Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 316 (GUJ)

Union Of India v. Mansukhlal Laljibhai Vaghela

2020-02-19

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : R.M.CHHAYA, J. 1. All these appeals arise out of a common judgment and award dated 6.2.2007 passed by the Motor Accident Claim Tribunal (Aux), Rajkot in Motor Accident Claim Petitions no. 1336 of 1997, 1421 of 1997, 1541 of 1997, 798 of 1998, 1539 of 1997 and 1445 of 1997. First Appeals no.1955 to 1959 of 2008 are preferred by the Union of India and the department being the owner of jeep involved in the accident, whereas, First Appeal no.2434 of 2008 is filed by the original claimants of Motor Accident Claim Petition no.1336 of 1997 for enhancement. All appeals are filed being aggrieved by the common judgment and award dated 6.2.2007 passed by the Motor Accident Claim Tribunal (Aux), Rajkot under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). 2. The accident occurred on 23.7.1997 at about 09:30 p.m. near KharachiyaSardhar Village main road, which abuts on the main highway of Rajkot – Bhavnagar between the truck bearing registration no. GJ1X– 5610 and jeep bearing registration no. GJ3 – G55. It appears from the record that the jeep belonging to the appellant no.2 herein and the deceased – Mansukhlal Laljibhai Vaghela who was working with the Telecom Department along with the other persons were travelling in the jeep. The record indicates that and more particularly, as per the Panchnama, while the jeep reached near the place of accident, the truck involved in the accident came from the other side, changed its side to its wrong side and collided with the jeep and because of which, Mansukhlal Laljibhai Vaghela as well as Pradumanbhai Manharbhai Trivedi sustained serious injuries and succumbed to the same, whereas, other original claimants sustained injuries. An FIR was lodged with Rajkot Taluka Police Station being CR no. I436/ 1997 and the original claimants filed different claim petitions and claimed compensation as under: MACP No. Claim Amount Awarded Amount 1336/1997 Rs.25,00,000/ Rs.8,84,000.00 1421/1997 Rs.12,00,000/ Rs.3,47,844.00 1541/1997 Rs.1,00,000/ Rs.71,312.80 798/1998 Rs.1,00,000/ Rs.73,000.00 1539/1997 Rs.1,50,000/ Rs.1,14,100.00 1445/1997 Rs.3,00,000/ Rs.1,03,104.80 3. The facts stated in Motor Accident Claim Petition no.1336 of 1997 are taken as basis as in these appeals, the aspect of quantum arises only in First Appeal no.2434 of 2008, which originates from Motor Accident Claim Petition no.1336 of 1997. The facts stated in Motor Accident Claim Petition no.1336 of 1997 are taken as basis as in these appeals, the aspect of quantum arises only in First Appeal no.2434 of 2008, which originates from Motor Accident Claim Petition no.1336 of 1997. It was the case of the original claimants that the deceased Mansukhbhai was working as Sub-Divisional Engineer in Telecom Department and was earning monthly salary of Rs.9,053/per month and accordingly, claimed the amount as mentioned hereinabove. Similarly, the other claimants including the driver – Pradhumanbhai succumbed to the injuries who was working in Telecom Department. 4. On perusal of the award, it appears that as far as the cases which relate to injuries sustained in the accident, there is no dispute as regards permanent disability of the body as a whole and therefore, no further discussion is necessitated to be made in this judgment. The claimants relied upon the oral evidence as well as the documentary evidence and the appellant being the owner of the jeep relied upon the documentary evidence, more particularly, the FIR at Exh.42 and the Panchnama at Exh.43. All the original claimants were examined in their respective claim petitions. The Tribunal, after considering the evidence on record, came to the conclusion that there is no direct evidence available as to how the accident occurred and that the driver of the truck is not examined either by the claimants or by the insurance Company and considering the Panchnama, the Tribunal came to the conclusion that both the vehicles collided with one another and were found on the middle of the road and therefore, came to the conclusion that the driver of the truck as well as driver of jeep were contributory negligent in the ratio of 70:30 i.e. driver of the truck was held to be negligent to the extent of 70% and driver of the jeep was held to be negligent to the extent of 30%. Upon appreciating the evidence as regards the income and the injury, the Tribunal allowed the claim petitions partly and awarded compensation, as aforesaid. 5. The Tribunal, over and above the same, also awarded interest at the rate of 9% per annum from the date of filing of the claim petitions till December, 2000 and from January, 2001 till its realization at the rate of 6% per annum. 