SUSHILADEVI WD/O DHARAMCHAND MANGILAL MEHTA vs. BHAVSAHEB SHANKAR PATIL

C/FA/1112/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1112 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE B.N. KARIA

========================================================== 1      Whether Reporters of Local Papers may be allowed to see the judgment ? 2      To be referred to the Reporter or not ? 3      Whether their Lordships wish to see the fair copy of the judgment ? 4      Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== SUSHILADEVI WD/O DHARAMCHAND MANGILAL MEHTA & 5 other(s) Versus BHAVSAHEB SHANKAR PATIL & 2 other(s) ========================================================== Appearance: MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5,6 MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3 RULE SERVED(64) for the Defendant(s) No. 1,2 ========================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 26/07/2019

ORAL JUDGMENT Present appeal is directed against the judgment and award passed by the Motor Accident Claims Tribunal (Main), Page 1 of 13

C/FA/1112/2011 JUDGMENT Surat in M.A.C.P. No. 1164 of 1001 on 4th December 2009. Present appellants are the original claimants and respondents are the original opponents before the Tribunal, and hence, for the sake of convenience and brevity they would be referred to as the claimants and opponents. Dharamchand Mangilal Mehta was proceeding from Udhana to Pandesara by driving his scooter, bearing registration No. GJ-5-H-4676 on 14th November 1991. He was proceeding on Udhna-Bhestan road on the correct side of the road and in moderate speed. At that time, opponent no.1 came from the opposite direction by driving his truck, bearing registration No. GTG-1300, with excessive speed, rashly, negligently and endanger the human life and dashed with the driver of the scooter named Dharamchand Mehta, as a result of which, he was thrown away from the scooter. In this accident, severe injuries were caused to him, and therefore, he was succumbed to the injuries. Thereafter, the claim petition was preferred by original claimants on account of sad demise of the deceased praying for compensation of Rs. 15 lacs against the opponents. Thereafter, by submitting an application for amendment on 17th February 2009 Ex. 29, as the claimants Page 2 of 13

C/FA/1112/2011 JUDGMENT No.2 and 3 were major, it was requested to change the status of the claimants no. 2 and 3. It was further submitted that wife of the deceased-claimant no.1 was pregnant at the time of accident, and thereafter, on 23rd May 1992, a baby girl was born, and thereafter, the name of the baby was required to be added as claimant no. 4. The parents of the deceased were staying at Rajasthan and therefore, initially they were not joined, but being dependents of the deceased, the original claimants requested to join them as the claimants. The said application was allowed by the learned Tribunal and amendment thereof was carried out. As per the averments made in the claim petition, age of the deceased was 24 years at the time of accident. That, he had started his business at Udhna and was operating his business of metal scraps in the name and style of Jain Metal Corporation. That, monthly income of the deceased in the year 1991 was Rs. 4,500/-, as he had wide experience of his business. That, making progress in future, he could have able to earn Rs. 10,000/- to Rs. 12,000/-per month from his business. That, he was income tax payer and at the time of accident, his monthly income was crossed to Rs. 8,000/-. Huge amount was to be spent in funeral expenses of Page 3 of 13

C/FA/1112/2011 JUDGMENT the deceased by the claimants. On count of different heads, a request was made by the original claimants to pass an award of Rs. 15,00,000/- including interest @ 18% from the date of filing of the claim petition. The Tribunal issued a notice to the opponents, which was served to them. The opponent nos. 1 and 2-driver and owner of the vehicle themselves were not remained present before the tribunal. However, vide Ex. 12, learned advocate was appeared for and on behalf of the opponents no.1 and 2. No written statement was filed by the opponents No.1 and 2. Opponent no.3-Insurance Company filed its written statement Ex. 17 denying the averments made in the claim petition by the claimants stating that there was no liability of the Insurance Company to pay any compensation to the original claimants on account of sad demise of the deceased in a motor vehicular accident. Learned Tribunal, after considering FIR Exh.33, Panchnama of place of incident Exh.34, post mortem note of the deceased Exh. 35, Inquest Panchnama Exh. 36, Certificate for cause of death Exh. 37, Marksheet of the deceased Exh. 38, birth certificate of claimant no.2 Exh. 39, School leaving certificate of claimants No.4 Exh. Page 4 of 13

