ORIENTAL INSURANCE CO. LTD. vs. KUBRABIBI WD/O. YAKUBMOHAMMED SINGHI

C/FA/5348/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 5348 of 2007

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 ? ============================================= ORIENTAL INSURANCE CO. LTD. Versus KUBRABIBI WD/O. YAKUBMOHAMMED SINGHI & 8 other(s) ============================================= Appearance: MR R G DWIVEDI(6601) for the Appellant(s) No. 1 MR MA KHARADI(1032) for the Defendant(s) No. 1,2,3,4,5 MR MAULIK J SHELAT(2500) for the Defendant(s) No. 9 RULE SERVED(64) for the Defendant(s) No. 6,7,8 ============================================= CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 05/03/2019

ORAL JUDGMENT 1. The present appellant, who was original opponent no.3 in MACP No.1337 of 2001, has challenged the judgment and award dated 13.03.2007 passed by the Motor Accident Claims Tribunal (Aux.), Fast Track Court No.4, Godhra. Page 1 of 12

C/FA/5348/2007 JUDGMENT 2. The short facts of the present case are as under: 2.1 That, the petitioners/original applicants have filed claim petition before the Motor Accident Claims Tribunal at Panchmahals stating that on 14.11.2000, the deceased Yakub Mohmmad Sindhi was going from Godhra to Baroda in his own Jeep, bearing registration No. GJ-17-A-8804. The jeep was driven by its driver very carefully and in moderate speed on the correct side of the road. When the said jeep was reached near Kotambi Bus Stand at about 20.30 p.m., the driver stopped jeep on the correct side of the road for passing urinal of deceased Yakubbhai. When the deceased descended from jeep and his left leg on the ground, at that time, opponent No.1 came from opposite side driving tempo, bearing registration No. GJ-7-X-6063 in rash and negligent manner with excessive speed and lost control over his tempo. The tempo dashed with the jeep and left leg of the deceased sustained serious injuries. That, the accident was occurred due to rash and negligent driving of the opponent No.1. 2.2 That, the deceased was aged about 35 years at the time of accident and by working as a mechanical, was earning Rs.5000/- per month. That, the deceased was owner of the jeep, bearing registration No. GJ-17-A-8804 and was doing Page 2 of 12

C/FA/5348/2007 JUDGMENT transport business. From the said business, he was earning Rs.3000/- per month. That, the petitioners being legal heirs of the deceased requested to pass an award for sum of Rs.13,61,000/- by way of compensation along with interest @ 21% p.a. and costs from the date of accident till realization. 2.3 That, the opponent No.3 filed its written statement vide Exh.24 denying all the contentions of the accident, involvement of the motor vehicles, negligency part as alleged by the petitioners, age, income of the deceased or sustaining any injuries, the treatment taken by the deceased as indoor and outdoor patient, entitlement of amount for compensation as prayed by them. As per the contentions, opponent No.1 was driving vehicle carefully and was not at all responsible for the accident. That, the deceased construed the accident and therefore, amount of compensation was required to be deducted to the extent of his contributory negligency. Ultimately, it was requested to dismiss the claim petition with costs. 2.4 The opponent No.5- United India Insurance Co. Ltd. filed its written statement vide Exh.26. That, all the averments made in the application were denied except those specifically admitted. It was contended that the opponent no.4 was Page 3 of 12

C/FA/5348/2007 JUDGMENT driving his jeep, bearing registration No. GJ-17-A-8804 in a modest and moderate speed on the correct side of the road as per the traffic rules but the opponent No.1 came driving his tempo bearing registration No. GJ-7-X-6063 in rash and negligent manner with an excessive and uncontrollable speed and lost control over his tempo and dashed with the jeep for no fault on the part of the opponent no.4. That, the claim amount is highly exaggerated and the petitioners are not entitled to claim for the said amount. That, under Section 3 of the Interest Act, 1978, in case of damages, the Court should allow interest at a rate not exceeding the current rate of interest. That, opponent no.5 insurance company is not liable for any amount of compensation. That, the applicant himself was the owner of the motor vehicle jeep, bearing registration No. GJ-17-A-8804 and hence, owner of the motor vehicle cannot claim any compensation against the insurance company of the same vehicle. Hence, it was requested to dismiss the petition with costs. 2.5 The learned tribunal framed issues vide Exh.23 on 13.07.2006. After recording evidence, the learned tribunal was pleased to pass an award of Rs.11,87,000/- along with interest @7.5% per annum from filing of the petition with proportionate costs holding liability of opponent nos.1 to 3 Page 4 of 12

