GUJARAT STATE ROAD TRANSPORT CORPORATION vs. RANJANBEN RELICT OF ARVIND VASANTRAV DABHADE

C/FA/2677/1997 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2677 of 1997

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE HARSHA DEVANI

================================================================ 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 ? ================================================================ GUJARAT STATE ROAD TRANSPORT CORPORATION....Appellant(s) Versus RANJANBEN RELICT OF ARVIND VASANTRAV DABHADE & 5....Defendant(s) ================================================================ Appearance: MRS VASAVDATTA BHATT, ADVOCATE for the Appellant(s) No. 1 DELETED for the Defendant(s) No. 6 MR MTM HAKIM, ADVOCATE for the Defendant(s) No. 1 - 4 RULE SERVED for the Defendant(s) No. 5.1 - 5.3 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI

Date : 28/04/2014

ORAL JUDGMENT Page 1 of 7

C/FA/2677/1997 JUDGMENT By this appeal under section 173 of the Motor Vehicles Act, 1988, (hereinafter referred to as `the Act') the appellant – Gujarat State Road Transport Corporation (hereinafter referred to as `the Corporation') has challenged the judgment and award dated 22nd January 1997 passed by the Motor Accident Claims Tribunal (Aux.) Surat in Motor Accident Claim Petition No. 1044 of 1988. 2. The facts giving rise to the present appeal are that the respondent No.1 to 5 (original claimants) filed a claim petition before the Claims Tribunal contending that on 30th November 1988 at about 13.00 hours the deceased Arvindbhai and his maternal brother were riding on a scooter bearing No. GBJ 3272. When they reached Navyug College, Rander Road, Surat, a Gujarat State Road Transport Corporation bus bearing registration No. GRU 7675, which was being driven by respondent No.6 (driver) in a rash and negligent manner on the wrong side of the road, dashed with the scooter, on account of which, both deceased Arvindbhai, who was driving the scooter, as well as his cousin Diwakar, who was the pillion rider, fell off the scooter. Arvindbhai sustained injuries on his head, arms and legs and various parts of his body, and Diwakar also sustained injuries. Arvindbhai was shifted to the hospital by Diwakar, but he was declared dead by the Medical Officer of the New Civil Hospital at Surat. 3. It was the case of the claimants that at the time of his death the deceased was 40 years of age, and had studied upto inter commerce, and had taken up service in the year 1976-77 as a Development Officer in Divya Vasundhara Finance Corporation at Surat, and was paid a salary of Rs.1500/- per month. Thereafter, he has joined as Manager-cum-Sales Officer in Janta Textile, where he obtained experience in machinery line from 1978 to 1987, and his monthly salary was Rs.2,200/-. In the year 1987, he started business of commission agent in textile machinery spare parts and printing machinery in the name of Payal Agency, and was earning commission of Rs.5,000/- per month, and he was also Page 2 of 7

C/FA/2677/1997 JUDGMENT an agent of Life Insurance Corporation of India earning commission of Rs.5,000/- per year. The deceased was an income-tax payer, and his income for the year 1986-87 was Rs.23,500/-, and for the year 1987-88 Rs.50,756/-. The claimants, accordingly, claimed compensation of Rs.7,00,000/- under the head of loss of dependency as well as other non-pecuniary heads with interest at the rate of fifteen per cent per annum. 4. The Tribunal, after appreciating the evidence on record, found that the accident had occurred solely on account of the gross negligence on the part of the driver of the State Transport bus. On the question of quantum, the Tribunal, on the basis of the income-tax returns produced by way of documentary evidence, assessed the monthly income of the deceased at Rs.2,250/-. The Tribunal assessed the prospective income of the deceased at Rs.3,900/-, and deducted one third towards his personal expenses, and calculated the loss of dependency at Rs.2,600/- per month (Rs.31,200/- per annum). Having regard to the fact that the age of the deceased was 40 years, the Tribunal applied a multiplier of 13, and computed the total loss of dependency at Rs.4,05,600/-. The Tribunal awarded Rs.2,000/- towards loss of estate, Rs.15,000/- towards pain, shock and suffering, and Rs.20,000/- towards funeral expenses. In all, the Tribunal awarded a compensation of Rs.4,42,600/-. Being aggrieved, the Corporation is in appeal. 5. Mrs. Vasavdatta Bhatt, learned advocate for the appellant, submitted that the Tribunal had failed to appreciate the evidence on record in proper perspective. While agreeing that the accident had occurred on account of the negligence on the part of the driver of the State Transport bus, it was submitted that, the driver of the scooter was also negligent, and as such, the Tribunal was not justified in holding the bus driver alone to be negligent. It was submitted that, therefore, to the extent of the contributory negligence of the deceased, the compensation is required to be reduced. Page 3 of 7

