Gujarat State Road Transport Corporation v. Legal Heirs and Mother of Decddigant Kishorkumar Dhuleshiya
2014-09-10
BHASKAR BHATTACHARYA
body2014
DigiLaw.ai
JUDGMENT : Bhaskar Bhattacharya, J. This appeal is at the instance of the substituted claimant in a proceedings under section 166 of the Motor Vehicles Act, 1988 and is directed against award dated 22nd June 2004 passed by Motor Accident Claims Tribunal [Aux.], 12th Fast Track Court, Rajkot in MACPs No. 1007 of 1998 by which the Tribunal awarded a sum of Rs.28,000/- as compensation for the injuries suffered by minor Nilay aged 3 years who died a natural death on 27th April 2003 during the pendency of this proceedings. 2. After hearing the learned counsel for the parties and after going through the materials on record, I find that in the past, at the instance of the original claimant, viz. Nilay, the Tribunal below, by order dated 25th November 1998 passed an award of Rs.25,000/- in a proceedings under section 140 of the MV Act arising out of the selfsame accident, in favour of the original claimant. The appellant before this Court has not only accepted the said award but also paid the awarded sum in favour of Nilay. Therefore, since the amount awarded under section 140 of the MV Act is deductible from the final award passed under section 166 of the MV Act, the real dispute in this appeal is to the extent of Rs.3000/- only. It is now well settled law that the award passed under section 140 of the Act is appealable one (See Yallawwa v. National Insurance Co. reported in AIR 2007 SC 2582 ), and for not preferring any appeal, the said award has attained finality. 3. Therefore, this appeal being First Appeal No. 488 of 2005 is not maintainable being hit by the provisions contained in section 173 (2) of the MV Act as the subject matter of dispute is less than Rs.10,000/- and the same stands dismissed accordingly on that ground alone. 4. Since I have dismissed First Appeal No. 488 of 2005, the registry is directed to forthwith transmit, if not already transmitted, Rs.25,000/- deposited by the appellant under section 173 (1) of the MV Act at the time of preferring the appeal with interest accrued thereon, if any. Out of the said amount of Rs.25,000/-, the Tribunal is directed to disburse an amount of Rs.3000/- with proportionate interest accrued thereon, if any, to the claimant of MACP No. 1007 of 1997, upon proper verification, by accounts payee cheque.
Out of the said amount of Rs.25,000/-, the Tribunal is directed to disburse an amount of Rs.3000/- with proportionate interest accrued thereon, if any, to the claimant of MACP No. 1007 of 1997, upon proper verification, by accounts payee cheque. The remaining amount of Rs.22,000/-, with proportionate interest accrued thereon, if any, be refunded to the appellant -owner of the offending vehicle. 5. First Appeal No. 488 of 2005 is, thus, disposed of. No order as to costs. First Appeals No. 485 of 2005, 486 of 2005 & 487 of 2005 6. These three appeals are directed against a common award dated 22nd June 2004 passed by Motor Accident Claims Tribunal [Aux.], 12th Fast Track Court, Rajkot in MACPs No. 1004 of 1997, 1005 of 1997, and 1006 of 1997. These appeals are taken up together as these appeals are directed against a common award by which the learned Motor Accident Claims Tribunal disposed of the aforesaid three and one another Motor Accident Claim Petitions under section 166 of the Motor Vehicles Act arising out of the selfsame accident. 7. It appears from the record that on 4th January 1997, one of the victims, Kishorekumar, since deceased, who happens to be husband of one Heenaben Kishorbhai Dhuleshiya, the claimant of MACP No. 1006 of 1997 [First Appeal No. 487 of 2005], was driving a motor cycle with three pillion riders, who were his wife Heenaben and two minor children, Digant and Nilay, aged 9 years and 3 years respectively. At that time, due to head-on collision between the motor cycle and an ST Bus coming from the opposite direction, Kishorekumar and his minor son, Digant aged 9 years, died and Heenaben, the wife, and the other minor son, Nilay aged 3 years, were injured. 8. Consequently, four different claim petitions, being M.A.C.P. No. 1004 of 1997, 1005 of 1997, 1006 of 1997 and 1007 of 1997, were filed claiming compensation for the death of the husband and one minor son aged 9 years and for injuries suffered by the wife and another minor son aged 3 years. 9. It may be noted that the minor son, Nilay, the claimant of MACP No. 1007 of 1997, died a natural death on 27th April 2003, during the pendency of the claim-petition.
