DIVISIONAL CONTROLLER vs. LEGAL HEIRS OF JAYANTILAL NANALAL PATEL

C/FA/188/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 188 of 2014 With CIVIL APPLICATION NO. 589 of 2014 In FIRST APPEAL NO. 188 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH

and HONOURABLE MR.JUSTICE R.P.DHOLARIA

============================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================= DIVISIONAL CONTROLLER....Appellant(s) Versus LEGAL HEIRS OF JAYANTILAL NANALAL PATEL & 2....Defendant(s) ============================================= Appearance: MR HARDIK C RAWAL, ADVOCATE for the Appellant(s) No. 1 MR VA MANSURI, ADVOCATE for the Defendant(s) No. 1.2 , 1.4 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 11/02/2014

ORAL JUDGMENT Page 1 of 7

C/FA/188/2014 JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) 1. The appellant – Gujarat State Road Transport Corporation, by preferring present appeal under Section 173 of the Motor Vehicles Act, 1988, seeks challenge to the impugned judgment and award dated 24.06.2010 passed by the learned Motor Accident Claims Tribunal, Sabarkantha at Himatnagar (hereinafter referred to as the ‘Tribunal’) in Motor Accident Claim Petition No.1188 of 2004, whereby the learned Tribunal has awarded a total sum of Rs.10,97,671/- as compensation to the heirs and legal representatives of deceased Jayantilal Nanalal Patel, who died in a vehicular accident. 2. The brief facts of the case may be stated as under: 2.1. That on 13.04.2013, at about 8:00 a.m., while the deceased Jayantilal N. Patel was proceeding on his Maruti Car bearing registration no. GJ-1-AP-9185 on Chiloda – Himmatnagar National Highway and while he was passing through the sim of village Chhala, at that time, the driver of the bus of the appellant – Gujarat State Road Transport Corporation bearing registration No. GJ-18-V- 4135 came from the opposite direction driving his bus in a rash and negligent manner and dashed with the aforesaid Maruti Car, in the result the deceased Jayantilal N. Patel sustained serious injuries and ultimately he succumbed to the said injuries. 2.2. The heirs and legal representatives of the deceased preferred the aforesaid Motor Accident Claim Petition No.1188 of 2004 before the learned Tribunal claiming the compensation of Rs.21 lakhs u/s. 166 of the Motor Vehicles Act, 1988 under various heads. 2.3. After the conclusion of the trial, the learned Tribunal was pleased to award a total sum of Rs.10,97,671/- as compensation under various heads along with interest and proportionate cost and Page 2 of 7

C/FA/188/2014 JUDGMENT also fastened the liability upon the Gujarat State Road Transport Corporation. 3. Being aggrieved by and dissatisfied with the aforesaid judgment and award passed by the learned Tribunal, the Gujarat State Road Transport Corporation has preferred the present appeal challenging the impugned judgment and award passed by the learned Tribunal. 4. Shri Hardik Rawal, learned advocate appearing on behalf of the appellant – Gujarat State Road Transport Corporation has submitted that the learned Tribunal has committed grave error in holding the driver of the Gujarat State Road Transport Corporation only liable by excluding the deceased himself who was also negligent for causing the accident. Thus, the learned Tribunal has committed an error in not fastening the contributory negligence of the deceased himself, who was, at the time of driving his car, talking on the mobile phone due to which the accident has occurred. Thus, the learned Tribunal ought to have fastened the contributory negligence of the deceased also and when the learned Tribunal has materially erred in not fastening the contributory negligence, the amount of compensation as awarded by the learned Tribunal to the extent of contributory negligence of deceased himself, shall be sliced down/deducted. Shri Rawal, learned advocate for the Corporation also submitted that the amount of compensation awarded to the legal heirs of deceased is also on higher side. 5. The appellant - Gujarat State Road Transport Corporation has preferred the appeal mainly on the aforesaid two grounds. At the stage of admission of this appeal, we have called for the Record & Proceedings of the case from the learned Tribunal. We have heard the learned Advocate Shri Hardik Rawal, learned advocate Page 3 of 7

C/FA/188/2014 JUDGMENT for the Gujarat State Road Transport Corporation and also perused the Record & Proceedings as well as material evidence available on record. 6. Now, so far as the point of negligence is concerned, from the record, it appears that the appellant – Gujarat State Road Transport Corporation has examined Yasinmiya Hasumiya Shaikh, the driver of the offending vehicle i.e. bus bearing registration No. GJ-18-V-4135 vide Exh.63 wherein he deposed that the driver of Maruti Car i.e. Jayantilal (deceased) was talking on his mobile phone while driving his car and that the accident occurred because of the negligence on the part of the driver of the Maruti Car i.e. the deceased. 6.1. However, in the cross-examination, the driver of Gujarat State Road Transport Corporation has admitted that he has not pleaded in the written statement filed by him at Exh.19 that the driver of aforesaid Maruti Car i.e. the deceased was talking on his mobile phone while driving his car at the relevant time. He has also admitted in the cross-examination that after the conclusion of the investigation, the Police filed a charge-sheet against him and after the conclusion of trial and hearing, in the aforesaid criminal case arising out of the said accident; he has been convicted for causing the aforesaid accident. 7. So, in view of the aforesaid evidence on the part of the driver of Gujarat State Road Transport Corporation itself, it is clearly established that the driver of Maruti Car was talking on mobile phone while driving his car at the relevant time of accident is the defence put up as an afterthought as the same was not pleaded in the written statement and therefore the learned Tribunal has rightly not believed the version of the driver of the Gujarat State Road Transport Corporation. Page 4 of 7