5. The Tribunal, over and above the same, also awarded interest at the rate of 9% per annum from the date of filing of the claim petitions till December, 2000 and from January, 2001 till its realization at the rate of 6% per annum. The appellants as owners of the jeep involved in the accident have preferred First Appeals no.1955 to 1959 of 2008 and as observed hereinabove, the original claimants of Motor Accident Claim Petition no.1336 of 1997 have preferred First Appeal no.2434 of 2008. 6. Heard Mr. Ketan Dave, learned advocate for the appellants in First Appeals no.1955 to 1959 of 2008, Ms. Lilu K. Bhaya, learned advocate for the insurance Company. Though served, no one appears for respondent no.2 in all the appeals. We also heard Mr. Pankaj Desai, learned advocate for the appellants original claimants, Mr. Ketan Dave, learned advocate for respondent no.3 and Ms. Lilu K. Bhaya, learned advocate for respondent no.2 – insurance Company in First Appeal no.2434 of 2008. Though served, no one appears for respondent no.1, owner of the truck in the said appeal and have also perused the original record and proceedings. 7. Mr. Ketan Dave, learned advocate for the appellants has contended as under: 7.1 That, the appellants do not challenge the quantum as well as the permanent disability as assessed by the Tribunal in the claim petitions. Mr. Dave contended that the Tribunal has in Paragraph 34 of the judgment, held that the drivers of truck and jeep are both negligent to the extent of 70:30 respectively. Mr. Dave further contended that the Tribunal in Paragraph 34 has in fact observed that as no direct evidence is available, Panchnama is relied upon. Mr. Dave, however, submitted that the claimants were in fact travelling in the jeep involved in the accident and therefore, it is incorrect to say that no direct evidence as to how the accident has occurred is available. 7.2 Mr. Dave referring to Panchnama, contended that the Tribunal has committed an error in reading the Panchnama. It is further contended that appreciation of the Panchnama by the Tribunal is not correct and it is not the complete reading of the Panchnama. Mr. 7.2 Mr. Dave referring to Panchnama, contended that the Tribunal has committed an error in reading the Panchnama. It is further contended that appreciation of the Panchnama by the Tribunal is not correct and it is not the complete reading of the Panchnama. Mr. Dave further relied upon the Panchnama and pointed out that on the contrary, Panchnama clearly discloses the fact that the truck collided with the jeep by changing its side and dashed with the jeep coming to the wrong side. According to Mr. Dave therefore, the driver of the truck would be solely liable for the accident. Mr. Dave further referring to Panchnama, contended that the jeep was being driven on its correct side and because of the impact of the collusion with the truck, the jeep was dragged to a considerable distance. Mr. Dave vehemently relied upon the deposition of Kantibhai Veljibhai Padodara at Exh.73, deposition of Mavjibhai Veljibhai Bhadaniya at Exh.27, Ghanshyambhai Shantilal Thakrar at Exh.67 and Arvindbhai Dayabhai Chavda at Exh.68. It is further contended that all the four witnesses were travelling in the jeep and in fact are claimants in the respective claim petitions. Referring to the deposition of Kantibhai Veljibhai Padodara at Exh.73, it was contended by Mr. Dave that the said witness has clearly stated that the truck came from the wrong side and dashed with the jeep. Mr. Dave referring to the deposition of the witness – Kantibhai Veljibhai Padodara at Exh.73, also contended that the said witness has clearly stood the test of his testimony. In his cross-examination, nothing adverse is found. Mr. Dave further referring to deposition of Mavjibhai Veljibhai Bhadaniya at Exh.27 who happens to be the claimant of Motor Accident Claim Petition no.1445 of 1997 contended that the said witness has also categorically stated that the truck has come from the wrong side and nothing adverse is found. 7.3 Mr. Dave again referring to the deposition of the witness Kantibhai Veljibhai Padodara at Exh.73, contended that in fact, the said witness who is claimant in Motor Accident Claim Petition no.798 of 1998 was sitting in the front seat of the jeep along with both the deceased. 7.3 Mr. Dave again referring to the deposition of the witness Kantibhai Veljibhai Padodara at Exh.73, contended that in fact, the said witness who is claimant in Motor Accident Claim Petition no.798 of 1998 was sitting in the front seat of the jeep along with both the deceased. In light of the aforesaid, it was contended that 4 persons who were travelling in the same jeep have clearly deposed before the Tribunal in the respective claim petitions as to how the accident has occurred and therefore, the Tribunal is not correct in observing that there is no direct evidence. Mr. Dave further contended that the driver of the truck is not examined and the inference has therefore to be drawn against the truck. On the aforesaid grounds, Mr. Dave contended that upon appreciation of the evidence on record, the driver of the truck should be held to be solely negligent for the accident. On the aforesaid grounds, Mr. Dave contended that the appeals may be allowed and the appellant may be exonerated. 