C/FA/5348/2007 JUDGMENT and dismissed the claim petition against the respondent nos.4 and 5 by order dated 13.03.2007. 3. Heard learned advocate Mr. R.G.Dwivedi for the appellant, learned advocate Mr. M.A.Kharadi for respondent Nos.1, 2, 3, 4, 5 and learned advocate Mr. Maulik J Shelat for respondent No.9. No arguments were advanced by rest of the respondents though, served with the notice. 4. Learned advocate for the appellant submitted that the judgment and award as well as conclusion of the tribunal that the accident was occurred due to sole negligency of the driver of the tempo, bearing registration No.GJ-7-X-6063 is clearly against the evidence on record. That, the accident was occurred due to sole negligency of the deceased driver of the Jeep bearing registration No.GJ-17-A-8804. That, in alternative it was submitted that the deceased driver of the jeep, bearing registration No.GJ-17-A-8804 was more negligent than the tempo driver. That, awarding compensation of Rs.11,87,000/- together with proportionate costs and interest @ 7.5% p.a. from the date of application till realization is completely on wrong side. However, there is no sufficient evidence of income of the deceased, tribunal has committed error in considering the monthly income of Page 5 of 12

C/FA/5348/2007 JUDGMENT Rs.6000/- of the deceased as well as prospective income at Rs.9000/- per month. That, applying multiplier of 16 was contrary to the settled legal principles of the Hon’ble Apex Court. That, the award passed by the tribunal has resulted in miscarriage of justice, hence, it was requested by the learned advocate for the appellant to quash and set aside the impugned judgment and award or modify the same. 5. Learned advocate for the respondent nos.1,2,3,4,5 strongly objected the arguments advanced by the learned advocate for the appellant and supported the findings arrived at by the tribunal. It was argued that the income of the deceased was clearly proved by the petitioners by examining witnesses at Exh.49 as well as Exh.51 and documents of income vide Exh.50 as well as Exh.52. That, the deceased was earning Rs.5000/- per month as he was working as mechanical in the garage. That, he was owner of the jeep and by transporting passengers or goods, he was earning additional amount of Rs.3000/- per month. That, the tribunal has committed no error in assessing income of the deceased at Rs.6000/- per month and prospective income as well. That, there was no negligency on the part of the deceased or the driver of the jeep in causing the accident. That, the concurrent findings arrived at by the tribunal should not be Page 6 of 12

C/FA/5348/2007 JUDGMENT disturbed by this Court. Hence, it was requested by learned advocate for the original petitioners/respondent Nos.1 to 5 to dismiss the appeal with costs. 6. Learned advocate for the respondent No.9 supported the judgment and award passed by the tribunal and argued that there was no negligency on the part of jeep driver in causing the accident. That, only driver of the tempo was responsible for causing the accident. That, the jeep driver was driving his vehicle on the left side of the road in modest and moderate speed. That, driver of the tempo drove his vehicle in rash and negligent manner on wrong side and lost control on the tempo and dashed to the jeep and legs of the deceased sustained serious injuries. That, the income of the deceased was clearly proved by the petitioners as well as negligency part of the driver of the tempo in causing the accident. Hence, it was requested to dismiss the appeal. 7. Having perused the record of the tribunal as well as arguments advanced by the learned advocates for the respective parties, it appears that the wife of the deceased namely Kubrabibi was examined vide Exh.47 before the tribunal. She has clearly stated that the driver of the tempo bearing registration No. GJ-7-X-6063 drove his vehicle in rash Page 7 of 12

C/FA/5348/2007 JUDGMENT and negligent manner on the date of accident i.e. 14.11.2000 while driver of the jeep was drove his vehicle in left side of the road and on moderate speed. It was further stated that the opponent No.1 lost control over the tempo and suddenly went on the wrong side and dashed with the jeep. As a result, left leg of the deceased injured. She has further stated that the complaint was lodged against the opponent No.1 before the Vaghodiya Police Station, being I. C.R. No.203 of 2000. That, on 15.11.2000, post moterm of the dead-body was carried out by the doctor. She has also stated about the age of the deceased, income of the deceased and loss caused to the petitioners. In the cross examination, she has admitted that no evidence was produced by her showing that the deceased was working as mechanical or he was engaged in business of transporting passenger or goods in his own jeep. 8. It appears from the record of the tribunal that one another witness namely Altaf vide Exh.49 has supported the contentions of the petitioners showing that he was running motor garage at Godhra on Ahmedabad road namely Mackwell Motor Garage. The deceased- Yakubbhai Mohammad Singhi was working as mechanical in his garage. He was paid Rs.5000/- per month as salary. He has produced income certificate vide Exh.50. In his cross examination, he Page 8 of 12

