Gujarat High Court Case Information System
Print
FA/4451/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4451 of 2008
With
CIVIL
APPLICATION No. 9501 of 2007
In
FIRST APPEAL (STAMP NUMBER) No. 232 of 2007
=========================================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
MANEKBEN
WD/O RAMANBHAI BHURIDAS PATEL & 5 - Defendant(s)
=========================================================
Appearance
:
MS
SEJAL K MANDAVIA for
Appellant(s) : 1,
None for Defendant(s) : 1, 3,5 - 6.
MR TEJAS
P SATTA for Defendant(s) : 2, 4,
MR JAYESH V PATEL for
Defendant(s) : 2,
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/09/2008
ORAL
ORDER
1. Heard
learned advocate Ms.Trusha Mehta for learned advocate Ms.Mandavia on
behalf of appellant ? ST Corporation and learned advocate Mr.Tejas
P. Satta for respondent Nos.2 and 4.
2. In
the present appeal, the appellant ? Corporation has challenged the
award passed by MAC Tribunal, Gandhinagar in MACP No.367 of 2004 (New
Number) dated 20.4.2006 Exh.43 whereby the claims Tribunal has
awarded Rs.3,41,000 with 7.5% interest in favour of respondents
claimants.
3. Learned
advocate Ms.Mehta has raised contention before this Court that 10%
negligence is established of the deceased, even though 10% deduction
is not made in the award of compensation by the claims Tribunal. She
also submitted that Rs.3,41,000/- is a compensation considering
Rs.3,06,000/- dependency loss; Rs.10,000/- towards the pain, shock
and suffering; Rs.10,000/- for love and affection and Rs.10,000/- for
loss of life and Rs.5000/- for funeral expenses and therefore, she
submitted that basic error committed by the claims Tribunal. She also
raised contention that claims Tribunal has committed gross error in
deciding 90% negligence of ST Bus driver. She also submitted that
multiplier of 15 is on higher side looking to the age of the deceased
as 38 years, particularly when income was not proved by claimants
with cogent evidence and therefore, the claims Tribunal has committed
gross error in assessing the income of the deceased. She also
submitted that claims Tribunal has not properly appreciated the
Panchnama where driver of the ST Bus not remained careless and there
was no rashness and negligent driving of the ST Bus driver at the
time when the accident occurred. She relied upon the decision of Apex
Court reported in AIR 2005 SC 4425 and AIR 2006 SC 2688 Except that,
no other contention raised by learned advocate Ms.Mehta before this
Court.
4. Learned
advocate Mr.Satta appearing on behalf of respondents claimant
supported the award passed by claims Tribunal and submitted that
claims Tribunal has rightly appreciated the evidence which were on
record and has rightly applied multiplier of 15 and has rightly
assessed the income with future prospect. For that, according to him,
the claims Tribunal has not committed any error while awarding the
compensation in favour of respondents claimants and that he is also
prepared to deduct 10% amount from total compensation awarded by
claims Tribunal as 10% negligence is established of the deceased
before the claims Tribunal.
5. I
have considered the submissions made by both the learned advocates
and also perused the award passed by claims Tribunal. The accident
occurred on 27.3.1991 where the deceased Ramanbhai was going on his
scooter to house with a moderate speed and with care and caution.
At that occasion, from opposite side, ST Bus No.GJ-1-T-9855 came with
rash and negligent manner and dashed with the front portion of the ST
Bus on wrong side to the scooter and due to that, deceased received
serious injuries and died on the spot. To some extent, the ST Bus has
dragged the scooter and that is how, the accident occurred and
deceased died on the spot. At the time of accident, deceased was aged
about 34 years and was hale and hearty and was a partner in M/s.Patel
Kantilal and brothers and also working as a Manager in Vikram
Traders. The deceased was having the agricultural land and also
earning Rs. 35,000/- to Rs.40,000/- per year. The claimants have
claimed Rs.5 lacs with 18% interest. The appellant ? Corporation
filed reply vide Exh.11 and evidence of Manekben, wd/o of deceased
was taken vide Exh.32. Thereafter, certain documents were produced by
claimants before the claims Tribunal. Vide Exh.30, receipt of payment
of advance tax of the partnership firm for the year 1988-89 is
produced. The birth date certificate also produced before the claims
Tribunal. The claims Tribunal has examined complaint vide Exh.19 and
vide Exh.20 Panchnama and vide Exh.22 ST Bus panchnama and
thereafter, considering the evidence of the claimant, the claims
Tribunal has come to the conclusion that in absence of evidence of
the ST Bus driver, while considering the complaint and panchnama, the
scooter which was driven in the middle portion of the road,
therefore, to some extent, the scooter driver is also negligent and
as the ST Bus coming from opposite side, dashed with front portion
and dragged the scooter and due to that deceased died on the spot,
therefore the claims Tribunal has come to the conclusion that ST Bus
driver is required to be held negligent to the extent of 90%.
