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2016 DIGILAW 1545 (GUJ)

Daminiben Kiranbhai Mehta v. Director of Campus

2016-07-29

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved by and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Banaskantha at Palanpur (hereinafter referred to as "the learned tribunal" for convenience) in Motor Accident Claim Petition No. 634 of 2004, by which the learned tribunal has partly allowed the said claim petition and has awarded to the original claimants a total sum of Rs. 14,50,440/- after deducting 30% towards contributory negligence of the driver of the Maruti Zen Car - deceased, the original claimants have preferred present First Appeal requesting to enhance the amount of compensation. That the original claimants have also challenged the findings recorded by the learned tribunal holding the deceased driver of the Mariti Zen Car involved in the accident contributory negligent to the extent of 30%. 2. Facts leading to the present First Appeal in nutshell are as under: 2.1 That in a vehicular accident occurred on 7/9/2004 between the Mariti Zen Car, which at the relevant time was driven by the deceased Kiranbhai Mehta and Bus No. GJ-8T-4995, owned by the Gujarat Agricultural University, driver of the Mariti Zen Car - Kiranbhai Mehta sustained serious injuries and died on the spot. That in the said accident, appellants herein also sustained injuries and therefore, they also filed Motor Accident Claim Petition Nos.765 and 766 of 2004 claiming compensation for the injuries sustained by them. 2.2 That all the claim petitions were ordered to be consolidated. That on appreciation of evidence, the learned tribunal has held the deceased - Kiranbhai Mehta - driver of the Mariti Zen Car contributory negligent to the extent of 30% and driver of the bus involved in the accident contributory negligent to the extent of 70%. 2.3 That on appreciation of evidence and assessing the income of the decades at Rs. 20,227/- per month and after considering the prospective income of the deceased at Rs. 23,261 and thereafter deducting 1/3rd towards personal expenses of the deceased, and applying multiplier of 11 (as the deceased was aged 51 years), the learned tribunal has awarded Rs. 20,47,056/- towards future loss of income/loss of dependency. The learned tribunal has also awarded Rs. 10,000/- towards loss of consortium and Rs. 10,000/- towards loss of estate and Rs. 5000/- towards funeral expenses. Thus, by the impugned judgment and award, the learned tribunal has awarded a total sum of Rs. 20,47,056/- towards future loss of income/loss of dependency. The learned tribunal has also awarded Rs. 10,000/- towards loss of consortium and Rs. 10,000/- towards loss of estate and Rs. 5000/- towards funeral expenses. Thus, by the impugned judgment and award, the learned tribunal has awarded a total sum of Rs. 20,72,056/- with interest at the rate of 9% per annum thereon from the date of claim petition till realization. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal in so far as holding the driver of the Maruti Zen Car contributory negligent to the extent of 30% and also on quantum, original claimants have preferred present First Appeal. 3. Ms. Sandhya Natani, learned advocate has appeared on behalf of the original claimants. Mr. Maulik Shelat, learned advocate has appeared on behalf of the respondent No. 2 - Insurance Company and Mr. D.G. Chauhan, learned advocate has appeared on behalf of the owner of the Bus - respondent No. 1. 4. Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has vehemently submitted that in the facts and circumstances of the case, the learned tribunal has materially erred in holding the driver of the Maruti Zen Car involved in the accident contributory negligent to the extent of 30%. 4.1 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that while holding the driver of the Maruti Zen Car contributory negligent to the extent of 30%, the learned tribunal has not properly appreciated the evidence on record, more particularly deposition of eye witness who has been examined at Ex. 52. 4.2 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that as such the driver of the bus involved in the accident was taking overtake from the wrong side and he dashed on right hand side of the bus - driver side with the left hand side of the Maruti Zen Car. It is submitted that, therefore, the learned tribunal ought to have held the driver of the bus involved in the accident sole negligent for the accident. 4.3 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that even the learned tribunal has materially erred in assessing and considering the income of the deceased at Rs. 20,227/- per month. 4.3 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that even the learned tribunal has materially erred in assessing and considering the income of the deceased at Rs. 20,227/- per month. It is submitted that as per the original claimants, deceased was getting one month's salary as Bonus. It is submitted that, therefore, the aforesaid ought to have been included in the income of the deceased and thereby the learned tribunal ought to have awarded future loss of income accordingly. 4.4 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in awarding Rs. 25,000/- only under the conventional heads as well as funeral expenses. 4.5 Ms. Sandhya Natani, learned advocate appearing on behalf of the original claimants has further submitted that as per the decision of the Division Bench of this Court rendered in First Appeal No. 481 of 2001 as well as another decision of the Division Bench of this Court rendered rendered in First Appeal No. 3894 of 2006, the original claimants are entitled to at least Rs. 1,10,000/- under the conventional heads as well as funeral expenses. 5. Present appeal is vehemently opposed by Mr. D.G. Chauhan, learned advocate appearing on behalf of the respondent No. 1 - owner of the Bus and Mr. Maulik Shelat, learned advocate appearing on behalf of the respondent No. 2 - Insurance Company of the Bus involved in the accident. 5.1 Learned advocates appearing on behalf of the respondents have vehemently submitted that the findings recorded by the learned tribunal with respect to the contributory negligence and holding the driver of the Maruti Zen Car involved in the accident is on appreciation of evidence and the same is neither perverse nor contrary to the evidence on record. 