PRAKASHCHANDRA PRAHLADBHAI PRAJAPATI vs. THAKOR KANAJI GAMBHIRJI

C/FA/463/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 463 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 ? ============================================= PRAKASHCHANDRA PRAHLADBHAI PRAJAPATI & 3....Appellant(s) Versus THAKOR KANAJI GAMBHIRJI & 2....Defendant(s) ============================================= Appearance: MR JM BAROT, ADVOCATE for the Appellant(s) No. 1 - 4 MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 1 - 2 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 21/04/2014

ORAL JUDGMENT Page 1 of 10

C/FA/463/2014 JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) 1. By way of preferring present appeal, the appellants herein – original claimants seek to challenge the impugned judgment and award dated 18th December 2013 passed by the learned Motor Accident Claims Tribunal (Aux.), Mehsana (hereinafter referred to as the Tribunal) in Motor Accident Claim Petition No. 468 of 2011, by which, the learned Tribunal has awarded to the appellants herein – original claimants a total sum of Rs.9,60,000/- along with interest @ 9% per annum from the date of claim petition till its realization fastening the liability upon respondent Nos. 2 and 3 herein – original opponent Nos. 2 and 3. 2. The facts in nutshell are as under: 2.1. That on 30.05.2011, the deceased Prakashchandra and his partner Mukeshbhai Visabhai Prajapati, after finishing their business from village Modhera, were returning to their village Udela upon a motorcycle No. GJ-2-AL-8529. At that time, said Mukeshbhai Prajapati was driving the motorcycle and the deceased Prakashchandra was travelling as a pillion rider upon the said motorcycle. While the said motorcycle was proceeding on the highway leading towards Mehsana and when it reached within the vicinity of village Ganeshpura (Gambhu) patiya at about 8:15 p.m., at that time, the driver of one scooter bearing No. GJ-2-A-7699 came from behind in a very hectic speed and dashed with the aforesaid motorcycle from behind upon which the deceased was proceeding. In the result, the deceased sustained grievous injury on head and ultimately he succumbed to the injuries. 3. Feeling aggrieved by and dissatisfied with the impugned Page 2 of 10

C/FA/463/2014 JUDGMENT judgment and order, the appellants herein have preferred present appeal seeking enhancement of the compensation. 4. As narrow question of quantum is involved in the present appeal, this Court, vide order dated 10.03.2014, issued Notice for final disposal making it returnable on 15.04.2014. In pursuant thereto, Shri GC Mazmudar, learned advocate has appeared for the insurance company – respondent No.3. None has appeared for respondent Nos. 1 and 2 though served. 5. Mr. Barot, learned advocate for the appellants has submitted that the learned Tribunal, while assessing the amount of compensation, failed to consider the prospective income and the learned Tribunal has fallen in error in deducting 1/3rd of income for personal and living expenditure of deceased instead of deducting 1/4th as the claimants are the wife, daughter and parents of deceased i.e in all four persons. He has also submitted that the rule of thumb laid down by the Hon'ble Supreme Court in the celebrated decision Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 Supreme Court Cases 121 has not been taken into consideration while awarding the compensation and he has urged to count the prospective income. 6. Per contra, Shri GC Mazmudar, learned advocate for respondent No.3 – insurance company has contended that in spite of the contention which was raised before the learned Tribunal for fixation of contributory negligence, the learned Tribunal has committed an error in not fixing the contributory negligence and to the extent of contributory negligence on the part of driver of motorcycle, the amount of compensation is Page 3 of 10

