MANJULABEN W/O KANTIBHAI GOVIDNBHAI CONTRACTOR vs. MAHEBUBKHAN BARKATALI PATHAN [DELETED.]

C/FA/2442/2001 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2442 of 2001 With FIRST APPEAL NO. 2443 of 2001

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-

================================================================ 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 ? 1 to 5 : NO ================================================================ ANILBHAI MOTIBHAI PATEL & MANJULABEN W/O KANTIBHAI GOVINDBHAI CONTRACTOR ....Appellant(s) Versus MAHEBUBKHAN BARKATALI PATHAN [DELETED.] & 4....Defendant(s) ================================================================ Appearance: MS RUKHSANA M PATHAN, ADVOCATE with MS SHALINI S MAIR, ADVOCATE & MR NALIN K THAKKEER for the Appellants MR AJAY R MEHTA, ADVOCATE for the Defendant(s) No. 5 MR VIBHUTI NANAVATI, ADVOCATE for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 4 RULE SERVED BY DS for the Defendant(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL Page 1 of 11

C/FA/2442/2001 JUDGMENT

Date : 15/12/2014

ORAL JUDGMENT 1. Both these appeals are taken together as these are arising out of same accident which has taken place on 01.01.1985. Appeals have been preferred for enhancement of award passed by the Tribunal. In case of First Appeal No.2442 of 2001 in which claimant Anilbhai Motibhai Patel (hereinafter referred to as “Anilbhai”) sustained injuries, the Tribunal awarded compensation of Rs.24,000/-, while in case of First Appeal No.2443 of 2001 wherein Kantibhai Govindbhai Contractor (hereinafter referred to as “Kantibhai”) died, the Tribunal awarded compensation of Rs.4,10,000/- (of which 50% comes to Rs.2,05,000/-) payable to the claimants. Aggrieved from these awards, present appeals have been preferred. 2. Brief facts of the case are that, in the midnight of 31.12.1984 and 01.01.1985, deceased Kantibhai along with claimant Anilbhai were going in a fiat car bearing registration No.GUB 8888 from Valsad to Surat. At about 12.30 midnight, a truck bearing registration No.MRL 9747 came from opposite side, which was being driven rashly and negligently, and driver of the truck lost control and dashed the truck against the fiat car driven by the deceased, which was on its left side. The car was crushed and Kantibhai died on the spot, while his companion Anilbhai (employee of Kantibhai) sustained serious injuries. The injured was taken to hospital where he was Page 2 of 11

C/FA/2442/2001 JUDGMENT treated. Driver of the truck absconded from the place of incident and ultimately “C” Summary was filed against him. 3. Appellants, viz. Legal heirs of deceased Kantibhai, filed Motor Accident Claim Petition No.453 of 1986 claiming compensation of Rs.7,50,000/- before Motor Accident Claim Tribunal of District Valsad at Navsari under section 110-A of the old Motor Vehicles Act 1939. This claim petition was admitted on 06.10.1986. It appears that the petitions preferred by both the claimants were dismissed in default by the Tribunal and thereupon the matters reached this High Court. This Court, vide its order passed in Civil Revision Applications No.1410 of 1997 and 1413 of 1997, allowed the applications and remanded them back to the Tribunal to decide the same on merits. 4. Parties led evidence. Tribunal assessed personal income of Kantibhai to be Rs.4000/- per month and taking into account his age at the time of accident to be 54 years, applied multiplier of 10 and passed award of Rs.4,10,000/-. By calculating 50% liability of the driver of the truck, awarded compensation of Rs.2,05,000/- payable to the claimants. The Tribunal also awarded interest @ 10%. The Tribunal, however, deducted interest for some period which was consumed in pending miscellaneous civil applications. 5. Similarly, in case of Anilbhai, the Tribunal awarded compensation of Rs.24,000/- on account of the injuries received by him. Page 3 of 11

C/FA/2442/2001 JUDGMENT 6. Aggrieved from the decision of the Tribunal, present appeals have been preferred by the legal heirs of deceased Kantibhai and claimant Anilbhai who suffered injuries in the accident. 7. I have heard learned counsel for the parties. Learned counsel appearing for deceased Kantibhai has raised two-fold arguments. According to him, decision of the Tribunal holding that driver of the car was negligent to the extent of 50% requires consideration as it was a case of 100% negligence of the driver of the truck driven by the respondent. He has also raised arguments regarding income of the deceased and the multiplier applied by the Tribunal. 8. While dilating arguments regarding negligence, it has been submitted that: (a) Driver of the truck absconded from the place of occurrence immediately after the accident which shows that the deriver in question was 100% negligent while driving the truck; (b) Anilbhai was an eye witness to the incident and has also received injuries. He deposed before the Tribunal that truck driver was driving his truck in rash and negligent manner while car was being driven on correct side of the road with Page 4 of 11