7.4 As far as appeal filed by the original claimants for enhancement, Mr. Dave contended that this Court may consider the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 and accordingly, may modify the award. 8. Per contra, Ms. Lilu K. Bhaya, learned advocate for the insurance Company has supported the impugned judgment and award. Ms. Bhaya also relied upon the Panchnama at Exh.43 and contended that the Tribunal has rightly appreciated the manner in which the accident has occurred and has correctly came to the conclusion that that the driver of the truck as well as the driver of the jeep both were negligent and has rightly held that the driver of the truck was liable to the extent of 70% and the driver of the jeep was liable to the extent of 30%. Ms. Bhaya contended that the Tribunal has thus correctly appreciated the evidence on record and no modification as far as the aspect of negligence is called for and the appeals filed by the Department being First Appeals no.1955 to 1959 of 2008 filed by the Department, being meritless, deserves to be dismissed. Ms. Bhaya contended that the Tribunal has thus correctly appreciated the evidence on record and no modification as far as the aspect of negligence is called for and the appeals filed by the Department being First Appeals no.1955 to 1959 of 2008 filed by the Department, being meritless, deserves to be dismissed. 8.1 It was further contended that as far as First Appeal no.2434 of 2008 is concerned, this Court may modify the award following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra). 9. Mr. Pankaj Desai, learned advocate for the original claimants has submitted that the Tribunal has taken into consideration the evidence on record and as far as the claimants are concerned, the aspect of negligence is not that vital. Mr. Desai further submitted that in Motor Accident Claim Petition no.1336 of 1997, the Tribunal has committed an obvious error in not considering the prospective income and even though the age of the deceased was 45/46 years, has given multiplier of 12, which deserves to be enhanced. Mr. Desai relied upon the judgment of the Hon'ble Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and Pranay Sethi (supra) to buttress his argument. Mr. Desai therefore submitted that on the aforesaid two grounds, the impugned judgment and award may be modified and appropriate enhancement of compensation may be granted by this Court. Mr. Desai candidly submitted that in the memo of appeal, other grounds, more particularly, the grounds as regards the interest and other grounds are raised. However, the same are not pressed. 10. No other or further grounds, contentions and/or submissions are made by the learned advocates appearing for the respective parties. 11. The appeals filed by the Department mainly relates to the aspect of negligence. In Paragraph 34 of the impugned judgment and award, the Tribunal has observed that the driver is the best person who knows how and in which manner the accident took place and has also taken note of the fact that the driver of the truck is not examined by the opponents, owner or insurance Company. In Paragraph 34 of the impugned judgment and award, the Tribunal has observed that the driver is the best person who knows how and in which manner the accident took place and has also taken note of the fact that the driver of the truck is not examined by the opponents, owner or insurance Company. It is, however, observed that the person who has given oral testimony before the Court has no personal knowledge of the accident took place at night and therefore, considering the Panchnama, has further observed that the Panchnama shows that both the vehicles collided with one another and were found in the middle of the road and therefore, has fixed the liability of truck driver to the extent of 70% and that the driver of the jeep to the extent of 30%. 12. While examining the aspect of negligence, it would be appropriate to reappreciate the evidence of Panchnama which shows how and in what manner the accident has occurred. Upon reappreciation of the evidence on record and more particularly, the Panchnama, the same shows that the jeep was found on heap of sand on its correct side i.e. left side, whereas, it is specifically mentioned in the Panchnama that the right side of the truck is found on Kaccha road. Further in the Panchnama, it is clearly mentioned that the jeep is found on its correct side and it is also mentioned that as the driver of the truck took the truck abruptly on the wrong side, the accident has occurred. Thus, the observation made by the Tribunal in Paragraph 34 in particular that the truck and jeep were found on the middle of the road