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Gujarat High Court · body

2022 DIGILAW 1029 (GUJ)

Bhartiben H. Mehta v. Babubhai Bhagwan Italiya

2022-09-12

A.J.DESAI, MAUNA M.BHATT

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JUDGMENT : A.J.DESAI, J. 1. By way of the present appeal under section 173 of the Motor Vehicles Act,1988, the appellants- original claimants have challenged the judgment dated 10/05/2012 and award dated 21/05/2012 passed by Motor Accident Claims Tribunal (Auxi.), City Civil Court, Ahmedabad in Motor Accident Claims Petition No.474 of 2003 for enhancement of amount of compensation awarded by the Tribunal as well as findings of the Tribunal about negligence of the driver of the car, in which, the deceased was traveling, to the extent of 20%. 2. The appeal came to be admitted vide order dated 04/09/2012. As per the order dated 12/01/2015, record and proceedings were called for from the learned Tribunal, which has been received by the Registry and has been placed for perusal of this court at the time of final hearing today for deciding the appeal finally. 3. We have heard Mr.Ketan Dave, learned advocate as well as Mr.Rajesh Shah, learned advocate appearing for the appellants as well as Mr.Palak Thakkar, learned advocate appearing for the contesting respondent-Insurance company, who had insured the vehicle i.e. truck bearing registration No.GJ-2U- 8702, with which the vehicle of the deceased (car) dashed. 4. Short facts, arising from the record of the case, are as under: That the deceased Harubhai Mehta, who was aged about 70 years and practicing senior lawyer of the High Court of Gujarat, was traveling in his Maruti Suzuki Car having registration No.GJ-18-A-4799, which was driven by his driver and when he was traveling on 01/12/2001 at about 8:00 p.m. along with his brother Mahendrabhai towards Bhavnagar and when he reached at the place of incident about 8 O'clock in the evening, the car dashed with the truck bearing registration no. No.GJ-2U-8702, which was wrongly parked on the road without any warning lights or applying any reflector or keeping parking lights on. The deceased Harubhai Mehta as well as his driver sustained serious injuries and succumbed to the death on the spot, whereas his brother Mahendrabhai sustained serious injury, for which, he was admitted in the hospital. An FIR at Exh.29 was registered with Velavadar Police Station at the instance of injured Mahendrabhai. Subsequent to the filing of the FIR, scene of offence panchnama at Exh.30 was prepared along with preparation of map of the incident. An FIR at Exh.29 was registered with Velavadar Police Station at the instance of injured Mahendrabhai. Subsequent to the filing of the FIR, scene of offence panchnama at Exh.30 was prepared along with preparation of map of the incident. The present appellant No.1 being widow of deceased Harubhai Mehta and appellant No.2 being son of the deceased filed a claim petition under section 166 of the Motor Vehicles Act and claimed compensation to the tune of Rs.1,26,25,000/- along with interest at the rate of 15% per annum. Insurance company of the truck filed written statements and opposed grant of any compensation, as prayed for, by the original claimants. After considering the computation of income produced by the original claimants, learned Tribunal by impugned judgment and award held the dependency income to the tune of Rs.5,88,075/-. Out of said amount, 20% was deducted on the ground that driver of the Maruti Suzuki car, in which, the deceased was traveling, was held negligent to the extent of 20% for the accident in question and therefore, it was held that the original claimants would be entitled to get dependency income to the tune of Rs.4,70,460/- for future loss of income. Thereafter, Rs.5,000/- was awarded towards funeral charges, Rs.20,000/- was awarded towards loss of consortium and Rs.10,000/- was awarded towards loss of estate and in all, it was held that the original claimants would be entitled to get total amount of Rs.5,05,460/- as compensation with interest at the rate of 9 % per annum from the date of presentation of the petition till the amount is deposited. Hence, this appeal. 5. Mr.Ketan Dave, learned advocate appearing for the appellants would submit that learned Tribunal has committed a grave error in calculating the income of the deceased. By taking us through the computation of income at Exhs.43, 44 and 45, he would submit that learned Tribunal has committed an error in arriving at income earned by the deceased in those three years. By taking us through Exh.43 i.e. computation of income for A.Y.1999-2000, he would submit that gross total income of the deceased was Rs.1,94,663/-, however, after certain deductions, the same has been reduced to Rs.1,64,400/-. He therefore would submit that his income should have been calculated as Rs.1,94,663/- instead of Rs.1,64,400/- for the said year. By taking us through Exh.43 i.e. computation of income for A.Y.1999-2000, he would