KAILASHBEN WD/O NARENDRASINH JASAVANTSINH VIHOL vs. MADANLAL DOLATRAMJI PURABIYA (VANAGAR)

C/FA/625/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 625 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA and 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 ? ========================================================== KAILASHBEN WD/O NARENDRASINH JASAVANTSINH VIHOL & 2 other(s) Versus MADANLAL DOLATRAMJI PURABIYA (VANAGAR) & 2 other(s) ========================================================== Appearance: MR. BK. RAJ(3794) for the Appellant(s) No. 1,2,3 MR GC MAZMUDAR(1193) for the Defendant(s) No. 3 MR HG MAZMUDAR(1194) for the Defendant(s) No. 3 SERVED BY RPAD (R)(66) for the Defendant(s) No. 1,2 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE B.N. KARIA

Date : 02/07/2019

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1. Feeling aggrieved and dissatisfied with the judgment and Page 1 of 11

C/FA/625/2010 JUDGMENT award dated 6th February 2009 passed by the Motor Accident Claims Tribunal (Main), Mahesana (hereinafter referrred to as “the Tribunal”) in Motor Accident Claim Petition No. 1248 of 1997, the appellant-original claimants have preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act” for the sake of brevity). 2. Following facts emerge from the record of the appeal: 2.1 On 23th July 1997, when Narendrasinh was driving Scooter, bearing registration No. GJ-9-A-6983, at about 11.30 a.m., between Vijapur to Himmatnagar, a truck bearing registration No. MP-14-G-7370, being driven in a rash and negligent manner, came from the opposite direction and dashed with his Scooter from the wrong side. Deceased Narendrasinh received serious injuries and succumbed to the same in the hospital. An FIR, being C.R.No. I-238 of 1997, was lodged with Ilol Outpost Police Station. The appellants-original claimants, thereafter preferred a claim petition under Section 166 of the Act before the Tribunal and claimed compensation of Rs. 40,00,000/=. 2.2 It was the case of appellants before the Tribunal that the deceased was working as a Junior Engineer with erstwhile Page 2 of 11

C/FA/625/2010 JUDGMENT Gujarat Electricity Board and drawing salary of Rs. 9045.68ps.. Over and above the same, the appellants relied upon documentary evidence, such as, pay slip Exh. 47; FIR Exhi.62 and Panchnama of the place of occurrence Exh. 53 and also examined one of the claimants ie., wife of the deceased at Exh. 43 and one Shri Ramanbhai Shivrambhai Parmar at Exh. 46, who was serving as Deputy Suprintendent in Gujarat Electricity Board at Vijapur. 2.3 The Tribunal, after appreciating the evidence on record, determined income of the deceased Narendrasinh as Rs. 7,000/- per month. After deducting 1/3rd towards personal expenses and applying multiplier of 16, the Tribunal awarded Rs. 9,02,400/- as compensation under the head of “dependency”. Over and above the same, the Tribunal further awarded a sum of Rs. 28,000/- as compensation under different conventional heads, including funeral expenses and thus, awarded total compensation of Rs. 9,30,400/- . 2.4 The Tribunal, however, after considering the panchnama as well as FIR, straightway has come to a conclusion that the deceased Narendrasinh himself was negligent to the extent of 15% and thus, after deducting 15% from the total Page 3 of 11

C/FA/625/2010 JUDGMENT compensation, the Tribunal awarded net compensation of Rs. 7,67,040/- with interest @ 7.5% per annum from the date of filing of claim petition till its realization, and thereby, partly allowed the claim petition. Being aggrieved by the said award, the present Appeal is preferred by the appellants-original claimants. 3. Heard learned advocate Mr. B. K. Raj for the appellants- original claimants and learned advocate Mr. H. G. Mazmudar for the respondent no.3-Insurance company. Though served, no one appears for and on behalf of the respondents No. 1 and 2. 4. Learned advocate Mr. B. K. Raj for the appellants-original claimants has raised following contentions: (1) Referring to pay slip Exhibit 47, Mr. Raj contended that the Tribunal has committed an error in determining income of the deceased at Rs. 7,000/- per month. According to Mr. Raj, out of total salary of Rs. 9045.68ps., only an amount towards Professional tax and other taxes, which amounts to Rs. 45/- only could be deducted from salary, and therefore, according to Mr. Raj, the Tribunal ought to have determined income of the deceased at Rs. 9,000/- per month. Page 4 of 11