C/FA/1112/2011 JUDGMENT 41, Registration certificate under Shop and Establishment Act in favour of Jain Metal Corporation Exh.42, Registration certificate under Gujarat Sales Tax Act Exh.44 and 45; attested copy of the registration of the Jain Metal Corporation Exh. 46; Income tax order for the assessment year 1991-92 of the deceased Exh. 56; statement of income calculation for the same year Exh.58; Challan showing payment of tax by the deceased Exh. 59 and cover note of the Insurance policy of the vehicle involved in the accident Exh. 70, was pleased to pass an award in favour of the original claimants to the tune of Rs. 4,38,500/- along with interest @ 9% p.a. from the date of filing of the claim petition holding the liability of the opponents no. 1, 2 and 3 jointly and severally. The contributory negligence of the deceased was also considered by the tribunal to the extent of 30%. Being dissatisfied with the impugned judgment and award passed by the Tribunal, present appellants/original claimants have preferred this appeal under Section 173 of the Motor Accident Act. Heard learned advocate Mr. MTM Hakim for the appellants and learned advocate Mr. Maulik J. Shelat for the Page 5 of 13

C/FA/1112/2011 JUDGMENT respondent no.3. No arguments were advanced for and on behalf of the respondents no.1 and 2. Learned advocate for the appellants/original claimants has submitted that the impugned judgment and award passed by the learned Tribunal is contrary to settled principles and propositions of law and thus, it requires modification. It is further submitted that attributing 30% negligence on the part of the deceased and reducing compensation to the claimants is clearly gross error committed by the Tribunal. That, there was no negligency on the part of the deceased himself in causing the accident. That, merely on the basis of location of the scooter at the scene of accident, the Tribunal has erroneously considered the negligency of the deceased. That, blood and skin was found on the Tyre and Mudguard of the truck. As the body of deceased was found lying underneath the rear wheel of the truck and skull was completely crushed. That, the driver of the truck had run away from the scene of accident and opponents no.1 and 2 were not examined by the opponent no.3 to controvert the claim of the original claimants. However, the accident was taken place due to sole negligence on the part of the truck driver, the Tribunal has committed an error in Page 6 of 13

C/FA/1112/2011 JUDGMENT holding neligency of the deceased to the extent of 30%. That, there was 100% negligency on the part of the truck driver in causing an accident. Learned advocate has further argued that deduction of 1/3rd towards personal expenses from the income of deceased is completely wrong. That, Tribunal ought to have awarded 6/7th dependency from the income of the deceased considering the numbers of dependents. That, adopting 17 multiplier only, Tribunal has committed an error. That, 18 years multiplier considering the age of the deceased at 26 years was required to be adopted. That, conventional amount was also not awarded to the claimants as per the settled law. Hence, it was requested by learned advocate for the appellants to allow this appeal and increase the amount of compensation in addition to awarded amount by the tribunal and modify the same. From the otherside, learned advocate for the respondent no.3 supported the judgment and award passed by the Tribunal and argued that Tribunal has considered all the aspects and thereafter, has come to the conclusion that deceased himself was negligent to the extent of 30% as well as truck driver was negligent to the extent of 70%. That, while Page 7 of 13

C/FA/1112/2011 JUDGMENT drawing attention of this court in respect of panchnama of place of accident Ex. 34, it was submitted that Scooter, bearing registration No. GJ-5-H-4676 was found on the middle of the road towards western side. Chassis as well as head light of the scooter were damaged. Leaving some distance from the scooter and tar road, there was slum area of Premnagar. From the northern side, 34 feet away from scooter, a truck, bearing registration No. GTG-1300 was found on the northern side. Between the scooter and truck, on the road, there were some pieces of skin and body mass. It was further submitted that right side of the wheel of the driver and front portion of the driver side blood stain was also found. As per contents of the complaint, the Tribunal has rightly observed the situation of the place of incident and both the vehicles involved in the accident, and therefore, no error was committed by the Tribunal in considering the negligency of the deceased to the extent of 30% and driver of the truck to the extent of 70%. Hence, it was requested to dismiss the issue as raised by the claimants before this Court. On coming to the next point, it was submitted by learned advocate for the respondent No.3 that there is no error in Page 8 of 13

