PASMINA WD/O PRAVINSINH PARMAR vs. ORIENTAL INSURANCE CO. TLD.

C/FA/3141/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 3141 of 2006 With CROSS OBJECTION NO. 159 of 2009 In FIRST APPEAL NO. 3141 of 2006

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 ? ================================================================ ORIENTAL INSURANCE CO. TLD.....Appellant(s) Versus PASMINA WD/O PRAVINSINH PARMAR & 6....Defendant(s) ================================================================ Appearance: MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1 MR KM PATEL, SR.ADV. WITH MR VARUN K.PATEL, ADVOCATE for the Defendant(s) No. 1 - 5 NOTICE SERVED for the Defendant(s) No. 6 - 7 RULE SERVED for the Defendant(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 13/01/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 18

C/FA/3141/2006 JUDGMENT 1.00. Feeling aggrieved and dissatisfied with the impugned Judgement and Award dated 17/2/2006 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhinagar in Motor Accident Claim Petition No. 118 of 1998, by which the learned tribunal has awarded Rs.27,75,760/- by way of compensation to the original claimants for the untimely death of the husband of the original claimant No.1, who at the time of accident and death was aged 29 years only. 2.00. Cross Objections have been preferred by the original claimants to increase the amount of compensation awarded by the learned tribunal. 3.00. Facts leading to the present appeal and the Cross Objections, in nutshell, are as under :- 3.01. That there was an accident between Maruti Esteem Car bearing registration No.GJ-6-K-6342 driven by the deceased Pravinsinh Vijaysinh Parmar and a truck bearing registration No.GJ-3-U-4515, owned by the opponent No.1 and driven by the opponent No.2 – Kalabhai Rathod. That the said truck was insured with the appellant herein – opponent No.3 – The Oriental Insurance Company Limited. That there was a head-on-collision between two vehicles wherein the deceased sustained injuries and succumbed to it. That the Maruti Esteem Car which was driven by the deceased was proceeding towards Ahmedabad and was on the correct side of the road and when the deceased reached near Sola, at that time the truck in question came in full speed absolutely on a wrong side which hit the Maruti Esteem Car from the front side and as a result of which the deceased sustained gravest injuries to brain and Page 2 of 18

C/FA/3141/2006 JUDGMENT heart and died instantaneously. That at the relevant time the original claimant No.3 - widow of the deceased was aged about 26 years only and one minor daughter aged 3 years and minor son aged 1 year. That the original claimants – widow, minor son and daughter and parents filed claim petition before the learned Motor Accident Claims Tribunal, Gandhinagar praying compensation of Rs.41,00,000/- under different heads. It was the case on behalf of the claimants that the deceased was aged 29 years and was earning Rs.25,000/- per month by way of doing business in the name and style of M/s.Sagar Builders. Considering the fact that at the time of accident, the deceased was Civil Engineer and active partner in M/s.Sagar Builders, and was also doing his personal business in construction field and had income of Rs.4,00,000/- lacs per annum, it was requested to award compensation of Rs.41,00,000/-. 3.02. The opponent Nos.1 and 2 - driver and owner though served did not file any Written Statement and/or contest the claim petition. The appellant – original opponent No.3 – Insurance Company filed its Written Statement at Ex.8 and totally denied the contents made in the claim petition. It was specifically denied by the Insurance Company that because of rash and negligent driving on the part of the opponent No.2 – driver of the truck, the deceased received fatal injuries. It is contended that even if the claimants prove their case, it is a case of contributory negligence and the accident was occurred due to negligence of the deceased Pravinsinh also who was driving his car in a rash and negligent manner. The opponent No.3 also denied the income of the deceased. That the learned tribunal framed the following Issues at Ex.16 :- Page 3 of 18