is incorrect and incomplete reading of the Panchnama, as rightly contended by Mr. Dave, learned advocate for the appellants. Even considering the deposition of Kantibhai Veljibhai Padodara at Exh.73 who happens to be the claimant of Motor Accident Claim Petition no.798 of 1998 was himself travelling in the jeep and was sitting in the front seat of the jeep and therefore, the findings arrived at by the Tribunal that the said witness has no personal knowledge about the accident is incorrect. It is a matter of record the accident took place on the State Highway at night hours at about 09:30 p.m. and the Panchnama clearly shows the position of the jeep and the truck and upon reappreciating the evidence of Panchnama, the same gets corroborated to the version of witness Kantibhai Veljibhai Padodara at Exh.73 who was sitting in front side of the jeep. The evidence therefore clearly establishes the fact that the truck changed its side, came to the wrong side and dashed with the jeep, which was being driven on the correct side. The impact upon the jeep as can be found out from the bare reading of the Panchnama clearly shows that the collusion between two vehicles was so severe that the whole front side of the jeep is totally damaged, wherein driver as well as the persons sitting in the front lost their lives. Upon reappreciation of the evidence on record as a whole, we hold that as the truck driver was driving his truck on the wrong side and has dashed with the jeep, driver of the truck was solely negligent for the accident and the Tribunal has committed an obvious error in deciding the aspect of negligence. 13. As far as First Appeal no.2434 of 2008 is concerned, record indicates that the deceased was 46 years old and on the date of the accident and his salary was Rs.9,053/per month. Even as per the case of the appellants and the evidence on record and following the judgment of the Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), the original claimants would be entitled to increase in income by way of prospective income to the tune of 30% and the appropriate multiplier would be 13 instead of 12. Following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), the original claimants would be entitled to additional compensation of Rs.70,000/under conventional heads including funeral expenses. Having come to the aforesaid conclusion, the original claimants would be entitled to compensation as under: Income per month Rs.9,053/ 30% Prospective income +Rs.2,715/ Income per month Rs.11,768/ Onethird towards personal expenses Rs.3,922/ Income per month Rs.7,846/ yearly X 12 Yearly income Rs.94,152/ Multiplier X 13 Total Rs.12,23,976/ Compensation under different conventional heads + Rs.70,000/ Total compensation = Rs.12,93,976/ 14. Having come to the aforesaid conclusion, the original claimants would be entitled to compensation as under: Income per month Rs.9,053/ 30% Prospective income +Rs.2,715/ Income per month Rs.11,768/ Onethird towards personal expenses Rs.3,922/ Income per month Rs.7,846/ yearly X 12 Yearly income Rs.94,152/ Multiplier X 13 Total Rs.12,23,976/ Compensation under different conventional heads + Rs.70,000/ Total compensation = Rs.12,93,976/ 14. Thus, the original claimants would be entitled to total compensation of Rs.12,93,976/with proportionate costs and interest. As the Tribunal has awarded an amount of Rs.8,84,000/, the original claimants would be entitled to additional amount of Rs.4,09,976/. 15. As far as the interest is concerned, the Tribunal has rightly exercised its discretion and has awarded interest at the rate of 9% per annum from the date of filing of the claim petitions till December, 2000 and from January, 2001 till its realization at the rate of 6% per annum is correct and hence, on the enhanced amount, the original claimants would be entitled to interest at the rate of 9% per annum from the date of filing of the claim petitions till December, 2000 and from January, 2001 till its realization at the rate of 6% per annum. Thus, First Appeals no.1955 to 1959 of 2008 are allowed to that extent. The appellants are exonerated and the driver of the truck is held to be solely negligent for the accident. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional amount within a period of 3 months from today with proportionate cost and interest. First Appeal no.2434 of 2008 is partly allowed and the impugned judgment and award passed in Motor Accident Claim Petition no.1336 of 1997 is modified to the aforesaid extent. The insurance Company in the said appeal shall deposit the additional amount as awarded by this Court with the Tribunal within a period of three months from today. The amount lying with the Tribunal as deposited by the appellants in First Appeals no.1955 to 1959 of 2008 shall be refunded to the appellants. However, there shall be no order as to costs. Registry is directed to send the record and proceedings back to the Tribunal forthwith.