Dalvirsinh Balamsingh Tomar v. Kausaliyaben Pratapsinh Thakore
2015-10-01
AKIL KURESHI
body2015
DigiLaw.ai
JUDGMENT : Akil Kureshi, J. This appeal is filed by the driver, owner and insurer of a tanker which was involved in a fatal accident which took-place on 23.02.1990 on Halol-Vadodara highway causing death of a scooterist, Pratapsinh Thakore. His widow, minor children and aged mother filed claim petition seeking compensation of Rs.10 lacs from driver, owner and insurer of the said vehicle. Claims Tribunal, by the impugned award dated 12.01.1996, partially allowed the claim petition and awarded compensation of Rs.7,47,000/- to the claimants. This award, the original opponents have challenged in this appeal on the grounds of negligence as well as quantum of compensation. 2. With respect to the manner, in which, the accident took place, there was no eyewitness account before the Tribunal. The Tribunal, however, relied on the FIR dated 23.02.1990 lodged by the Head Constable of the nearby police station, in which, he stated that, at about 7 O'clock in the evening, he came to know from a driver of a passing truck that, a fresh accident has taken place near a railway crossing and, one person, in seriously injured condition is lying there. He, therefore, rushed to the spot along with other police officers, where he found that the tanker in question was lying on the left hand side of the road facing south and north south road. The driver of the tanker was not present. In front of the tanker, one Bajaj Scooter completely smashed was lying. One person was screaming for help. He had serious head injuries and injuries on other parts of the body. He was immediately rushed to the nearby hospital. From the documents found from the dicky of the scooter, he was identified as Pratapsinh Thakore. The Tribunal also took note of the panchnama of the scene of the incident which showed that the accident had taken-place near a railway crossing near Jarod village of Halol-Vadodara straight highway. The road was north to south with a width of 22 ft east to west. The tanker was lying facing southern direction on the eastern boundary of the road. There was a brake marks of 20 ft. From such evidence, the Tribunal believed that the tanker driver was solely negligent in causing accident. 3. This finding the counsel for the appellant has strongly disputed. He submitted that there was no evidence that there were no eyewitness accounts.
There was a brake marks of 20 ft. From such evidence, the Tribunal believed that the tanker driver was solely negligent in causing accident. 3. This finding the counsel for the appellant has strongly disputed. He submitted that there was no evidence that there were no eyewitness accounts. The panchnama showed that the tanker was lying on his correct side of the road. It must, therefore, be presumed that the scooter driver must have come on the wrong side and, in the process, dashed against the tanker. However, there is no evidence on record to suggest that the scooter was coming from the opposite direction of the tanker and that therefore, there was a head on collusion. We may recall, the road was from north to south direction. The tanker was facing southern direction. Prima facie, it would therefore, be seen that the tanker was travelling from Vadodara to Halol. It has come on record through the evidence of the widow of the deceased who deposed at Exh. 27 that, the deceased was travelling from Vadodara to Halol. Thus, it would appear that the tanker as well as the scooter were both travelling in the same direction. If that be so, this was a clear case of the tanker having dashed against the scooter from behind. The position of the tanker being on his correct side of the road, therefore, would be of no significance. If there was any doubt about this situation, surely, it was open for the insurance company to examine the driver of the tanker, who was the best witness, who could have described before the Court, the manner, in which the accident took place. Having not made any such attempt, I find no error in the conclusion of the Tribunal on this count. 4. Coming to quantification of compensation, it has come on record that the deceased was employed as a Security Inspector in one Gujarat Alkalies Chemical Company. The claimants examined Mr. Vindodbhai J. Patel at Exh. 36, who was the personnel officer of the said company. He deposed that the deceased had joined as a watchman on 01.09.1976. He got periodic promotions to the post of Naik, Senior Naik and thereafter, joined as a Security Inspector as a direct recruitment on 16.10.1987. His grade pay was Rs.465-995. On the date of the accident, his total salary along with basic pay and allowances was Rs.4835/-.
He deposed that the deceased had joined as a watchman on 01.09.1976. He got periodic promotions to the post of Naik, Senior Naik and thereafter, joined as a Security Inspector as a direct recruitment on 16.10.1987. His grade pay was Rs.465-995. On the date of the accident, his total salary along with basic pay and allowances was Rs.4835/-. He also stated that, he would have got promotion to the Senior Security Inspector on or around 16.10.1993. With such promotion, his basic pay would have become Rs.2328/-. With allowances, his gross salary would have become Rs.10,860/-. He also stated that, every four years, the company enters into a settlement with the union, under which, salary increase of approximately Rs.1500/- is granted to the employees. Such settlement was due on 01.07.1995. 5. On the basis of such evidence, the Claims Tribunal took total salary of the deceased at Rs.4000/- per month, granted 50% increase for future, adopted ?rd for his personal expenditure and arrived at a sum of Rs.7,20,000/- by way of loss of dependency benefits and by applying multiplier of 15. To this figure, the Tribunal added conventional figures of Rs.20,000/- for loss of expectation, Rs.2000/- for funeral expenses and Rs.5000/- for loss of consortium and thus, awarded a total sum of Rs.7,47,000/-. 6. Here again, I see no possibility of any interference. It has come on record that the age of the deceased was 40 years. Choice of multiplier, therefore, was correct. Granting increase of 50% salary was also perfectly justified. As noted, the deceased was in a secured service. He was getting periodic promotions and pay revisions. His next promotion was due immediately. The company, according to its personnel officer, would enter into settlement with the workers union every four years for revision in pay. The Tribunal has adopted a sum of Rs.4000/- out of a gross salary of Rs.4835/- received by the deceased just before the accident. Thus, even if there were certain allowances which were relatable to the active service of the deceased and were more in the nature of compensating for the cost to be incurred by the deceased for such service, the ultimate figure adopted by the Tribunal was, if at all on the lower side.
Thus, even if there were certain allowances which were relatable to the active service of the deceased and were more in the nature of compensating for the cost to be incurred by the deceased for such service, the ultimate figure adopted by the Tribunal was, if at all on the lower side. Further, there were five claimants and therefore, as per the decision of the Supreme Court in case of Sarla Verma (Smt) and ors v. Delhi Transport Corporation and anr.( AIR 2009 SC 3104 ) deduction for personal expenditure at ¼th instead of ?rd could have been taken. 7. With all these reasons, appeal is dismissed. R & P to be transmitted back to the Trial Court. Appeal dismissed.