C/FA/3141/2006 JUDGMENT (1)Whether it is proved that the deceased died on account of rash or negligent driving on the part of the driver of the motor vehicle involved in the accident? (2)What amount, if any, the petitioners are entitled to by way of compensation and from which of the opponents? (3)What order and award. 3.03. On behalf of the claimants, original claimant No.1 - widow of the deceased came to be examined at Ex.23. The claimants produced on record the following documentary evidences vide list at Ex.18 :- Exh. Particulars of the document 24 Certified copy of the FIR LODGED BY Vimalbhai Pathubha dtd.11/7/1997. 25 Certified copy of the Panchnama of the scene of incident dtd. 11/7/1997. 26 Certified copy of the Postmortem report of Pravinsinh Vijaysinh Parmar done by Medical Officer of Govt. Hospital, Sola, Ahmedabad dtd. 11/7/1997. 27 Certified copy of Death Certificate issued by Govt. Hospital, Sola. 28 Certified copy of Death Certificate issued by Sola Gram Panchayat. 29 Certified copy of Registration of Marriage. 30 Copy of Insurance Policy of the offending vehicle Truck No.GJ-3-U-4515. 31 Certified copy of Birth Date Certificate of deceased Pravinsinh Vijaysinh Parmar issued by Headmaster of Swaminarayan School, wherein date of birth of deceased is mentioned as 30/7/1968. 32 Certified copy of School Leaving Certificate of deceased Pravinsinh Vijaysinh Parmar, wherein the date of birth of deceased is mentioned as 30/7/1968. 33 Original Diploma Certificate given to the deceased Pravinsinh by Technical Examinations Board. 34 Driving License in the name of deceased Pravinsinh issued by the Officer of RTO. Page 4 of 18

C/FA/3141/2006 JUDGMENT 35 Photographs of the accident. 36 to 40 Acknowledgment of the Income Tax Return for the Assessment Year 1994-95; 1995-96; 1996-97 and 1997- 98. 44 Original Deed of Partnership in the name of deceased Pravinsinh and others made by and between the parties in the year 1992. 55 Driving license of opponent No.2 – truck driver. 57 Written Arguments filed by the learned advocate Mr.Pandya for the petitioners. 58 Written Arguments filed by learned advocate Smt.Kapasi, for the opponent NO.3 Insurance Company. 56 Joint closing pursis given by the learned advocates for the parties. 3.04. That thereafter on appreciation of evidence, documentary as well as oral, the learned tribunal held the Issue No.1 in affirmative and held that the deceased died on account of rash and negligent driving on the part of the driver of the truck involved in the accident. On quantum, considering the average income of the deceased at the relevant time at Rs.2,40,503/- per annum and after deducting 1/4th i.e. Rs.60,126/-, the net income considered at Rs.1,80,378/- per annum and thereafter further deducting 1/3rd out of Rs.1,80,370/- towards personal expenses of the deceased, the tribunal held that the dependency would come to Rs.1,20,252/- per year and further adding Rs.2,40,504/- as prospective income, it would come to Rs.3,60,756/- and thereafter by dividing the same by 2, the tribunal held the future economical loss considering dependency at Rs.1,80,378/- and applying multiplier of 15, it is held that the claimants shall be entitled to Rs.27,05,670/- under the head of future economical loss. The tribunal awarded Rs.10,000/- towards loss of love and affection and also awarded Rs.10,000/- towards loss of consortium and love suffered by the widow of the deceased and also awarded Rs.50,000/- towards loss of expectation of life i.e. dependency Page 5 of 18

C/FA/3141/2006 JUDGMENT benefits. That by the impugned Judgement and Award the learned tribunal has held that the claimants shall be entitled to in all Rs.27,75,670/- with proportionate costs and interest at the rate of 7.5% per annum from the dater of claim petition till realisation under different heads as under :- Rs.27,05,670=00 Future Economical Loss. Rs.00,10,000=00 On account of loss of love and affection. Rs.00,10,000=00 Loss of consortium and loss suffered by the widow . Rs.00,50,000=00 Loss of expectation of life/Dependency Benefits. =========== Rs.27,75,670=00 Total. =========== 3.05. Being aggrieved by and dissatisfied with the impugned judgement and award passed by the learned tribunal in holding the driver of the truck 100% negligence, and in all awarding Rs.27,75,670/- by way of compensation to the original claimants, the appellant herein – original opponent No.3 – Insurance Company has preferred the present First Appeal. 3.06 The claimants have also preferred Cross Objections to increase the amount of compensation awarded by the learned tribunal. 4.00. Mr.Shelat, learned advocate appearing on behalf of the appellant – Insurance Company has vehemently submitted Page 6 of 18