5.2 Learned advocates appearing on behalf of the respondents have further submitted that as such the driver of the bus was driving the vehicle on the highway and all of a sudden Maruti Zen car came outside from the society and thereafter while taking "U" turn, the bus dashed with the left hand side of the Maruti Zen Car. 5.2 Learned advocates appearing on behalf of the respondents have further submitted that as such the driver of the bus was driving the vehicle on the highway and all of a sudden Maruti Zen car came outside from the society and thereafter while taking "U" turn, the bus dashed with the left hand side of the Maruti Zen Car. It is submitted that therefore, in the facts and circumstances of the case, the findings recorded by the learned tribunal holding the driver of the Maruti Zen Car contributory negligent to the extent of 30% cannot be said to be erroneous and/or contrary to the evidence on record. 5.3 Learned advocates appearing on behalf of the respondents have further submitted that as such the findings recorded by the learned tribunal in other two claim petitions which were as such ordered to be consolidated along with the present claim petition, the learned tribunal has specifically given finding holding the driver of the Maruti Zen Car contributory negligent to the extent of 30%. It is submitted that the said finding has attained finality so far as other two petitions being Motor Accident Claim Petition Nos. 765 and 766 of 2004 are concerned. It is submitted that therefore, in the facts and circumstances of the case, the learned tribunal has not committed any error in holding the driver of the Maruti Zen Car contributory negligent to the extent of 30%. 5.4 Now, so far as the submission on behalf of the original claimants that the learned tribunal has materially erred in assessing the income of the deceased at Rs. 20,227/- per month and not considering one month's bonus which the deceased was receiving every year is concerned, it is submitted that as such the learned tribunal has not deducted Income Tax while awarding future loss of income. It is further submitted that even the learned tribunal has added 15% towards future rise in income, which could not have been added. It is submitted that looking to the age of the deceased i.e. 51 years, 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 : AIR 2009 S.C. 3104 , nothing was required to be added towards future rise in income. It is submitted that therefore the impugned judgment and award passed by the learned tribunal awarding Rs. 20,47,056/- towards future loss of income/loss of dependency is not required to be interfered with. However, the learned advocate appearing on behalf of the Insurance Company is not in a position to dispute and is not disputing that the original claimants shall be entitled to at least Rs. 1,10,000/- under conventional heads and funeral expenses as per the decisions of the Division Bench rendered in First Appeal No. 481 of 2001 as well as First Appeal No. 3894 of 2006, relied upon by the learned advocate appearing on behalf of the original claimants. 6. Heard the learned advocates appearing on behalf of the respective parties at length. We have perused the impugned judgment and award passed by the learned tribunal. 6.1 At the outset, it is required to be noted that by the impugned judgment and award the learned tribunal has held the driver of the Maruti Zen Car contributory negligent to the extent of 30% and the Bus involved in the accident contributory negligent to the extent of 70%. However, the manner in which the accident has taken place and the fact that while coming out from the society and joining the main road, the driver of the Maruti Zen Car was required to take more care and caution which could have avoided the accident. It appears that after the driver of the Maruti Zen Car came out from the society and joining the main road, immediately thereafter he was taking right turn from the divider as he wanted to go to Palanpur and while proceeding further from the left hand side of the road, the Maruti Zen Car dashed at the right portion of the driver side of the Bus i.e. left hand portion/rear portion of the Maruti Zen car. Considering the overall facts and circumstances of the case, we are of the opinion that the learned tribunal has not committed any error in holding the driver of the Maruti Zen Car contributory negligent to the extent of 30% and we confirm the finding recorded by the learned tribunal holding the driver of the Maruti Zen Car contributory negligent to the extent of 30%. 6.2 Now, so far as the amount of compensation awarded by the learned tribunal is concerned, it is required to be noted that the learned tribunal has awarded Rs. 20,47,056/- under the head of future loss of income/loss of dependency, which in the facts and circumstances of the case cannot be said to be on lower side. It is required to be noted that even though the claimants deceased was aged 51 years, the learned tribunal has added 15% towards future rise in income. Thus, considering the overall facts and circumstances of the case, and even if the aforesaid aspect is considered, deducting Income Tax and even future rise in income, it cannot be said that awarding Rs. 20,47,056/- towards future loss of income is on lower side. 6.3 Now, so far as the amount awarded by the learned tribunal under the conventional heads is concerned, we are of the opinion that the learned advocate appearing on behalf of the original claimants is justified in making grievance that the learned tribunal has materially erred in awarding Rs. 25,000/- in all only towards loss of consortium, loss of estate and funeral expenses. As per the catena of decisions of this Court more particularly decisions relied upon by the learned advocate appearing on behalf of the original claimants, referred to hereinabove and as the accident occurred in the year 2004, original claimants shall be entitled to at least Rs. 1,10,000/- under the conventional heads and funeral expenses. Thus, to the aforesaid extent, the impugned judgment and award passed by the learned tribunal is required to be modified and present appeal is required to be partly allowed to the aforesaid extent. 7. In view of the above and for the reasons stated above, present appeal is partly allowed to the aforesaid extent and the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Banaskantha at Palanpur in Motor Accident Claim Petition No. 634 of 2004, is hereby modified to the aforesaid extent and it is held that the original claimants shall be entitled to total sum of Rs.15,09,941/- (after deducting 30% towards contributory negligence of the deceased), with interest at the rate of 9% per annum from the date of filing of the claim petition till realization. In the facts and circumstances of the case, there shall be no order as to costs. In the facts and circumstances of the case, there shall be no order as to costs. Now, either of the respondents to deposit the enhanced amount of compensation with the learned tribunal within a period of eight weeks from today. On such deposit, the same shall be paid to the original claimants by Account Payee Cheque on due verification and identification.