C/FA/2442/2001 JUDGMENT due care and caution and as such the driver of the offending vehicle was 100% negligent; (c) Exh.86 is copy of Crime Register maintained in the police station. As per this document, highway patrol detected the accident at 03.15 a.m. on 01.01.1985 which has been recorded in the register maintained in the police station wherein it has been stated that driver of the offending vehicle was rash and negligent in driving the same; (d) He referred to Exh.133, general register of records maintained in the Tribunal, wherein at serial No.17 & 18 some endorsement is made. Though this endorsement is not readable, according to learned counsel, it meant that FIR and other relevant documents of this case have been destroyed and are therefore not available. 9. While arguing on the above points, it has been submitted that the Tribunal has wrongly reached to the conclusion that driver of the car was negligent to the extent of 50%. In fact from the facts it is apparent that driver of the truck was 100% negligent and accordingly the finding of the Tribunal requires to be set aside. 10. While arguing on the quantum of compensation, it has Page 5 of 11

C/FA/2442/2001 JUDGMENT been submitted that deceased Kantibhai was earning Rs.96,000/- to Rs.1,00,000/- per annum from his business, the details of which are as follows: (i) G.T.Tiles Factory at Kanjari, Dist.Kheda. (ii) Partnership firm of Kantibhai G.Contractor doing the work of road contract and building contract. (iii) M/s.Ambica Minerals – a firm manufacturing raw materials such as Kapachi, stone etc. for building construction. He also relied upon certain documents to prove his point: (a) Ex.115 – Government Valuer Report of G.T.Tiles Factory. (b) Ex.80 original challan of income tax for 1983-84. (c) Ex.81 original challan of income tax for 1978-79 (d) Ex.82 original form for payment of income tax of Rs.9770/- for the year 1982-83. (e) Ex.83 original form for payment of income tax of Rs.16,050/- for the year 1983-84. (f) Ex.84 Final bill for the contract work of Dharoi Project costing Rs.4,58,138/-. (g) Ex.85 Final Bill amounting to Rs.2,23,745/- for the contract work of Dharoi Project. 11. Finally it was submitted that income of the deceased should have been considered at Rs.8000/- per month, while the Tribunal considered Rs.4000/- per month and, applying multiplier of 10, the claimants were entitled to Rs.7,20,000/- in this case. 12. While arguing on behalf of claimant Anilbhai, it has been submitted that expenditure incurred for treatment has not been Page 6 of 11

C/FA/2442/2001 JUDGMENT taken into consideration. According to learned counsel, after the accident, the claimant was admitted in hospital and spent money on his treatment. As he remained in bed for about eight months, there was loss of income. He has not fully cured and future loss of income has not been taken into consideration. In all, the claimant was entitled to Rs.60,000/- to 70,000/- as compensation and the amount of Rs.24,000/- awarded by the Tribunal was on lesser side. 13. In reply to these submissions, learned counsel for respondents has submitted that taking into account the fact that FIR and other relevant documents have not been placed on record, the Tribunal has rightly reached to the conclusion that deceased, i.e. driver of the car, was 50% negligent and accordingly deducted .2,05,000/- from the compensation amount which has been ₨

assessed by the Tribunal. It is further submitted that as far as income of the deceased is concerned, he was a member of a partnership firm. His share in the firm was not specific, nor It has come in evidence as to how many partners were there in the firm. Keeping in view the fact that share of the deceased has been transferred in the name of his son, there was no loss of income and under these circumstances the award passed by the Tribunal deserves to he upheld. 14. While arguing on behalf of injured Anilbhai, it has been submitted that after taking into account the amount spent on Page 7 of 11