C/FA/3141/2006 JUDGMENT that in the facts and circumstances of the case, the learned tribunal has materially erred in holding the driver of the truck involved in the accident as 100% negligent. It is submitted that in the facts and circumstances of the case, the learned tribunal ought to have held the deceased also negligent. 4.01. Mr.Shelat, learned advocate appearing on behalf of the appellant – Insurance Company has further submitted that as such considering the evidence on record it is a case of contributory negligence. It is submitted that as per the oral evidence of the driver of the truck (Ex.54) he came from Sarkhej and proceeded towards Gandhinagar side. It is submitted that according to the driver of the truck, due to road repairing work was going on, one diversion was given from Gujarat High Court which was 1.00 KM long. It is submitted that as per the deposition of the driver when he reached half way mark of such a diversion, he had seen one car coming from opposite direction with full speed and he tried to avoid the accident and he applied break but the Car dashed with the truck. It is submitted that in the cross examination also the driver of the truck has stated that there were 4 to 5 vehicles coming behind his vehicle and there was divider on his left side and therefore, he was not in a position to move his vehicle in his left side. It is submitted that the driver of the truck went on wrong side due to diversion given but still there was enough space available for oncoming opposite vehicle to move on road and no prudent man driving car in afternoon could not notice such a heavy vehicle coming from opposite side. It is submitted that while considering the issue with respect to negligence, the learned tribunal had escaped the aforesaid fact from its notice while holding the driver of the truck solely Page 7 of 18

C/FA/3141/2006 JUDGMENT negligence for causing accident. It is submitted that as such the claimants have not led any evidence to prove the sole negligence of the driver of the truck. It is submitted that therefore, considering the aforesaid evidence it is the case of contributory negligence. 4.02. Mr.Shelat, learned advocate appearing on behalf of the appellant – Insurance Company has further submitted that as per the doctrine of last opportunity, the deceased had an opportunity to avoid the accident by moving his vehicle to his left side rather dashing front side of the truck. Mr.Shelat learned advocate appearing on behalf of the appellant – Insurance Company has heavily relied upon the decision of the Hon'ble Supreme Court in the the case of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and others, reported in (2003) 8 SCC 731 (para 6 to 8). Relying upon the aforesaid decision it is submitted that in the aforesaid decision it has been held that in case of contributory negligence crucial question on which the liability depends would be whether either party could, by exercise of reasonable care have avoided consequence of others negligence. It is submitted that it is true that the driver of the truck went on wrong side on highway due to diversion, but assuming without admitting that there was no diversion and there was breach of any traffic regulations, still as per the evidence and deposition of the driver of the truck, the deceased had ample opportunity to avoid the accident. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision merely because there may have been breach of any traffic regulation, in absence of concrete, clinching, positive and legally acceptable material to fix the sole responsibility for the Page 8 of 18

C/FA/3141/2006 JUDGMENT accident only on such injured / victim, which are conspicuously absent on the facts and circumstances of the case, the liability of the appellant Corporation remains, though to what extent remains to be considered further. It is submitted that therefore, considering the facts and circumstances and there was head-on collision between the vehicles and considering the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar Vs. Bidya Dhar Datta, reported in (2006) 3 SCC 242 (para 12), it is requested to held the driver of both the vehicles are equally responsible for causing the accident. 4.03. On quantum, Mr.Shelat, learned advocate appearing on behalf of the appellant – Insurance Company has submitted that in the facts and circumstances of the case, the learned tribunal ought to have awarded future economical loss considering dependency at Rs.2,18,700/- per annum. It is submitted that though as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, looking to the age of the deceased at 29 years, multiplier of 17 can be applied. However, looking to the decision of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281, it is submitted that considering the multiplier of 17, the amount comes to Rs.37,17,900/- (Rs.2,18,700/- X 17 = 37,17,900/-) and if the said amount is invested at 7.5% as awarded by the learned tribunal then annual interest income would come to Rs.2,78,842/- which would be more than multiplicand and therefore, the learned tribunal has rightly applied multiplier of 15. Page 9 of 18

C/FA/3141/2006 JUDGMENT By making above submissions and relying upon above decision, it is requested by the learned advocate appearing on behalf of the appellant – Insurance Company to hold that the driver of both the vehicles were equally responsible for contributing the accident. 5.00. Present appeal is opposed by Mr.K.M. Patel, learned counsel appearing with Mr.Varun K.Patel, learned advocate appearing on behalf of the original claimants. It is submitted that as such no error has been committed by the learned tribunal in holding the driver of the truck sole negligent for the accident in question. 5.01. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the finding given by the learned tribunal and the quantum conclusion arrived at by the learned tribunal on holding the driver of the truck sole negligent is on appreciation of evidence and more particularly considering the Panchnama of the place of incident and surrounding circumstances which is neither perverse nor contrary to the evidence on record and the same is not required to be interfered with. 5.02. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the story of diversion put-forth by the driver of the truck on account of alleged road repairing work is an afterthought and not supported by contemporaneous evidence of Panchnama. 5.03. It is submitted that the driver of the truck was on Page 10 of 18