C/FA/188/2014 JUDGMENT 8. Over and above the aforesaid oral evidence, the original claimants have also produced the documentary evidence in the nature of FIR at Exh.29, charge-sheet at Exh.33 which clearly indicates the negligence on the part of driver of the Gujarat State Road Transport Corporation. 9. In view of the aforesaid evidence on the record, the learned Tribunal has rightly recorded the finding of sole negligence on the part of the driver of the Gujarat State Road Transport Corporation and resultantly has rightly fastened the entire liability upon the Gujarat State Road Transport Corporation. 10. Now, as regards the contention of excessive quantum of compensation is concerned, the age of the deceased Jayantilal N. Patel was proved to be 46 years at the time of accident in view of the documentary evidence in the nature of driving licence produced before the learned Tribunal. 11. Regarding the income of the deceased, the deceased Jayantilal was qualified B.E. (Civil) Engineer and previously he was serving as Under Secretary in the Public Works Department in the State of Gujarat and he resigned from his service in the year 1992 and thereafter he started his own construction business. In order to prove his business income the claimants have produced the orders of income-tax assessment for the assessment year 2000-2001; 2001-2002; 2002-2003 and 2003-2004 disclosing his business income of Rs.90,000/-, Rs.60,000/-, Rs.1,00,000/- and Rs.1,25,000/- respectively. 12. The claimants have also pleaded that over and above his construction business the deceased was also engaged in the activity of supervision of his agricultural lands. In order to prove the same, the claimants have also produced before the learned Page 5 of 7

C/FA/188/2014 JUDGMENT Tribunal the revenue records at Exh. 49 to 55 disclosing 40 Acres of agricultural lands belonging to the joint family. Considering that fact and considering the vast land, the learned Tribunal fixed supervisory income of the deceased at Rs.2,000/- per month. Thus, the learned Tribunal has considered the average business income of the deceased at Rs.1,00,000/- per annum and supervisory income at Rs.24,000/- per annum. In all, the learned Tribunal has considered the income of the deceased at Rs.1,24,000/- per annum. 13. The learned Tribunal has, relying upon the aforesaid documentary evidence in the nature of order of income-tax assessment as well as revenue record, believed the aforesaid annual income of Rs.1,24,000/-, which, in our view, is in consonance with the evidence on record. The learned Tribunal has, thereafter, deducted 1/3rd income for his personal expenditure and assessed the net dependency loss available to the claimants at Rs.82,667/- and considering the ratio laid down by the Hon'ble Supreme Court in the celebrated decision of Sarla Verma & Ors. v. Delhi Transport Corporation & Ors. reported in (2009) 6 Supreme Court Cases 121, the learned Tribunal applied 13 multipliers and awarded Rs.10,74,671/- towards future loss of dependency and also awarded Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.3,000/- towards funeral expenses. In all, the learned Tribunal has awarded Rs.10,97,671/- to the heirs and legal representatives of the deceased. 14. In our view, when the learned Tribunal has, while fixing the future loss of income, taken into consideration only the income earned and proved in accordance with oral as well as documentary evidence available on record and even not considered the prospective rise in the income of the deceased, in that view of the matter, the award made by the learned Tribunal is moderate and Page 6 of 7

C/FA/188/2014 JUDGMENT consequently therefore also it does not call for any interference of this Court. 15. In our perusal of evidence on record, we found the aforesaid findings recorded by the learned Tribunal on the point of negligence as well as quantum, in consonance with the evidence available on record, which does not call for any interference by this Court. 16. In view of the aforesaid facts and circumstances, the appeal deserves to be dismissed and is, accordingly, dismissed. 17. In the result, the judgment and award dated 24.06.2010 passed by the learned Tribunal in Motor Accident Claim Petition No.1188 of 2004 is hereby confirmed. 18. In view of the dismissal of the main first appeal, Civil Application No. 589 of 2014 also stands dismissed. Ad-interim relief, if any, stands vacated forthwith. R & P be transmitted back to the learned trial Tribunal forthwith. (M.R.SHAH, J.) (R.P.DHOLARIA,J.) Jani Page 7 of 7