
of the milk and that the agricultural income could not be said as
none. Once the prospects are found by the Tribunal the future
income, the application of principles of the prospective income
cannot be said to be erroneous hence, the said contention deserves to
be dismissed.
8. No
other contention is raised.
9.
Hence, the appeal is meritless and deserves to be dismissed and is
hereby dismissed.
CIVIL
APPLICATION No. 6343 of 2011.
In
view of the order passed in the First Appeal the Civil Application
does not survive.
Sd/-
(Jayant
Patel, J.)
Sd/-
(R.M.
Chhaya, J.)
M.M.BHATT
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