Thereafter, the claims Tribunal has assessed the income of the
deceased and after considering the evidence on record, the claims
Tribunal has assessed Rs.1500/- and Rs.200/- from supervision in
agricultural field, Rs.1700/- has been considered as notional income
of the deceased. PM Note has been produced vide Exh.23 and looking to
the birth date of the deceased ? 1.6.1952, deceased was 38 years
old at the time of accident and therefore, the claims Tribunal has
applied multiplier of 15 and after deducting 1/3rd for
assessing the income with future prospect, Rs.1700/- comes to
dependency and total comes to Rs.3,06,000/-.
6. The
contention raised by learned advocate Ms.Mehta that multiplier of 15
is on higher side. The claims Tribunal has examined the matter in
light of the fact that it was an accident of 1991 and matter remain
pending before the claims Tribunal for more than 15 years. The
deceased was having the income which considered to be notional at
Rs.1700/- and after considering the future prospect, it comes to
Rs.5100/- and after deducting 1/3rd, it comes to
Rs.1700/-. So considering the income which was assessed by the claims
Tribunal, multiplier of 15 cannot be considered on higher side
because the income of the deceased was not more than Rs.2000/-. So
considering the income, multiplier of 15 is taking the care to have
ultimate compensation which will be invested in the bank, then
claimant may able to get a net result of interest which is almost to
the monthly income of the deceased. Looking to the total amount of
Rs.3,41,000/- after deducting 10%, it comes to Rs.3,06,900/- and if
it is invested in the bank, then claimant may able to get at least
round about Rs.2000/- as an interest which almost equal to the
salary of the deceased and that is the purpose to give compensation
to the claimants, so they may able to receive the interest which is
almost equal to salary or income of the deceased. Similar view has
been taken by this Court in a decision reported in 2006 (11) GHJ 552.
Therefore, the claims Tribunal has rightly applied multiplier of 15
taking into consideration the age of the deceased as 38 years and
also rightly assessed the dependency after considering the future
prospect of income. For that, the claims Tribunal has not committed
any error.
7. The
claims Tribunal has, considering the evidence on record, has
attributed 90% negligence to the driver of ST Bus. Looking to the
Panchnama, the scooter which was driven in the middle portion of the
road, therefore, the driver of the scooter was also held negligent
and responsible to some extent. However, the ST Bus being a big
vehicle, the driver of the ST Bus should have to take more care while
driving the bus and that charge sheet was filed against the ST
driver that itself proves the negligence of ST driver. Therefore, the
claims Tribunal has not committed any error in deciding 10% negligent
of the deceased and 90% of the ST driver. Therefore, the contention
which was raised by learned advocate Ms.Mehta cannot be accepted and
same is rejected.
8. It
is necessary to note that so far as the question of negligence is
concerned, the driver is the only person, who can explain as to how
the accident took place. In facts of present case, the driver was not
examined before the claims Tribunal. Therefore, the claims Tribunal
has considered the panchnama and complaint and on that basis, the
claims Tribunal has come to the conclusion. Therefore, the claims
Tribunal has rightly appreciated the evidence on record. For that,
claims Tribunal has not committed any error which requires
interference by this Court. Considering the consent given by learned
advocate Mr.Satta, for deduction of 10% amount for the negligence of
the deceased from the total awarded amount, therefore, Rs.34,100/- is
ordered to be deducted from total amount of compensation of
Rs.3,41,000/- and now, the appellant ? Corporation shall have to
pay Rs.3,06,900/- with 7.5% interest and with cost to the respondents
claimants. Accordingly, award is modified to the aforesaid extent.
Accordingly, present appeal is disposed of.
9.
The amount of Rs.25,000/- deposited with this Court for the purpose
of appeal shall be transmitted to the Tribunal concerned.
10. As the First Appeal No.4451 of 2008 is dismissed, no order is necessitated in Civil Application No.9501 of 2007. Accordingly, Civil Application No.9501 of 2007 is disposed of.
(H.K.RATHOD,J.)
(vipul)
Top