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FA/2229/1997 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2229 of 1997
With
CIVIL
APPLICATION No. 5854 of 1997
In
FIRST APPEAL No. 2229 of 1997
=========================================================
GSRTC
- Appellant(s)
Versus
CHAMPABEN
RAYABHAI VAGRI & 4 - Defendant(s)
=========================================================
Appearance
:
MR
DIPEN A DESAI for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/07/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Dipen Desai for the appellant ? Corporation.
2. Present
appeal is filed by the appellant ? Corporation challenging only
Rs.1,30,000/-.
3. In
the present appeal, the appellant ? Corporation has challenged the
award passed by MAC Tribunal (Main) in MACP No.363 of 1995 dated
10.12.1996. The claims Tribunal has awarded Rs.3,80,000/- with 12%
interest in favour of respondents claimants.
4. Learned
advocate Mr.Dipen Desai has raised contention that the claims
Tribunal has not given any reason of attributing the liability to
extent of 75% to the ST Bus and only 25% to the deceased. He also
submitted that no cogent evidence of income was produced by the
claimants and that Exh.22 to 29 are the copies of 7/12 abstract and a
certificate Exh.21 which has been given by Shamjibhai Harjibhai
having the income of Rs.50,000/- from his agricultural land by the
deceased. He also submitted that said Shamjibhai Harjibhai was not
examined before the claims Tribunal and therefore, such certificate
should not have to be taken into account by the claims Tribunal.
Therefore, the assessment of income is wrong, without any basis and
without any legal evidence. Therefore, the Tribunal has committed
gross error in awarding the compensation in favour of claimants.
Except that, no other submission is made by learned advocate Mr.Desai
for the appellant.
5. I
have considered the submissions made by learned advocate Mr.Desai and
also perused the award passed by the claims Tribunal. The accident
had occurred on 16.7.1995 while the deceased and his wife were going
on scooter and when they reached at Nala, Tana Road, near Sagwadi
village, at about 3.00 p.m., one ST Bus bearing No.GJ-1-Z-95 came
from Tana, which was driven by opponent No.1, in rash and negligent
manner and dashed with the scooter, wherein Raiyabhai, scooterist
received serious injuries and died on the spot. Thereafter, a
complaint has been lodged with Shihor Police Station which was
numbered as CR No.153 of 1995 against the driver of ST Bus ?
opponent No.1.
6. Before
the claims Tribunal, applicant No.1 was examined vide Exh.33 and
relevant documents were produced on record by the claimants. The
birth certificate of the deceased was produced before the claims
Tribunal vide Exh.32, the documents relating to agricultural land of
the deceased are produced vide Exh.21 and 7/12 abstract was produced
at Exh.22 to 29, the Panchnama and complaint is also produced on
record vide Exh.18 and 19 and PM Note is also produced. The Tribunal
has examined the matter on the basis of evidence and come to the
conclusion that width of the road is 11 ft. and looking to the width
of the road, the ST Bus was dashed from back side to the scooter and
due to that, deceased was fallen down in Nala and one piece from the
moped was attached to the ST Bus as mentioned in panchnama and
therefore, considering this panchanama as an evidence which was not
disputed by the Corporation, the Tribunal has come to the conclusion
while applying principle of res ipsa locuter, 75% negligence on
the part of ST driver and 25% negligence on the part of deceased has
been attributed.
7. Looking
to the panchnama, it is clear that ST Bus in 11 ft. road having at
least about more than 8 ft width of the bus and one scooter driven by
the deceased was there, naturally, it required safe driving by a
heavy vehicle when a small vehicle is going on the same road.
Therefore, that care was not taken which was the responsibility of
the ST driver, not discharging properly and there was a less
negligence on the part of deceased which was rightly assessed by the
Tribunal on the basis of panchnama and also considering one piece of
moped was attached to the ST Bus from back side which suggests that
ST bus dashed with the scooter from back side and no proper care was
taken by the ST Bus driver. Therefore, according to my opinion,
contention raised by learned advocate Mr.Desai cannot be accepted.
The Tribunal has rightly examined the matter looking to the panchnama
and also considering the principle of res ipsa locuter, therefore,
the Tribunal has not committed any error in attributing 75%
negligence of ST driver and 25% negligence of deceased. This being a
fact finding based on evidence, normally this Court cannot interfere
unless some rebuttal evidence on record before the claims Tribunal
which has been ignored by the Tribunal.
8. In
respect to the income, the contention raised by learned advocate
Mr.Desai that assessment is wrong because there is no cogent evidence
produced by claimants before the Tribunal in respect to income of the
deceased. I have considered the observations made by the Tribunal in
Para.9 of the award. According to Exh.21 certificate, 80 bigha land
was cultivated by deceased, which was owned by Shamjibhai Harjibhai
and 7/12 abstract in respect to the agricultural land of Shamjibhai
which was produced on record vide Exh.22 to 29. Considering the age
of deceased as 40 years and looking to the certificate Exh.21 which
was given by Shamjibhai, whose land was cultivated by deceased and
considering the prospective income of the deceased, Rs.4000/- has
been assessed by the Tribunal. The Tribunal has considered the
certificate which are exhibited before the Tribunal. These
certificates are not disputed by the appellant Corporation and same
were proved by evidence of the claimants. Therefore, the Tribunal
has, looking to the prospective income of the deceased, who was aged
40 years at the time of death, Rs.4000/- has been rightly assessed
which cannot be considered to be on higher side and looking to the
age of the deceased, multiplier of 5 has rightly been applied and
after deducting 25% amount for the negligence of the deceased, the
Tribunal has rightly awarded Rs.3,80,000/- in favour of respondents
claimants for 12%. Therefore, the contention raised by learned
advocate Mr.Desai cannot be accepted because it is contrary to the
record of the Tribunal. The Tribunal has rightly assessed the income
and also compensation. For that, the Tribunal has not committed any
error which requires interference by this Court. The Tribunal has
assessed the income including prospective income as Rs.4000/- means
actual monthly income is not more than Rs.4000/-. Therefore, the
Tribunal has not bifurcated two income one actual and prospective
income but, he clubbed together two income as Rs.4000/-. Therefore,
there is no error committed by the Tribunal while assessing the
income of the deceased and rightly awarded the compensation in favour
of claimants. For that, there is no error found on record. Therefore,
the contentions raised by learned advocate Mr.Desai cannot be
accepted and same are rejected. Therefore, there is no substance in
the present appeal. Accordingly, present appeal is dismissed.
9. As
the First Appeal No.2229 of 1997 is dismissed, no order is
necessitated in Civil Application No.5854 of 1997. Accordingly, Civil
Application No.5854 of 1997 is disposed of. Ad-interim relief, if
any, stands vacated.
10. The
claims Tribunal concerned is directed to disburse the amount as per
the award to the claimants.
(H.K.RATHOD,J.)
(vipul)
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