C/FA/463/2014 JUDGMENT required to be sliced down. He has argued that this is a case wherein the motorcycle as well as the scooter i.e. two two- wheelers were collided with each other and the collision was head on, the contributory negligence on the part of the driver of motorcycle is required to be fixed. 8. Heard the learned advocates appearing on behalf of the respective parties at length. We have also gone through the impugned judgment and award as well as the material made available to us during the course of hearing of present appeal. 9. Now, the point of contributory negligence is required to be dealt with first. In order to appreciate the contention raised by the learned advocate for the insurance company, it prima facie reveals that the argument advanced by the learned advocate for the insurance company is contrary to the evidence on record. The evidence in the nature of FIR, Panchnama as well as oral evidence of complainant Mukeshbhai Prajapati is available on record. It appears from the record that an FIR came to be lodged soon after the accident and the Panchnama of scene of occurrence/accident came to be drawn which clearly indicative of the fact that the driver of scooter bearing registration No. GJ-2-A-7699 hit from behind on rear portion of the motorcycle No. GJ-2-AL-8529 on which the deceased was travelling as the pillion rider. The Panchnama of scene of accident clearly indicates that due to the impact, the rear portion of motorcycle caused heavy damage which was quantified at Rs.4000/- by the Panchas, whereas the damage caused to the scooter on front headlight was assessed at Rs.200/- only. The fact which is revealing from the FIR as well as Panchnama have been corroborated Page 4 of 10

C/FA/463/2014 JUDGMENT during the course of the oral examination of complainant i.e. the driver of motorcycle No.GJ-2-AL-8529. In his cross- examination, no question was put-forth by the learned advocate for the insurance company as regard the head on collision. 10. In view of the aforesaid clear oral as well as documentary evidence in the nature of FIR and Panchnama and further more no iota of evidence is led by the insurance company in support of its contention and in order to prove the contributory negligence on the part of driver of motorcycle, the contention raised by the learned advocate for the insurance company is not at all acceptable. The learned Tribunal has rightly appreciated the evidence on the record and rightly held the sole negligence on the part of the driver of the offending scooter i.e. opponent No.1. 11. Indisputably, the deceased was travelling as the pillion rider upon the aforesaid motorcycle No.GJ-2-AL-8529 and the said motorcycle was being driven by Mukeshbhai Prajapati and that therefore the contention raised by the learned advocate for the insurance company for fixation of contributory negligence on the part of the deceased is not at all arise and applicable to the facts and circumstances of the case. 12. We find that this case is governed on the principle of composite negligence and this is not at all the case of contributory negligence. In an accident involving two or more vehicles where a third party i.e. other than the drivers and/or owners of the vehicles involved, claims damages for loss or Page 5 of 10

C/FA/463/2014 JUDGMENT injuries sustained by them then in that case the compensation is payable in respect of the composite negligence of the driver of the vehicles. But, in an accident, if the claim is by one of the driver himself for the personal injuries caused by him or by the legal representative of one of the drivers on account of his death, then in that case, the issue would arise for fixation of contributory negligence on the part of such a driver who is involved in the accident. 13. Indisputably, in the present case, the deceased was not a driver of either of the vehicles involved in the accident. Consequently, therefore, there is no question of counting any contributory negligence on the part of the deceased as contended by the learned advocate for the insurance company. 14. Even otherwise also, as narrated above, this case is governed on the principle of composite negligence. In such a case, if wrongdoer is jointly and severally liable to pay the entire amount of the compensation and the claimants have a choice to proceed against all or any one of the tort feasor thereof. Furthermore, in the case of composite negligence the claimant need not establish the extent of responsibility of each wrongdoer separately nor is it necessary for the Court to determine the extent of liability of each one of the wrongdoer separately. Where ever a person suffers injury/caused death, partly due to the negligence on the part of driver of another vehicle and partly as a result of his own negligence, then in that case, the negligence on the part of the injured/deceased, who contributed to the accident, is known to be his contributory negligence. In such a case, the claim for Page 6 of 10

C/FA/463/2014 JUDGMENT damages of the injured/deceased, who is guilty of part of negligence, is not defeated merely due to the negligence on his part and the damages to that extent requires to be sliced down, in proportion to his contributory negligence. In the cases where two or more vehicles are involved in an accident, in that case, one of the drivers and/or his heirs claim compensation from the other drivers pleading the negligence on the part of the other drivers, and the other drivers deny the negligence on his or their part and plead that the injured claimant/the deceased himself was negligent, in such a case, it becomes absolutely necessary for the Tribunal/Court to consider as to whether the injured claimant/deceased was negligent or not. In such a case, it becomes the duty of the Tribunal/Court to decide as to whether in the alleged accident to what extent the injured/deceased is responsible for causing the accident and that is precisely called his contributory negligence. 15. In the present case, the deceased was the owner of the motorcycle No.GJ-2-AL-8529 involved in the accident and his heirs and legal representatives are the claimants and they are very much on the record and even otherwise also whenever the claimants have choice to proceed against the offending driver, owner and insurance company of the scooter involved in the accident and they have exercised that right to proceed against them then in that case the insurance company of the offending vehicle cannot contend for fixation of contributory negligence as the present case is governed on the principle of composite negligence. 16. We may now proceed to determine as to whether the Page 7 of 10