submit that gross total income of the deceased was Rs.1,94,663/-, however, after certain deductions, the same has been reduced to Rs.1,64,400/-. He therefore would submit that his income should have been calculated as Rs.1,94,663/- instead of Rs.1,64,400/- for the said year. By taking us through Exh.44 i.e. computation of income for A.Y.2000-2001, he would submit that gross total income of the deceased was Rs.2,30,805/-, however, after certain deductions illegally made by the Tribunal, the same has been reduced to Rs.2,18,810/-. By taking us through Exh.45 i.e. computation of income for A.Y.2001-2002, he would submit that gross total income of the deceased was Rs.1,69,162/-. Learned Trial Court has committed an error in calculating his income at Rs.1,57,160/-. He, therefore, would submit that taking average of those three years, amount would rise and accordingly additional amount would be awarded. 5.1 By relying upon the decision of Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 , he would submit that learned Tribunal has committed an error in granting Consortium, which would come to Rs.80,000/- considering family members of the deceased. Loss of Estate come to Rs.15,000/- whereas Funeral expenses come to Rs.15,000/- he therefore would submit that accordingly amount shall be awarded. 5.2 He would further submit that learned Tribunal has committed gross error in holding driver of the car, in which, the deceased was travelling negligent, to the extent of 20%, since, material on record clearly establishes that incident had taken place in the month of December at 8:00 pm, when it would be dark pitch in open area and particularly on the highway. He would submit that panchnama at Exh.30, establishes that no reflectors were applied on the back side of the truck, which was stationary on the road itself. 5.3 By taking us through the map produced along with the panchnama, makes it clear that the truck was parked on the road itself. The vehicle was stationary even on the kachha road, which clearly indicates that the driver of the truck was completely negligent in parking the vehicle on the highway and that too in the night hours in the month of December. The vehicle was stationary even on the kachha road, which clearly indicates that the driver of the truck was completely negligent in parking the vehicle on the highway and that too in the night hours in the month of December. He would further submit that insurance company has not examined the driver of the truck, who had parked the vehicle on the road in support of his submission about contributory negligence on the part of the driver of the car, in which the deceased was traveling. He therefore would submit that the impugned judgment and award passed by the learned Tribunal may accordingly be modified. 6. On the other hand, Mr.Palak Thakkar, learned advocate appearing for the respondent- insurance company would submit that learned Tribunal has not committed any error in calculating the income of the deceased. By taking us through Exh.43 i.e. computation of income for A.Y. 1999-2000, he would submit that after all deductible income, his income is calculated as Rs.1,64,400/- and he had paid Rs.1,702/- towards income tax, which was deducted from the said amount and therefore, his net income was Rs.1,62,698/-. By taking us through Exh.44 i.e. computation of income for A.Y. 2000-2001, he would submit that after all deductible income, his income is calculated as Rs.2,18,810/- and he had paid Rs.31,995/- towards income tax, which was deducted from the said amount and therefore, his net income was Rs.1,86,815/-. By taking us through Exh.45 i.e. computation of income for A.Y. 2001-2002, he would submit that after all deductible income, his income is calculated as Rs.1,57,160/- and he had not paid income tax therefore, his net income was Rs.1,57,160/-. He therefore would submit that income calculated by the Tribunal may not be altered. 6.1 As far as the question of holding the car driver negligent to the extent of 20% is concerned, he would submit that though truck might have been parked on the road itself, it was also the duty of the vehicle passing on the highway to drive the vehicle in slow speed so that if any vehicle is parked, he can slow down the car and avoid such accident. By relying upon the decision of the Hon'ble Apex Court in the case of Raj Rani & Ors. By relying upon the decision of the Hon'ble Apex Court in the case of Raj Rani & Ors. V/s. Oriental Insurance Company Limited and others reported in (2009) 13 SCC 654 , he would submit that in similar type of facts, the finding of the Tribunal as well as of High Court of contributory negligence of both the vehicles i.e. one stationary and one in motion condition, 50% - 50% is appropriate and therefore, the appeal on that ground also be dismissed. 7. We have heard learned advocates appearing for the respective parties and gone through the record and proceedings of the case and the judgment and award of the Tribunal. 