9. It may be noted that the minor son, Nilay, the claimant of MACP No. 1007 of 1997, died a natural death on 27th April 2003, during the pendency of the claim-petition. In spite of that, the said proceeding continued by substituting his mother in his place and the Tribunal awarded a sum of Rs.28,000/- as compensation. 9.1 So far as MACP No. 1004 of 1997 is concerned, the Tribunal awarded Rs.1,70,400/- for the death of minor son, Digant, aged 9 years. 9.2 As regards MACP No. 1005 of 1997, the Tribunal awarded a sum of Rs.15,60,000-00 as compensation for the death of Kishorekumar, who was driving the motor cycle. 9.3 In MACP No. 1006 of 1997, the Tribunal awarded Rs.80,700-00 for the injuries suffered by Heenaben, by taking her disability at 13%. 10. However, in all these claim-applications, the contributory negligence of the driver of the motor cycle, Kishorekumar, was taken at 20% and consequently, the respective figures of compensation stated above were arrived at after deducting 20% from the total compensation assessed by the Tribunal below on the basis of materials on record. 11. Being dissatisfied, four different appeals have been preferred before this Court by the owner of the offending vehicle, the Gujarat State Road Transport Corporation. First Appeal No. 485 of 2005 is directed against the award passed in MACP No. 1004 of 1997, First Appeal No. 486 of 2005 is against the same passed in MACP No. 1005 of 1997, First Appeal No. 487 of 2005 is against the award of MACP No. 1006 of 1997, and, First Appeal No. 488 of 2005 is against the award of MACP No. 1007 of 1997. As stated above, I have already disposed of First Appeal No. 488 of 2005. 12. Ms. Bhatt, the learned advocate appearing on behalf of the appellant strenuously contended before this Court that there being a head-on collision between the bus owned by her client and the motor cycle, the finding of the Tribunal below that the contributory negligence on the part of the driver of the motor cycle was only to the extent of 20% cannot be supported. Ms. Bhatt contends that in the facts of the present case, the negligence of the drivers of both the vehicles should be in the ratio of 50 : 50. 13.
Ms. Bhatt contends that in the facts of the present case, the negligence of the drivers of both the vehicles should be in the ratio of 50 : 50. 13. It has come on the record that the widow of the victim has given evidence, and she also happens to be an eyewitness. In her evidence, she has asserted that her husband was not at all negligent in the accident and that it was the driver of the ST Bus who was fully responsible for causing the accident. I find from the materials on record that in the criminal proceedings, the Conductor of the ST bus had admitted that the bus was running late, and, therefore, the driver was trying to make up the time by fast driving. Secondly, it appears from the evidence on record that the appellant before us itself has initiated departmental proceedings against the driver of the bus for the accident in question and has also inflicted punishment of stoppage of increment for two years. The driver of the bus himself deposed in this proceeding, and in his examination-in-chief, he asserted that it was the motor cycle which collided with the bus from behind - a blatant false story made out in his deposition - but in the cross-examination, he was constrained to admit that the accident was a head-on collision. In my opinion, the Tribunal below rightly decided not to place any reliance upon the evidence of a pathological liar. I am of the view that if a person in the employment of a public transport system goes to the extent of making such a deliberate false statement, he should not be believed, and the Tribunal below was justified in not accepting his evidence. However, it appears that the Tribunal below, in spite of such wrong statement on the part of the driver of the errant bus, for the reasons best known to it, attributed 20% negligence to the deceased. Be that as it may, as the claimants have not filed any counter appeal or cross-objections, there is no scope of enhancing the award in this appeal at the instance of the owner of the vehicle. 14. Thus, I reject the contention of Ms.