C/FA/3141/2006 JUDGMENT the wrong side and the manner in which the accident has taken place and the damage caused to the vehicle and on appreciation of evidence on record, more particularly Panchnama, the learned tribunal has rightly held the driver of the truck sole negligent. 5.04. On quantum and in support of the Cross-Objections filed on behalf of the original claimants, Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in awarding future economical loss / dependency considering the income of the deceased at Rs.1,80,378/- per annum. It is submitted that the learned tribunal has considered Rs.1,80,378/- as average income per year on the basis of the income of four assessment years (1994-95 to 1997-98). It is submitted that as such the average income of four year comes to Rs.2,40,503/- per annum. It is submitted that however, the learned tribunal without any basis deducted 1/4th of the aforesaid amount i.e. Rs.60,126/- and has taken average income at Rs.1,80,378/- per annum. It is submitted that out of the aforesaid amount, the learned tribunal has further deducted 1/3rd as personal expenses of the deceased. It is submitted that the average income of first three years (1994-95 to 1996-97) will come to Rs.2,78,254/- per annum. It is submitted that as per the said calculation, after paying income tax, the average income comes to Rs.2,78,254/- per annum. It is submitted that therefore, the learned tribunal has materially erred in considering the average income at Rs.1,80,378/- per annum and as such considering the average income at Rs.1,80,378/- would be on lower side. Page 11 of 18

C/FA/3141/2006 JUDGMENT 5.05. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in applying multiplier of 15. it is submitted that the age of the deceased was 29 years at the time of accident/death and therefore, considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), appropriate multiplier would be 17. 5.06. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in deducting 1/3rd of the income towards personal expenses of the deceased. It is submitted that looking to the number of claimants and the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), the learned tribunal ought to have deducted 1/4th of the income towards personal expenses of the deceased. 5.07. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in awarding Rs.10,000/- towards loss of love and affection and Rs.10,000/- towards expectation of life. Relying upon the decision of the Hon'ble Supreme Court in the case of Bimal Kanwar & Ors. Vs. Kishoredan & Ors., reported in 2013 ACJ 1441, it is submitted that the claimants shall be entitled to Rs.2 Lacs towards loss of live and affection to the widow and Rs.1 Lac to the mother etc. 5.08. Mr.K.M. Patel, learned counsel appearing on behalf of the original claimants has further submitted that the Page 12 of 18

C/FA/3141/2006 JUDGMENT learned tribunal has erred in awarding compensation with interest at the rate of Rs.7.5% per annum. Relying upon the decision of the Hon'ble Supreme Court in the case of Puttamma & Ors. Vs. K.L. Narayana Reddy & Anr., reported in 2013 (15) Scale 437, it is requested to award 12% interest. By making above submissions, it is requested to allow the Cross Objections and enhance the amount of compensation awarded by the learned tribunal submitting that in the unfortunate accident, the parents have lost their son aged 29 years and wife, who at the relevant time was aged 26 years, has lost her husband and the daughter at the relevant time, aged 4 years and son, who was borne after the accident, have their father and they have long period in life to depend on the amount of compensation as source of income. 5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and award passed by the learned tribunal and also gone through the entire evidence on record and have appreciated / re-appreciated the evidence on record. 5.01. At the outset, it is required to be noted that on appreciation of evidence, the learned tribunal has held the driver of the truck involved in the accident sole negligent for the accident. It is the case on behalf of the appellant - Insurance Company that the learned tribunal has materially erred in not holding the deceased contributory negligence on the theory of last opportunity to avoid the accident. However, it is required to be noted and as can be seen from the Panchnama of the place of accident that the driver of the truck Page 13 of 18

C/FA/3141/2006 JUDGMENT was absolutely on the wrong side. It appears that he was on the road which was his wrong side and dashed with the car of the deceased who was absolutely on the right side. It appears that the driver of the truck was so rash and negligent and in excessive speed that it hardly gave any time to avoid the accident by the deceased. The story put-forward by the driver of the truck that as there was a diversion on the other side which was his right side and therefore, he was on the road which was his wrong side. is concerned, it appears that the same appears to be an afterthought. Even otherwise the driver of the offending truck and Insurance Company have failed to establish the aforesaid. It is required to be noted that as such there was a divider between the two roads from Sarkhej to Gandhinagar and car was proceeding from Gandhinagar to Sarkhej-Ahmedabad and the driver of the car was absolutely on his correct side of the road, and the truck was coming from the opposite side which was the wrong side so far as the truck driver is concerned. The manner in which the accident has taken place and the damage has been caused to the Car and looking to the Panchnama of the place of accident, we are in complete agreement with the view taken by the learned tribunal on negligence and holding the driver of the truck sole negligent and we see no reason to interfere with the finding recorded by the learned tribunal holding the driver of the truck sole negligent, and we confirm the finding of the tribunal on the same. 5.02. Now, the next question posed for consideration of this Court is quantum of the amount of compensation awarded by the learned tribunal. It is required to be noted that by the impugned judgement and award the learned tribunal has Page 14 of 18