C/FA/2677/1997 JUDGMENT 6. On the question of quantum of compensation, it was submitted that the Tribunal had added more than fifty per cent to the annual income of the deceased, and as such, the future prospective income as calculated by the Tribunal is on the higher side. It was, accordingly, submitted that the appeal deserves to be allowed by holding that there was contributory negligence on the part of the deceased and reducing the compensation awarded under the head of loss of dependency. 7. On the other hand, Mr. Mohsin Hakim, learned advocate for the respondents No.1 to 4 submitted that the Tribunal after duly appreciating the evidence on record has found, as a matter of fact, that it was on account of the negligence on the part of the driver of the State Transport bus that the accident had taken place. It was submitted that, on the evidence which has come on the record, the view adopted by the Tribunal is just and proper, and hence, there is no warrant for interference by this court. 8. On the question of quantum of compensation, it was conceded that the Tribunal has estimated the prospective income at a slightly higher rate inasmuch as fifty per cent of his monthly income could have been added while computing his personal income. It was further pointed out that the deceased had five dependents, and hence, the Tribunal was not justified in deducting one third towards personal expenses. It was submitted that in terms of the decision of the Supreme Court in case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, only one fourth of the income ought to have been deducted towards personal expenses of the deceased. It was also submitted that the Tribunal has applied a multiplier of thirteen, whereas, having regard to the fact that the age of the deceased was 40 years, in view of the decision of the Supreme Court in the case of Sarla Verma (supra), the proper multiplier would be fifteen. It was submitted that, therefore, on the contrary, the compensation is required to be enhanced by applying the principles laid down by the Supreme Court in case of Sarla Verma (supra). Page 4 of 7

C/FA/2677/1997 JUDGMENT 9. This court has considered the submissions advanced by the learned advocates for the respective parties, and has perused the record and proceedings of the case. 10. On the question of contributory negligence on the part of the deceased, a perusal of the impugned award reveals that the Tribunal has discussed the evidence on record in detail. After considering the contents of the first information report as well as panchnama of scene of accident, the deposition of eye witness Diwakar, as well as the deposition of the driver of the State Transport bus, the Tribunal has come to the conclusion that the accident had occurred on account of the negligence on the part of the driver of the State Transport bus alone. On a perusal of the first information report, the panchanama of the scene of accident as well as the depositions of witness Diwakar and the driver of the offending bus, the Court is of the view that the conclusion arrived at by the Tribunal cannot be said to be based on no material or on irrelevant material, nor can the same in any manner be said to be perverse to the record of the case. The findings on the question of negligence, being findings of fact recorded by the Tribunal after appreciating the evidence on record, in the absence of any perversity being pointed out therein, there is no warrant for interference by this court. Under the circumstances, the contention regarding contributory negligence on the part of the deceased does not merit acceptance. 11. In so far as the quantum of compensation is concerned, the learned advocate for the appellant is justified in submitting that the monthly prospective income as assessed by the Tribunal is slightly on the higher side. Having regard to the fact that the Tribunal has assessed the monthly income of the deceased at Rs.2,250/- per month in terms of the decision of the Supreme Court in Rajesh v. Ranbir Singh, (2013) 9 SCC 54, fifty per cent of his actual income was required to be added for the purpose of calculating the future prospective income Page 5 of 7

C/FA/2677/1997 JUDGMENT having regard to the fact that the age of the deceased was 40 years. Therefore, the monthly income of the deceased is required to be assessed at Rs.3,375/- (Rs.2,250/- plus Rs.1,125/-). On the other hand, as rightly submitted by the learned advocate for the claimants, the deceased had five dependents and hence only one fourth of his income could have been deducted towards his personal expenses. Therefore, the monthly loss of dependency would come to Rs.2,531/- (Rs.3,375/- minus Rs. 844). The annual loss of dependency would, accordingly, work out to Rs.2,531 x 12 = Rs.30,372/-. Considering the fact that the age of the deceased was 40 years at the time of the accident, in terms of the decision of the Supreme Court in the case of Sarla Verma (supra), a multiplier of fifteen ought to have been applied. Therefore, the total loss of dependency would come to Rs.30,372/- x 15 = Rs.4,55,580/-. By rounding of the said figure, the same would be Rs.4,55,600/-. 12. The Tribunal has awarded Rs,4,05,600/- towards loss of dependency, therefore, the claimants are entitled to an additional amount of Rs.50,000/- under this head. In so far as the compensation awarded under the other heads is concerned, the same appears to be just and proper, and hence, there is no warrant for interference. The total amount of compensation, therefore, would come to Rs.4,92,600/-. 13. At this juncture, it may be noted that the respondents (claimants) have not filed any cross-objection or appeal against the impugned award. In this regard, reference may be made to the provisions of Order XLI, Rule 33 of the Code of Civil Procedure, 1908, which provides that the appellate court shall have power to pass any decree, and make any order, which ought to have been passed or made, and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the Court, notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Under the circumstances, when it is found Page 6 of 7

C/FA/2677/1997 JUDGMENT that in the impugned award the Tribunal has not awarded just compensation, it is always permissible for this Court to apply the relevant principles in this regard, and award just compensation to the claimants, even if they have not preferred any appeal or cross-objection. 14. In light of the above discussion, the appeal fails, and is, accordingly, dismissed. The impugned award shall stand modified to the above extent. Accordingly, the respondents No. 1 to 5 shall be entitled to an additional compensation of Rs.50,000/- with interest at the rate of 7.5 per annum from the date of filing of the claim petition till realization thereof. The respondents No. 1 to 5 shall pay the additional court fee on the enhanced amount of compensation. (HARSHA DEVANI, J.) sndevu Page 7 of 7