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2016 DIGILAW 361 (GUJ)

Ranmalbhai Arjanbhai Ahir v. Koli Mandan Sadur

2016-02-15

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This appeal is preferred against the judgment and award passed by learned Motor Accident Claims Tribunal (Aux.) at Veraval in Motor Accident Claim Petition No. 177 of 1999 (Old 1030/90). 2. The brief facts of the case are that on 28.5.1990 at night 11.45 hours, the appellant was going from Una to Kodinar in his Truck No. GQA 5945 by driving his truck very slowly and carefully; at that time, respondent No. 1 had driven Truck No. GTD 2235 in wrong side, full speed, rash and negligent manner and had dashed with the appellant's truck and had run away leaving his truck without caring to shift the appellant who was injured to the hospital or without informing the police. It is averred that the conductor of the appellant had took the appellant to the hospital and had filed Criminal Complaint No. 113 of 1990 against respondent No. 1. It is averred that due to the accident in question, the appellant has suffered grievous injuries and had to take treatment for long time. It averred that the appellant was earning Rs. 1800/- per month but due to disability, he will not be able to earn and accordingly, claimed compensation of Rs. 3,00,000/-. 3. This appeal is being preferred by the original claimant who died during the pendency of the appeal and, therefore, his heirs and legal representatives have been brought on record. 4. Mr. Chetan Pandya, learned advocate for the appellant has contended that learned Tribunal has taken very hyper-technical view in deciding the aforesaid claim petition even though there was ample evidence in the nature of documentary evidence that the vehicle was belonging to the original opponent No. 2 - M/s. Dabhi & Company which was being registered in the name of Punabhai and the said vehicle was insured with the insurance company, for which, the cover note was also placed on record vide Mark 24/3, but by disregarding the aforesaid documentary evidence, learned Tribunal has recorded the finding that the original claimant has failed to prove ownership as well as the fact that the vehicle was insured with the opponent No. 3. He further contended that learned Tribunal has observed that the claimant could have obtained the certificate from the RTO or any person from the RTO could have been examined in order to prove the ownership of the aforesaid vehicle. He further contended that learned Tribunal has observed that the claimant could have obtained the certificate from the RTO or any person from the RTO could have been examined in order to prove the ownership of the aforesaid vehicle. In absence of leading such evidence, learned Tribunal has, taking the hyper-technical view, dismissed the claim petition against opponent Nos. 2 and 3 i.e. owner and insurance company. He further contended that learned Tribunal has taken income of the diver - injured person on very lower side and has not even considered prospective income while considering prospective rise in income. He contended that learned Tribunal could have considered the claim after appreciation of the evidence on record and could have apportioned liability respectively against the opponents which is not done so far. It is, therefore, requested by Mr. Pandya to allow the present appeal. 5. Against the aforesaid arguments, Mr. Dakshesh Mehta, learned advocate for opponent No. 3 has vehemently contended that learned Tribunal has rightly arrived at the finding that in absence of any proof, the insurance company cannot be fastened with the liability. He contended that the said finding recorded by learned Tribunal is not required to be interfered with by this Court. He further contended that the judgment and award passed by learned Tribunal is in accordance with law which does not call for any interference by this Court. 6. Mr. Maulik Shelat, learned advocate for opponent No. 5 has also supported the impugned judgment and award delivered by learned Tribunal and contended that, in case, if any contributory negligence is to be apportioned, contributory negligence fixed by learned Tribunal of the driver and insured vehicle is required to be slashed down. 7. On the point of negligence, it appears that while framing the issue, learned Tribunal appears to have fallen in error in framing two different issues as regards to respective vehicles, but instead of doing so, learned Tribunal could have raised the issue, whether the incident was occurred because of contributory negligence on the part of either of the vehicles involved in the vehicular accident and to what extent? On the aforesaid issue, learned advocates for the respective parties have taken this Court through the FIR, panchnama as well as oral evidence on record of the appellant himself who was eye witness as well as victim of the accident. 8. On the aforesaid issue, learned advocates for the respective parties have taken this Court through the FIR, panchnama as well as oral evidence on record of the appellant himself who was eye witness as well as victim of the accident. 8. In examination-in-chief, the appellant has stated as under. "...... when the applicant was driving his truck slowly on left side of the road, one truck No. GTD-22535 came totally from wrong side carelessly without showing any signal of light and dashed with front part of my truck. The opponent rushed from opposite direction without keeping the light dim-full and dashed my truck. Therefore, Hussain Ibrahimbhai - the conductor of the truck sitting on left side of the driver side got jumped and thrown out of the truck and I - the applicant got trapped in the cabin. The whole incident occurred due to mistake of opponent No. 1..... " 9. In light of the aforesaid deposition of the injured victim as well as on conjoint reading with the panchnama of scene of incident, it clearly reveals that the incident in question occurred on the National Highway leading to Veraval Somnath. Indisputably, at the place of incident, the road runs from east to west. The