C/FA/1112/2011 JUDGMENT awarding compensation in favour of the original claimants. However, it was submitted that personal expenses may be deducted 1/4th if deemed fit to the Court. Referring to the judgment of the Apex Court passed in case of National Insurance Company Limited Vs. Pranay Shetty & Ors., reported in (2017) 16 SCC 680, learned advocate for the respondent no.3 has further submitted that on conventional head, the appropriate amount may be awarded to the claimants by this Court. Hence, it was requested by learned advocate for the respondent no.3 to dismiss the appeal. Having perusing the record of the Tribunal and arguments advanced by learned advocate for the respective parties, it appears that complaint was lodged against the driver of the truck, bearing registration no. GTG-1300 by Shri Laxmanlal Khimraj before the police on 14th November 1991, which was produced vide Ex. 33. Complainant was informed by Shri Jivrajbhai at about 11.15 a.m. about the accident. The complainant rushed to the place of accident and found that his nephew was crushed under right side wheel of the truck, bearing registration No. GTG-1300 and his skull was grievously injured. Rear side weehl of the truck was found Page 9 of 13

C/FA/1112/2011 JUDGMENT with some pieces of body mass and blood stain. The complainant also found scooter in a turtled condition on western side. The truck driver had run away from the place of accident. Hence, a complaint was registered by him before the Udhna Police Station, which was registered vide CR No. I- 247/1991. It appears that on the basis of the complaint registered by the police, investigation was progressed by the concerned agency and panchnama of the place of accident was prepared in presence of two panchas namely Manojbhai Bhagubhai nayak and Arunbhai J. Desai, which is produced vide Ex. 34. the place of incident was on main road of Udhna- Bhestan, opposite Premnagar Slum Area on the middle part of the road. A scooter of Bajaj Company, bearing registration No. GJ-5-H-4676 was found on the western side. Chassis as well as head light of the scooter were damaged. Leaving some distance from the road, one electric pole and Premnagar Slum area were found and there was open space by leaving 20 feet on western side from the scooter. It also appears from the panchanama of place of accident Exh. 34 that on northern side, leaving distance of 35 feet from the scooter, one truck, bearing registration No. GTG-1300 was found on northern Page 10 of 13

C/FA/1112/2011 JUDGMENT side. Between the road as well as scooter and truck, pieces of skin and body mass were found. It was also noted in the panchnama of place of accident that right side wheel and front portion of the driver side were with blood stained. If we consider the oral evidence of claimant Sushiladevi, widow of deceased Dharamchand Ex. 30, complainant as well as panchnama of place of accident, this Court is of the view that holding negligency of the truck driver to the extent of 70% and of the deceased to the extent of 30% was not proper. Considering the record produced before the Tribunal, this Court is of the view that the negligency of the truck driver would require to be considered to the extent of 80% and negligency of the deceased scooter driver would require to be considered to the extent of 20% in causing an accident in question and hence, the findings arrived at by the tribunal on the issue of negligency would be modified to that extent. As there is no dispute in respect of the income of deceased, which comes to Rs. 52,500/- per annum. It appears from the judgment and award, the Tribunal has deducted 1/3rd amount by way of personal expenses of the deceased. If we consider the age of the deceased and his dependents, the Page 11 of 13

C/FA/1112/2011 JUDGMENT deduction of 1/4th towards personal expenses would be just and proper and it would come to Rs. 13,125/- and thus, while deducting such amount from his income, it would come to Rs. 38,375/-. It appears that the Tribunal has considered 17 multiplier which is quite proper and legal. As per the ratio laid down by the Apex Court, there is no need to change multiplier. Thus, after applying 17 multiplier, the dependency benefit would come to Rs. 6,69,375/-. As per ratio laid down in the judgment in the case of Pranay Shetty (Supra), the appellants-original claimants would be entitled to additional amount of Rs. 70,000/- under the different conventional heads. Thus, the total amount of compensation would come to Rs. 7,39,375/-. Considering the negligency of the deceased himself to the extent of 20% means while deducting Rs. 1,47,875/- from the total amount of compensation, the claimants would be entitled to compensation of Rs. 5,91,500/-. The Tribunal has awarded Rs. 4,38,500/- wrongly, actually it would come to Rs. 3,06,950/-. If we deduct this amount, the remaining amount Rs. 2,84,550/- along with interest @ 9% p.a. from the date of filing claim petition till its realization would be payable to the Page 12 of 13

C/FA/1112/2011 JUDGMENT original claimants. This appeal is partly allowed. Respondent no.3 is directed to pay such additional amount of Rs. 2,84,550/- along with interest @ 9% p.a. as per award and deposit such amount within four months from the date of receipt of this order. No order as to costs. Registry is directed to send back record and proceedings to the Tribunal. (B. N. Karia, J. ) ksdarji Page 13 of 13