Be that as it may, as the claimants have not filed any counter appeal or cross-objections, there is no scope of enhancing the award in this appeal at the instance of the owner of the vehicle. 14. Thus, I reject the contention of Ms. Bhatt that negligence of the drivers of the two vehicles should be attributed at the ratio of 50:50, I now propose to go to the findings as regards the assessment of compensation in respect of the three appeals. 15. First Appeal No. 485 of 2005, arising out of MACP No. 1004 of 1997, was filed claiming compensation for the death of the minor Digant, aged 9 years. The Tribunal considered the notional income of the deceased minor to be Rs.1500/- and after deducting ?rd there from, came to the conclusion that the monthly dependency loss would be Rs.1000/-, i.e. yearly Rs.12,000/-, and applying thereto a multiplier of 15, awarded a sum of Rs.1,80,000/- under the head of dependency loss. To this, the Tribunal further awarded Rs.5000/- towards medical expenses, Rs.5000/- towards pain, shock and suffering, Rs.20,000/- under conventional heads, loss of love and affection etc., and Rs.3000/- towards funeral expenses, thus making up the total to Rs.2,13,000/-. Thereafter, the Tribunal deducted 20% towards negligence of the motor cycle driver and thus, awarded compensation of Rs.1,70,000/-. 16. The present proceeding being one under section 166 of the MV Act and 80% negligence having been attributed to the offending ST bus, in my opinion, the price of the life of a boy aged 9 years, for no negligence on his part but for 80% negligence on the part of the offending bus driver, should in no case be less than Rs.1.70,000/-, when even in a proceedings under section 163A of the MV Act where negligence is not required to be proved, the compensation awardable would be near about Rs.1,70,400/-. In a case where 80% negligence of the offending vehicle is proved, the award of Rs.1,70,000/- is just and reasonable and does not require any interference. I, thus, find no merits in F.A. No. 485 of 2005, and the same deserves to be dismissed. 17.
In a case where 80% negligence of the offending vehicle is proved, the award of Rs.1,70,000/- is just and reasonable and does not require any interference. I, thus, find no merits in F.A. No. 485 of 2005, and the same deserves to be dismissed. 17. So far as F.A. No. 486 of 2005 arising out of MACP No. 1005 of 1997 is concerned, it appears from the records that the deceased aged 37 years was a B.E. Civil, having obtained First Class and was working as Assistant Engineer in the Irrigation Department of the State Government, drawing monthly salary of Rs.9662/-. The Tribunal considered the prospective income at Rs.15,000/- and deducting Rs.5000/- there from being ?rd towards personal expenses, came to the conclusion that the dependency loss would be Rs.10,000/- a month, i.e. Rs.1,20,000/- per annum. Applying thereto a multiplier of 16, the Tribunal came to the conclusion that the dependency loss would be Rs.19,20,000/-. The Tribunal also awarded Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of love and affection and Rs.10,000/- towards transportation, treatment, funeral expenses etc and thus came to the figure of Rs.19,50,000/-, and thereafter deducting Rs.3,90,000/- towards 20% negligence of the deceased, awarded a sum of Rs.15,60,000/-. 18. From the evidence on record, it clearly appears that the deceased was earning monthly salary of Rs.9662/-. Applying the principles laid down by the Supreme Court in the case of Sarla Verma v. DTDC reported in (2009) 6 SCC 121 , to find out prospective income, 50% of the monthly income should be added to the said amount. Thus, the prospective income of the deceased would be Rs.14,493/- [Rs.9662 + Rs.4831 = Rs.14,493]. From the amount of Rs.14,493/- ¼th should be deducted towards personal expenses as four persons were dependent on the deceased. Thus, deducting Rs.3623/- being ¼th towards personal expenses, the net monthly dependency loss would be Rs.10,870/-, i.e. Rs.1,30,400/- per annum. Since the deceased was 37 years old, in accordance with the principles laid down in the case of Sarla Verma v. DTDC [supra], the appropriate multiplier is 15. Consequently, applying the multiplier of 15, the amount awardable under the head of dependency loss would be Rs.19,56,600/-. Deducting 20% towards self negligence, the net amount of dependency loss would be Rs.15,65,280/-. To this, further conventional amounts are also required to be added.