C/FA/3141/2006 JUDGMENT awarded total sum of Rs.27,75,670/- towards compensation for the death of the deceased under different heads as under :- Rs.27,05,670/- Towards future loss of income. Rs.00,10,000/- Towards loss of love and affection. Rs.00,10,000/- Towards loss of consortium. Rs.00,50,000/- Towards loss of expectation of life. Rs.27,75,670/- Total 5.03. From the impugned judgement and award passed by the learned tribunal in awarding Rs.27,05,670/- towards future economical loss / dependency, it appears that the learned tribunal has considered the average income of the deceased at Rs.1,80,378/- per annum. As per the Income Tax Returns for the Financial Years 1994-95- to 1997-98, the income of the deceased as under : Sr. No. Financial Year Income (Rs.) 1 1994-95 1,75,910/- 2 1995-96 2,56,888/- 3 1996-97 3,31,304/- 4 1997-98 1,97,908/- Total 9,62,010 5.04. That the tribunal has thereafter considered the average income of the deceased at Rs.2,40,503/-. However, thereafter has deducted 1/4th amount i.e. Rs.60,126/- and has considered th average income at Rs.1,80,378/-. It is not appreciable the deduction of 1/4th of Rs.2,40,503/- i.e. Rs.60,126/-. We do not appreciate the deduction of 1/4th of the income i.e. Rs.60,126/-. Therefore, as such the learned tribunal has materially erred in considering the average Page 15 of 18

C/FA/3141/2006 JUDGMENT income of the deceased at Rs.1,80,378/-. From the aforesaid table, average income of the deceased is required to be considered at Rs.2,40,500/- per annum. It is required to be noted that the deceased was a Civil Engineer and active partner in one M/s.Sagagar Builders and was also doing his own business in the field of construction and was also having agricultural income. Under the circumstances, the average income of the deceased at the time of accident / death is required to be considered at Rs.2,40,500/-. As the deceased at the relevant time was below 40 years, more particularly 29 years, 50% of the aforesaid is required to be added towards future prospects / prospective income. As there were four claimants, as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), only 1/4th of the aforesaid was required to be deducted towards personal expenses of the deceased, instead of 1/3rd as deducted by the learned tribunal. Considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), and considering the age of the deceased at 29 years, multiplier of 17 is required to be applied, instead of 15 applied by the learned tribunal. Accordingly, considering the average income of the deceased at Rs.2,40,500/- and thereafter, adding 50% towards prospective income i.e. Rs.1,20,250/- it would come to Rs.,3,60,750/- and thereafter deducting 1/4th towards personal expenses of the deceased, the dependency is required to be considered at Rs.2,70,563/- per annum, Rs.2,70,600/- rounded off. And thereafter applying multiplier of 17, the claimants shall be entitled to a total sum of Rs.46,00,200/- under the head of future economical loss. Considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), adding Page 16 of 18

C/FA/3141/2006 JUDGMENT Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss to the estate and Rs.5,000/- towards funeral expenses, the claimants shall be entitled to total sum of Rs.46,25,200/- towards compensation for the death of the deceased. To the aforesaid extent the impugned judgement and award passed by the learned tribunal is required to be modified and the Cross-objections filed by the original claimants is required to be allowed. 6.00. In view of the above and for the reasons stated above, First Appeal No.3141 of 2006 preferred by the Insurance Company is hereby dismissed and Cross-Objection No.159 of 2009 filed by the original claimants are partly allowed and the impugned Judgement and Award dated 17/2/2006 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhinagar in Motor Accident Claim Petition No. 118 of 1998, is hereby modified and it is held that the claimants shall be entitled to total compensation of Rs.46,25,200/- with interest at the rate of 7.5% from the date of claim petition till the judgement and award passed by the learned tribunal and interest at the rate of 9% per annum on the same for the period thereafter till its realisation. In the facts and circumstances of the case, there shall be no order as to costs. Sd/- (M.R.SHAH, J.) Sd/- (R.P.DHOLARIA,J.) Rafik. Page 17 of 18

C/FA/3141/2006 JUDGMENT Page 18 of 18