8. As far as submission made by learned advocate Mr.Ketan Dave with regard to income of the deceased is concerned, computation of income refers various type of incomes and expenses, which have been granted under the provisions of the Income Tax Act. The deceased was a senior advocate and he was claiming certain allowances, some expenses and after calculating the same, gross total income for A.Y.1999-2000 is shown as Rs.1,94,663/-. However, interest from the bank and notified company, is rightly deducted from the gross total income and further donations have also been deducted and ultimately, for the purposes of net taxable income, the same comes to Rs.1,64,400/-. The deceased had paid tax on the said income to the tune of Rs.1,702/- and therefore, tribunal has rightly calculated his net income as Rs.1,62,698/- for A.Y.1999-2000. Similarly, gross total income of the deceased for A.Y.2000-2001 is shown as Rs.2,18,810/- and the deceased had paid income tax upon the said income to the tune of Rs.31,995/- and therefore, the tribunal has rightly calculated his net total income as Rs.1,86,815/-. Gross total income of the deceased for A.Y.2001-2002 is shown as Rs.1,57,160/- and the deceased had not paid any income tax upon the said income and therefore, his net income comes to Rs.1,57,160/-. Therefore, we are in agreement with the submissions made by learned advocate Mr.Thakkar with regard to computation of income. We also found that considering 70 years of age of the deceased, multiplier of 5 has been rightly applied by the tribunal. Considering the age of the deceased, the claimants would not be entitled for future prospective income. Hence, average income of three years would be Rs.1,68,891/- and tribunal has rightly deducted 1/3rd of the said amount, which comes to Rs.56,297/-. Considering the age of the deceased, the claimants would not be entitled for future prospective income. Hence, average income of three years would be Rs.1,68,891/- and tribunal has rightly deducted 1/3rd of the said amount, which comes to Rs.56,297/-. Therefore, future dependency loss of income to the family members would be Rs.1,12,594/- and multiplier of 5 is rightly applicable and therefore, it would be Rs.5,62,970/-, consortium to the tune of Rs.80,000/-, loss of estate to the tune of Rs.15,000/- and Funeral expenses to the tune of Rs.15,000/-. In all, the claimants would be entitled for Rs.6,72,970/- as compensation. We make round figure to Rs.6,73,000/-. 9. As far as negligence is concerned, we have thoroughly gone through the panchnama at Ex.30 and Map of the spot, which is part of panchnama. It is an undisputed fact that the incident has taken place at around 8:00 pm in the month of December. It is fact that in the month of December at around 8:00 pm, it would be dark pitch on the highway and therefore, it is expected that if a person parks his vehicle for whatever the reasons on the road itself, he supposed to keep the parking lights on or apply reflectors on the back side of the vehicle so that the vehicle passing on the highway at night time, can find out about a parked vehicle. Panchnama and map suggest that the vehicle was parked on the road itself, without keeping parking lights on or applying any reflectors on the back side of the vehicle and therefore, driver of the car in which the deceased was travelling dashed with the truck from the back side and therefore, we are of the opinion that learned Tribunal has committed an error in holding the driver of the car liable to the extent of 20%. 10. Considering the facts of the case on hand and the case relied upon Mr.Palak Thakkar in case of Raj Rani & Ors. (supra), are different and not applicable to the present case. We accept the submission of learned advocate Mr.Ketan Dave so far as finding of the tribunal about contributory negligence is concerned and we hereby hold that driver of the car was not negligent to the extent of 20% in causing the accident. 11. (supra), are different and not applicable to the present case. We accept the submission of learned advocate Mr.Ketan Dave so far as finding of the tribunal about contributory negligence is concerned and we hereby hold that driver of the car was not negligent to the extent of 20% in causing the accident. 11. We hereby hold that driver of the truck, which is insured with the respondent company, was totally negligent on parking the vehicle on road itself in night time and therefore we hereby held driver of the truck 100% negligent in causing the accident. Hence, we hereby allow this appeal in part. The appellants - original claimants are entitled to get additional amount of Rs.1,67,540/- (Rs.6,73,000/- - Rs.5,05,460/-) with interest at the rate of 6% per annum from the date of filing of the petition till the amount is deposited with the Tribunal. Respondent- Insurance company is hereby directed to deposit the aforesaid additional amount with the Tribunal within a period of 8 weeks from the date of receipt of this order. 12. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.