C/FA/625/2010 JUDGMENT (2) Mr. Raj further contended that considering the panchnama of the place of occurrence Exh. 53, only because the body was found on middle of the road, the Tribunal, without assigning any reason has attributed negligency to the extent of 15% upon deceased Narendrasinh. Mr. Raj contended that considering the contents of FIR and Panchnama, which is admittedly prepared after the accident, the Tribunal has committed an error in coming to the conclusion that the deceased, as a driver of Scooter, was also negligent to the extent of 15%. According to Mr. Raj, upon appreciation of evidence on record, the Tribunal ought to have held driver of the truck solely negligent. On the aforesaid grounds, Mr. Raj contended that the appeal deserves to be allowed and the impugned judgment and award deserves to be modified. 5. Per contra, Mr. H. G. Mazmudar, learned advocate for the respondent No.3-Insurance Company has opposed the appeal. Mr. Mazmudar contended that the Tribunal has rightly assessed income of the deceased at Rs. 7,000/-. Mr. Mazmudar, upon referring to the pay slip Exh.47, the same also includes Special Allowance per month and such Page 5 of 11

C/FA/625/2010 JUDGMENT allowances cannot form part of monthly income. Mr. Mazmudar relied upon panchnama Exh. 53, wherein body of the deceased was found on the middle of the road. Therefore, Tribunal has rightly come to a conclusion that the deceased- driver of Scooter was also negligent. According to Mr. Mazmudar, the Tribunal ought to have held that the drivers of both the vehicles were equally negligent for the accident. 6. Mr. Mazmudar, learned advocate for the respondent no.3-Insurance Company has candidly submitted that the conventional amount may be awarded, as per judgment of the Apex Court in case of National Insurance Company Limited Vs. Pranay Shetty & Ors., reported in (2017) 16 SCC 680. Mr. Mazmudar contended that except that, no modification is required in the impugned judgment and award and as the appeal being meritless, it deserves to be dismissed. 7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 8. Having considered the submissions and also perused the record and proceedings, as far as income is concerned, the Tribunal has after some guess work, determined the same as Page 6 of 11

C/FA/625/2010 JUDGMENT Rs. 7,000/- per month. The total salary as per salary certificate reads as under: Salary certificate of Shri N.J. Vihol, Jr. Engineer 220KV Vijapur S/S, for the period of last month June 1997. EARNING SIDE DEDUCTION SIDE BASIC PAY 2480.00 CPF 683.00 SP.P.PAY 50.00 V.P.F. 683.00 D.A. 4301.00 LIP. 272.00 MEDI. ALL. 10.00 P.TAX 40.00 I.R. 253.00 WTR. TAX 5.00 SS ALLOW. 1024.65 H.R.R. 80.00 SP. ALLOW. 240.00 VEHI. ADV. 123.00 (42-65) OTHER EARNINGS 0.13 FOOD ADV. 100.00(2/10) F.B. 379.50 FESTI.ADV. 60.00 (7/10) C.S.R.ALLO.W 307.40 HDFC LOAN 2874.00(14/180) OTHER DEDU. 0.78 SRDBFS_II 75 TOTAL EARNINGS 9045.68 TOTAL DEDUCTIONS 4995.78 9. As far as allowance is concerned, the same is part and parcel of monthly income of a Junior Engineer and the said allowances are given as some special work is handed over to Jr. Engineer, which is not specially assigned to him as a part of duty. 10. On perusal of pay slip Ex. 47, income would be gross salary and deduction, which upon re-appreciation of the evidence in form of Certificate Ex. 47, would come to Rs. 9,000/- per month. However, such income may be construed Page 7 of 11