C/FA/2442/2001 JUDGMENT treatment and future income of the claimant, a sum of Rs.24,000/- awarded by the Tribunal was just and proper in the facts and circumstances of the case. 15. I have heard learned counsel for the parties. First of all, I will take up the point regarding negligence on the part of the driver of the truck. Learned counsel for the appellant has based his case on the fact that, after the accident, driver of the truck run away from the place of the occurrence. Anilbhai, co-passenger in the car, was injured in the accident and has deposed regarding negligence of the truck driver. Documentary evidence in the form of Ex.86 was available in the police station, according to which, it has been recorded that driver of the truck was negligent and relevant records of FIR etc. have been destroyed which is clear from Ex.133 placed on record. 16. There is no dispute to the fact that Anilbhai is injured eye witness. After the accident, his evidence was recorded in the Court, a copy of which has been produced today. In his examination-in-chief, he has supported the stand of the claimants. However, in his cross- examination, he has deposed that he has not lodged any complaint in connection with the accident. Highway police might have recorded complaint. It was not true that “the truck-vala ran away after the accident”. He did not know whether any case against the driver was filed in the Court or not. A copy of the complaint and panchnama was Page 8 of 11

C/FA/2442/2001 JUDGMENT previously taken and given to the previous advocate. However, the same was not traceable till date. No operation was done on his person as suggested by Dr.Hiren Bhatt. Liquid food was taken for eight months which was being prepared at home. 17. A close perusal of cross-examination falsifies the stand taken by the claimant. First of all the fact that driver of the truck after the accident has ran away from the place of occurrence. In his own admission, the eye witness has denied the same. Similarly, he is not aware as to whether criminal case has been registered against driver of the offending vehicle or what was the stage of the case, i.e. whether driver of the truck has been convicted or not. Anilbhai, the eye witness, though an interested witness, has not supported the version put forward by their counsel. Exh.86 is a register maintained in the police station wherein a criminal case has been registered after reporting by highway police. Who narrated the version to the highway police is not coming forth. Though some entries have been made in Ex.86, who informed the highway police to make the entries is not clear. In absence of FIR or other necessary documents, it cannot be said that driver of the offending truck was negligent to the extent of 100% . I do not find any fault with the finding recorded by the Tribunal for weeding out and destroying old record after a period of ten years as the matter has been pending for years and because of negligence on the part of advocate of the claimants delay has been caused for which no one else except the claimants are responsible. Page 9 of 11

C/FA/2442/2001 JUDGMENT 18. Coming to the income of the deceased, claimants have claimed a sum of Rs.7.5 lakhs by relying upon income from various sources, as stated in the foregoing paras. I fully agree with the arguments of learned counsel for the respondents that in absence of any proof regarding exclusive ownership of the claimant being the owner of the firm, it cannot be inferred that he was earning Rs.96,000/- to Rs.1,00,000/- per annum from the afore-mentioned sources. While reaching to the conclusion that deceased was earning a sum of Rs.4000/- per month, the Tribunal has taken into account income of partnership firm in an assessment order as Rs.3021/-, tax paid in the year 1982-83 to the tune of Rs.605/- and for 1983-84 as Rs.16,550/-. The claimants have failed to produce in Court the record regarding deceased’s share in the firm mentioned by the claimant, and as such the Tribunal has rightly reached to the conclusion that income of the deceased at the time of his death was Rs.4000/- per month. 19. Regarding multiplier, learned counsel referred to the Schedule contained in the Motor Vehicles Act, 1988 and has submitted that as per the Schedule, the Tribunal was liable to consider multiplier of 13. Even this contention is devoid of any merits. The accident in question has taken place in the year 1985 and at that time Schedule of Motor Vehicles Act 1939 was applicable and the Tribunal, while taking into account the age of the deceased Page 10 of 11

C/FA/2442/2001 JUDGMENT as 54 years applied multiplier of 10, which seems to be just and reasonable. 20. Coming to the arguments regarding enhancement of compensation of Anilbhai, this Court is once again unable to agree. It will be relevant to note that in the original claim, the claimant claimed Rs.50,000/- which seems to have been increased to Rs.1,00,000/- with the passage of time. Once it is established that the Tribunal has taken into account all the four corners of law while awarding compensation, such arguments cannot be accepted. Rs.24,000/- was a substantial amount in the year when it was awarded. 21. As a result of foregoing discussion, both the appeals being devoid of merit are hereby dismissed. However, keeping in view the peculiar facts and circumstances of the case, no costs are awarded against the appellants. Record & Proceedings be returned back to the Tribunal. Sd/- (MOHINDER PAL, J.) KMGThilake) Page 11 of 11