C/FA/5348/2007 JUDGMENT has admitted that the garage was registered with Godhra Nagarpalika. He was willing to produce registration certificate of the garage. That, register of marking presence of the employee was maintained by him but it was not produced by him as it was burnt. That, he was not paying income tax. That, three mechanical workers were working in his garage and other mechanical were paid salary of Rs.1500/- per month and Rs.2000/- per month. That, no receipt of the salary was taken but it was entered in to the register. That, income certificate was produced vide Exh.50 issued on behalf of Mackwell Motor Garage certifying that the deceased was working as mechanical in the garage and was paid Rs.5000/- as salary per month. 9. That, another witness namely Badruddin was examined vide Exh.51. He has also supported the case of the petitioners stating that one motor vehicle jeep was hired by him for transportation of labours and deceased was paid Rs.3000/- per month for the same. He has also produced certificate vide Exh.52 showing that amount of Rs.3000/- was paid to the deceased. This witness in his cross examination has admitted that when the jeep was hired, written agreement was executed but it was not available with this witness. That, account books were maintained by this witness showing the Page 9 of 12

C/FA/5348/2007 JUDGMENT amount but he was not hopeful to produce the same. As per the documents vide Exh.52 sum of Rs.2200/- was paid but he was not hopeful to produce the receipt. That, the deposition of the witness appears to be doubtful of hiring motor vehicle jeep under the ownership of the deceased for transporting labours and paying Rs.3000/- per month to him. That, no evidence of ownership of the motor vehicle jeep bearing registration No. GJ-17-A-8804 was produced by the petitioners showing ownership of the deceased. 10. This Court is of the view that such evidence of income cannot be accepted or relied upon as the witnesses were not willing to produce account books wherein entry of amount was made as well as receipt of amount paid to the deceased. That, these witness have tried to suppress the material facts and the documents, thus they cannot be treated as trust worthy witness. They have tried to support the statement of the petitioners with a purpose to increase the income of the deceased only. The another certificate vide Exh.50 produced later on by the witness Altaf showing income of Rs.5000/- per month of the deceased, cannot be believed. This witness has admitted in his cross examination that three mechanical workers were working in his garage and other mechanicals were paid Rs.1500/- and Rs.2000/- per month. That, it was Page 10 of 12

C/FA/5348/2007 JUDGMENT difficult to accept the statement of the witness that the deceased Yakubbhai was paid Rs.5000/- per month by way of salary. That, the maximum salary of the deceased, under the circumstances, can be considered as Rs.2000/- per month only. The tribunal has committed error in considering the income of the deceased at Rs.6000/- per month including prospective income. 11. This Court is of the view that income of the deceased Yakubbhai can be considered as Rs.3000/- per month including prospective income. That, multiply by 12, amount would come to Rs.36,000/-. As there were five petitioners, ¼th deduction by way of personal expenses of the deceased, would require to be deducted and that amount would come to Rs.9000/- That, after deducting ¼th the personal expense, net amount would come to Rs.27,000/-. That, the tribunal has considered 16 multiplier considering the age of the deceased between 35 to 40 years. If we consider the age of the deceased as per the Post moterm report, the petitioners shall be entitled to claim 15 multiplier as per the settled principle in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009 (6) SCC 121. By applying multiplier of 15, petitioners are entitled to claim Rs.4,05,000/- plus Rs.70,000/- by way of conventional amount of compensation Page 11 of 12

C/FA/5348/2007 JUDGMENT that would come to Rs.4,75,000/- only. That, the tribunal has awarded Rs.11,87,000/- as compensation. Therefore, the judgment and award passed by the tribunal requires to be modified and the petitioners shall be entitled to claim for an amount of Rs.4,75,000/- along with interest as awarded by the tribunal. 12. The present appeal is hereby partly allowed. The claimant shall be entitled to claim of Rs.4,75,000/- from the present appellant along with interest @ 7.5% p.a. as awarded by the tribunal. Learned advocate for the appellant has submitted that the awarded amount was deposited by the appellant before the tribunal. The excessive amount shall be refunded to the appellant. The interest accrued on the deposited amount shall be paid to the claimants. The impugned judgment and award passed by the tribunal dated 13.03.2007 shall be modified to this extent. 13. Record and Proceedings be sent back to the learned tribunal forthwith. (B.N. KARIA, J) NEHA Page 12 of 12