C/FA/463/2014 JUDGMENT compensation awarded by the learned Tribunal under various heads is just and fair compensation within the meaning of Section 168 of the Motor Vehicles Act, 1988 as well as the compensation is in consonance with the rule of thumb laid down by the Hon'ble Supreme Court in the decision of Sarla Verma (Supra). In order to assess the compensation, it is necessary to determine the age of the deceased. For the determination of the age of the deceased, the driving licence as well as the PAN card of the deceased discloses the date of birth of the deceased as 11.03.1982, whereas the date of accident is 30.05.2011. Consequently, therefore, the age of the deceased is proved to be 29 years at the time of accident. 17. The evidence on the record in the nature of return of income-tax came to be produced during the course of adducing the evidence which clearly indicates his income for the assessment year 2008-2009 as Rs.48,000/-; for the assessment year 2009-2010 as Rs.60,000/- and for the assessment year 2010-2011 as Rs.72,000/-. In that view of the matter, the income of deceased is proved to be Rs.72,000/- per annum. It appears that the learned Tribunal, while assessing the dependency benefit, fallen in error in not considering the prospective income as laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Supra) granting him addition of 50% as the deceased was aged about 29 years at the time of his death. In that view of the matter, 50% of the aforesaid annual income of Rs.72,000/- is required to be added, which comes to Rs. 1,08,000/- per annum as the prospective income (Rs.72,000 + Rs.36,000 = Rs.1,08,000/-). Out of the aforesaid prospective income, the personal and living expenditure of the deceased is required to be deducted. Page 8 of 10

C/FA/463/2014 JUDGMENT If the deceased would have alive, he would have spent nearly 1/4th of his income as laid down in the aforesaid decision of Sarla Verma (Supra) as there were four claimants. If 1/4th share from his income is deducted, the dependency annual income of the deceased comes to Rs.81,000/- (Rs.1,08,000/- minus Rs.27,000/- = Rs.81,000/-). As the deceased was aged 29 years at the time of accident, as per the decision of Sarla Verma (Supra), the multiplier of 17 is required to be applied. Thus, the amount of dependency would come to Rs.13,77,000/- (Rs.81,000/- x 17 = Rs.13,77,000/-). 18. Over and above the aforesaid amount of pecuniary damages, the original claimants are entitled to the non- pecuniary damages such as loss of consortium at Rs.10,000/-, loss of estate at Rs.10,000/- and Rs.5,000/- for funeral expenses. The judgment and award of the learned Tribunal is modified to that extent also. Thus, the claimants are entitled to the compensation of Rs. 14,02,000/- instead of Rs.9,60,000/- as awarded by the learned Tribunal. 19. For the reasons recorded hereinabove, the appeal is partly allowed. The judgment and award dated 18th December 2013 passed by the learned Tribunal in Motor Accident Claim Petition No. 468 of 2011 is hereby modified to the extent of enhancing the total amount of compensation from Rs. 9,60,000/- (Rupees Nine Lakhs Sixty Thousand only) to Rs.14,02,000/- (Rupees Fourteen Lakhs Two Thousand only). The rest of the judgment and award passed by the learned Tribunal is hereby confirmed. 20. The insurance company is directed to deposit the Page 9 of 10

C/FA/463/2014 JUDGMENT enhanced amount of compensation within a period of two months from today before the learned Tribunal. On such deposit, the learned Tribunal is directed to invest and disburse the said amount in terms of the award passed by it. (M.R.SHAH, J.) (R.P.DHOLARIA,J.) Jani Page 10 of 10