Consequently, applying the multiplier of 15, the amount awardable under the head of dependency loss would be Rs.19,56,600/-. Deducting 20% towards self negligence, the net amount of dependency loss would be Rs.15,65,280/-. To this, further conventional amounts are also required to be added. Thus, the amount of Rs.15,60,000/- awarded by the Tribunal is on the face of it, on the lower side and there is no scope of interfering with the same. Thus, the First Appeal No. 486 of 2005 also deserves to be dismissed. 19. As regards F.A. No. 487 of 2005 arising from MACP No. 1006 of 1997 for injuries caused to the claimant, Heenaben, the Tribunal awarded a sum of Rs.80,700/-. The Doctor who issued the medical certificate had assessed her disability at 19% but the Tribunal assessed disability of 13% for body as a whole. Considering the income of the claimant at Rs.3000/- a month and 13% disability, the Tribunal assessed monthly loss of income at Rs.390/-, i.e. Rs.4680/- per annum. Applying thereto a multiplier of 16, the Tribunal came to the conclusion that the future loss of income would be Rs.74,880/-. The Tribunal also awarded Rs.10,000/- towards pain, shock and suffering, Rs.6000/- towards actual loss of income, Rs.5000/- towards medical expenses, and Rs.5000/- towards attendant charges, nutritious food etc., thus making up the total of Rs.1,00,880/-. From this, the Tribunal deducted Rs.20,176/- towards 20% negligence and awarded a sum of Rs.80,700/- as compensation. 20. From the evidence on record, it appears that the claimant has suffered 13% permanent disability in respect of the whole body. The victim was aged 33 years at the time of the accident and the Tribunal treated the monthly income at Rs.3000/-. It is now settled by the Supreme Court that the value of contribution of a married lady between the age of 29 and 59 towards her family should be treated to be at least Rs.3000/-, [see: Lata Wadhwa and others v. State of Bihar and others reported in AIR 2001 SC 3218 ] and on that basis, the Tribunal ultimately awarded Rs.80,700/- by applying a multiplier of 16. There is nothing wrong in the approach of the Tribunal in arriving at the figure of Rs.80,700/- and there is no merit even in F.A. No. 487 of 2005. 21.
There is nothing wrong in the approach of the Tribunal in arriving at the figure of Rs.80,700/- and there is no merit even in F.A. No. 487 of 2005. 21. On consideration of the entire materials on record, I find no merits in First Appeals No. 485 of 2005, 486 of 2005 and 487 of 2005 and these appeals are dismissed. No order as to costs. 22. In respect of the above three First Appeals, viz. First Appeals No. 485 of 2005, 486 of 2005 and 487 of 2005, it appears that the appellant had deposited the entire awarded amount and pursuant to order dated 1st August 2006 passed by a Division Bench of this Court in Civil Applications No. 8879 of 2006 with Civil Application No. 1989 of 2005 in F.A. No. 486 of 2006 and order dated 6th February 2007 passed in C.A. No. 1770 of 2007, 1772 of 2007 and 1773 of 2007 in First Appeal No. 485 of 2005, 487 of 2005 and 488 of 2005 respectively, some amount was ordered to be disbursed to the claimants and the remaining amounts were ordered to be invested in Fixed Deposits. In view of the fact that First Appeals No. 485 of 2005, 486 of 2005 and 487 of 2005 are now dismissed, and considering the fact that 17 years have now been passed after the incident, the Tribunal is directed to disburse the remaining amount to the claimants, upon proper verification, by accounts payee cheque in the proportion mentioned in the impugned award. Order accordingly.