driver of Truck No. GQA 5945 was proceeding towards Kodinar from Una and hence, southern half of the road is left side so far as the driver of Truck No. GAQ 5945 is concerned, whereas the driver of Truck No. GTD 2235 was proceeding from Veraval to Una and hence, northern half of the road side is left side. At the place of incident, width of the tar road is nearly 24 feet leaving service road of 8 feet on both the sides and hence it was a road where three vehicles can easily be passed. It appears that from the aforesaid road, at a time, both the trucks involved in the incident in question were proceeding in opposite direction to each other. The evidence on record clearly indicates that both the vehicles have been damaged from the front side, more particularly, on driver side of both the vehicles. In this view of the matter, it appears that this is a clear case of head on collision. The evidence on record clearly indicates that both the vehicles have been damaged from the front side, more particularly, on driver side of both the vehicles. In this view of the matter, it appears that this is a clear case of head on collision. Normally, in case of head on collision, negligence is required to be apportioned equally, but in the present case, after conclusion of investigation, the police has filed the chargesheet against the driver of truck No. GTD 2235. Under the circumstances, more liability can be fastened upon the driver of truck No. GTD 2235, meaning thereby, 70% liability can be fastened on the part of driver of truck No. TRD 2235 and 30% liability can be fastened upon the driver of truck No. GQA 5945. As the injured person himself was driving truck No. GQA 5945, 30% of the amount of compensation shall be slashed down for his own contribution to the accident in question. 10. On the point of quantum, the age of the deceased claimant at the time of vehicular accident is pleaded to be 47 in the claim petition. No documentary evidence in the nature of birth certificate is produced, but no dispute appears to have been raised so far as the age of the injured victim is concerned before the learned Tribunal. In that view of the matter, the age of injured victim may be reckoned under the age group of 45 to 50 years. So far as the income of the injured victim is concerned, admittedly, he was working as driver of truck No. GQA 5945 and he has pleaded that he was earning Rs. 1800/- per month, but no documentary evidence is produced nor even any other document is produced to prove the income. In absence of the same, considering the year of accident to be 1990 and considering his occupation as driver, his income as driver is required to be presumed and, therefore, learned Tribunal presumed his income to be Rs. 1000/- per month, but learned advocate Mr. Pandya for the appellant has argued that learned Tribunal has not given any prospective rise in income as he was belonging to the age group of 45 to 50 years and hence, 30% rise in income is required to be added. 11. Therefore, considering the income of the deceased claimant to be Rs. 1000/- per month, but learned advocate Mr. Pandya for the appellant has argued that learned Tribunal has not given any prospective rise in income as he was belonging to the age group of 45 to 50 years and hence, 30% rise in income is required to be added. 11. Therefore, considering the income of the deceased claimant to be Rs. 1000/- per month and 30% prospective rise in income, it would come to Rs. 1300/- per month and hence, annual income would be Rs. 15,600/-. Disability on body as a whole at 25%, would come to Rs. 3900/- and considering the age of the deceased claimant, appropriate multiplier would be 13. Thus, claimant would be entitled to Rs. 50700/- (Rs. 3900 x 13 = Rs. 50,700/-) towards future loss of income. As far as amounts under the different heads awarded by learned Tribunal are just and proper which are not required to be interfered with. Hence, the claimants are entitled to get the following amount under the different heads. Rs. 50, 700/- Loss of future income Rs. 27, 800/- Towards medical expenses Rs. 15, 000/- Towards pain, shock and suffering Rs. 7200/- Towards rich diet and transportation Rs. 15, 000/- Towards actual loss of income Rs. 2000/- Towards attendant charges Rs. 1, 17, 700/- Total 12. Hence, total compensation would be Rs. 1,17,700/-. As the deceased claimant himself is held responsible to the extent of 30%, the amount of compensation is required to be slashed down at 30% i.e. Rs. 35,310/-. Hence, the amount of compensation would come to Rs. 82,390/-. 13. The evidence on record in the nature of cover note produced at Mark 24/3 clearly indicative of the fact that opponent No. 2 was owner and opponent No. 3 is the insurer of the aforesaid offending vehicle. None of the parties to the proceedings has challenged before learned Tribunal that truck No. GTD 2235 was not belonging to opponent No. 2. None of the parties have led evidence to prove that truck No. GTD 2235 was not belonging to opponent No. 2 and not insured by opponent No. 3. Therefore, finding recorded by learned Tribunal that the claimant failed to prove that opponent No. 2 is owner and opponent No. 3 is insurer of the aforesaid vehicle is required to be reversed as such. 14. For the aforesaid reasons, the appeal succeeds in part. The opponent Nos. Therefore, finding recorded by learned Tribunal that the claimant failed to prove that opponent No. 2 is owner and opponent No. 3 is insurer of the aforesaid vehicle is required to be reversed as such. 14. For the aforesaid reasons, the appeal succeeds in part. The opponent Nos. 1 to 3 are directed to pay Rs. 82,390/- to the claimant with 9% interest from the date of claim petition till realisation. The opponent No. 3 is directed to deposit the amount within a period of two months from today. On deposit of the aforesaid amount, the entire amount shall be given to the widow of the deceased claimant. R & P, if any, lying here be sent back forthwith to the concerned lower Court. 15. In view of the above order, Civil Application No. 11657 of 2008 also stands disposed of.