C/FA/625/2010 JUDGMENT to be gross income and the same would be subjected to 10% deduction towards Income tax, and hence, the income of deceased would be as under. Having come to the aforesaid conclusion, appellants-original claimants would be entitled to compensation under dependency benefits, as under: Rs. 9,000/- Income per month + Rs. 4,500/- 50% Prospective Income as per judgment of Pranay Sheety (Supra) = Rs. 13,500/- Income per month -Rs. 4,500/- One third towards personal expenses of the deceased = Rs.9,000/- Income per month X 12 Yearly = Rs. 1,08,000/- Yearly Income - 10,800/- 10% Income Tax = Rs. 97,200/- Total Income 11. It is not in dispute that at the time of accident, age of the deceased was 31 years and following decision of the Hon’ble Apex Court in case of Sarla Verma and others vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121, appropriate multiplier would be 16. Accordingly, the appellants would be entitled to compensation under the head of “loss of dependency” to the tune of Rs. 15,55,200/- Page 8 of 11

C/FA/625/2010 JUDGMENT 12. Over and above the same, following the ratio laid down in the case of Pranay Shetty (Supra), the appellants-original claimants would be entitled to Rs. 70,000/- under different conventional heads; including funeral expenses. 13. We have gone through panchnama of the place of occurrence Exh. 53. It is a matter of fact that the driver of the truck, who is an eye witness, has not been examined. From the very contents of panchnama, it clearly appears that it may be prepared much after the accident occurred. Considering the position of the truck, damaged to the truck and also damaged to the Scooter, driven by the deceased, coupled with injuries sustained by the deceased, it is quite evident from the Post Mortem Note Exh. 55 that the impact was so severe. That, the deceased was almost crushed, even referring to the column No. 17 of the Post Mortem Note, wherein, it is noticed that face was crushed with tongue protruded, brain material has come out because of crush in cranial cavity and post mortem note further shows that head crush injury was found at the palvic region with open intestine and mesertary. Even though, the panchnama records that the brake marks were observed, the manner in which accident occurred and impact of the same is Page 9 of 11

C/FA/625/2010 JUDGMENT found to be so severe, that it can very well be presumed that the the Truck was being driven in an excessive speed and because of the speed, no time was left for the deceased to save his body or skin. We found that the Tribunal has given cogent and valid reasons while coming to the conclusion that the driver of Scooter-deceased Narendrasinh was negligent to the extent of 15%. We, therefore, upon re-appreciation of the evidence on record as a whole and more particularly, the panchnama Exhibit 53 and Post mortem Note Ex. 55, come to a conclusion that the driver of truck was solely responsible, more particularly, it being a very heavy and large vehicle in compare to two wheeler vehicles. The respondent No.3- Insurance Company has not even examined truck driver, who was an eye witness of the accident, and therefore, the truck driver was solely responsible for the accident. 14. Consequently, the appeal is allowed. Impugned judgment and award is modified to the aforesaid extent. The appellants- original claimants would be entitled to total compensation of Rs. 16,25,200/- with interest @ 7.5% per annum from the date of filing of claim petition till its realization. As the Tribunal has awarded Rs. 7,67,040/-, the appellants-original Page 10 of 11

C/FA/625/2010 JUDGMENT claimants would be entitled to additional compensation of Rs. 8,58,160/- with proportionate interest and cost. The respondent-Insurance Company shall deposit the additional amount of compensation, as awarded by this Court with proportionate interest and cost, within 8 weeks from the date of receipt of this judgment. Rest of the impugned award stands unaltered. However, there shall be no order as to the costs in this Appeal. Registry is directed to send back record and proceedings to the Tribunal forthwith. (R.M.CHHAYA, J) (B.N. KARIA, J) K. S. DARJI Page 11 of 11