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2016 DIGILAW 360 (GUJ)

Kamlaba Ranjitsinh v. Bhavarsinh Mirsinh Jat

2016-02-15

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This appeal has been preferred by the original claimant against the judgment and award dated 12.11.1997 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad Rural at Mirzapur in Motor Accident Claim Petition No. 405 of 1987, wherein the learned Tribunal has been pleased to award compensation of Rs. 1,70,500/-. 2. The original claimant by way of preferring the present appeal inter-alia, contended that the learned Tribunal has not properly appreciated the evidence on record and has wrongly recorded the finding and fixed the contributory negligence on the part of the deceased-Ranjitsinh Jilubha Chudasama and the learned Tribunal has also awarded compensation which is on very lower side. Precisely, it is the contention of the appellant that 100% compensation is required to be enhanced. 3. The brief facts are as under:- 3.1. The accident has taken place on 3.3.1987. The vehicle involved in the accident was open Truck No. GUD-2262. It is alleged that on 3.3.1987, the deceased Ranjitsinh Jilubha Chudasama-Police-Sub-inspector was on his duty and he was coming towards Ahmedabad on his Motor Cycle Bullet No. GAA-335. At that time one open Truck bearing No. GUD-2262 owned by opponent No. 2 being driven by opponent No. 1 in full speed and in rash and negligent manner dashed with deceased and because of the impact, deceased sustained severe injures and ultimately died. It is alleged that deceased was serving as Police Sub-inspector in Gujarat State and at that time of his death his salary was Rs. 1529/- per month. The petitioners have claimed Rs. 3,00,000/- as compensation. 4. As Mr. H.D. Chudasama, learned advocate appearing for the appellant has contended with regard to the fixation of contributory negligence on the part of the deceased and has also contended for the amount of compensation. To appreciate his contention, this Court has gone through the entire records and proceedings as well as impugned judgment and award. 5. Per contra, Mr. Ajay Mehta, learned advocate appearing for the defendant No. 3 has submitted that the learned Tribunal has rightly awarded just compensation and rightly fixed that the deceased was negligent to the extent of 50% and the finding recorded by the Tribunal is in accordance with the facts and evidence on record which calls for no interference. 6. Per contra, Mr. Ajay Mehta, learned advocate appearing for the defendant No. 3 has submitted that the learned Tribunal has rightly awarded just compensation and rightly fixed that the deceased was negligent to the extent of 50% and the finding recorded by the Tribunal is in accordance with the facts and evidence on record which calls for no interference. 6. On the point of negligence, indisputably, the deceased was proceeding on his motor cycle on "Ch" road which runs from north to south. On the northern side, City of Gandhinagar is situated and on the southern side, City of Ahmedabad is situated and on the eastern side of the "Ch" road, Vidhan Sabha building is situated. Indisputably, the offending Truck No. GUD-2262 came from the Vidhan Sabha building and it was about to board the "Ch" road and was proceeding towards the south, i.e. City of Ahmedabad and at that time, the deceased who was on the Enfield Bullet Motor Cycle hit the aforesaid truck from behind, in the result, he fell down and ultimately succumbed to his injuries. 7. Indisputably, none of the witnesses examined has witnessed the accident. Therefore, F.I.R., Panchnama as well as summary report filed after the conclusion of investigation prepared by the Investigating Agency are only decisive evidence available before the learned Tribunal. The learned Tribunal came to the finding that as the aforesaid truck was after taking turn towards south and was about to board the "Ch" road, at that time, deceased who was proceeding on his Motor Cycle on straightway could not locate the aforesaid offending truck and hit the truck from behind. Every person driving any vehicle has to drive with due care and caution. In the present case, the deceased was a Police Sub Inspector who was driving bullet Motor Cycle and dashed with the offending Truck from the back side. In this view of the matter, the learned Tribunal has rightly come to the conclusion that the deceased was negligent to the extent of 50%, which calls for no interference. 8. Now on the point of quantum, the claimants have averred that deceased was aged about 40 years. In order to prove the age, the claimants have produced school leaving certificate, disclosing his date of birth to be 10.11.1947. Consequently, his age is proved to be 40 years at the time of accident. 9. 8. Now on the point of quantum, the claimants have averred that deceased was aged about 40 years. In order to prove the age, the claimants have produced school leaving certificate, disclosing his date of birth to be 10.11.1947. Consequently, his age is proved to be 40 years at the time of accident. 9. As regards compensation, it is noticed that a salary certificate is produced at Exh. 44 disclosing his salary of Rs. 2074/- per month which also indicates revised scale of pay in the year 1991. However, in the petition itself the claimants have narrated income of deceased to be Rs. 1529/- per month. Therefore, considering his income as Rs. 1529 per month and his age of 40 years, in view of the guidelines laid down in "Sarla Verma and others vs. Delhi Transport Corporation and another" reported in (2009) 6 SCC 121 , 50% of additional prospective income is required to be added to the aforesaid income which comes to (Rs. 1529 + Rs. 765) = Rs. 2294/-. The claimants are four in number, therefore, in view of the aforesaid guidelines, 1/4th amount, i.e. Rs. 573/- is required to be deducted towards his personal and living expenses if he had been alive, and the remaining amount comes to (Rs. 2294 - Rs. 573) = Rs. 1721/- per month. 10. Considering the age of the deceased to be 40 years of age and falls within the age group of 36 to 40 years, therefore, in view of the guidelines laid down by the Hon'ble Apex Court in the case of "Sarla Varma" (supra), 15 multiplier shall be applicable for the age groups of 36 to 40 years. Hence, applying the multiplier of 15, the amount comes to (Rs. 1721 x 12 x 15) = Rs. 3,09,780/-. 11. As regards other general damages, it is noticed that the learned Tribunal has awarded Rs. 10,000/- towards conventional amount, Rs. 5000/- towards pain, shock and suffering, Rs. 848/- towards funeral expenses and Rs. 20,000/- towards loss of consortium. In all the learned Tribunal has awarded Rs. 35,848/- towards above mentioned non pecuniary damages, which is just and proper. 12. In view of the above, the compensation comes to (Rs. 3,09,780 + Rs. 35,848) = Rs. 3,45,628/-. 5000/- towards pain, shock and suffering, Rs. 848/- towards funeral expenses and Rs. 20,000/- towards loss of consortium. In all the learned Tribunal has awarded Rs. 35,848/- towards above mentioned non pecuniary damages, which is just and proper. 12. In view of the above, the compensation comes to (Rs. 3,09,780 + Rs. 35,848) = Rs. 3,45,628/-. However, as the deceased was equally negligent for the accident, the aforesaid amount is required to be slashed down to the extent of 50%, which comes to (Rs. 3,45,628/2) = Rs. 1,72,814/-. Therefore, the appellants are entitled to get the amount of compensation to the extent of Rs. 1,72,814/-. 13. The learned Tribunal has awarded compensation to the extent of Rs. 1,17,500/-. In view of the above, the amount of compensation is required to be enhanced to the extent of Rs. 55,314/- (Rs. 1,72,814 - Rs. 1,17,500) = Rs. 55,314/-. 14. In view of the aforesaid discussion, this appeal partly succeeds and the additional amount of compensation of Rs. 55,314/- requires to be awarded to the claimants from the date of claim petition till realization with a running interest at the rate of 9%. Rest of the judgment and award passed by the learned Tribunal is hereby confirmed. 15. The Respondent - Insurance Company is directed to deposit the additional amount of compensation within a period of two months from today and on deposition of amount the same shall be disbursed to the claimants by account payee cheque. No order as to cost. The Registry is directed to return the R & P to the learned Tribunal forthwith.