FA/649/1988 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 649 of 1988 WITH CIVIL APPLICATION No. 10554 of 2006 WITH CROSS OBJECTIONS No. 3 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JETHABHAI PUNABHAI VANKAR & 2 - Appellant(s) Versus VIDHULABEN TRIBHOVAN CHOVATIA - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1 - 3. (MR JAYANT PATEL) for Defendant(s) : 1, MR HM LATHIA for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 17/01/2007 ORAL COMMON JUDGMENT : Mr. RH Mehta, learned advocate for the appellant seeks FA/649/1988 2/7 JUDGMENT permission to transpose appellant no. 3 – New India Assurance Co. Ltd., as respondent no. 2. It is stated that Mr. AR Mehta, learned advocate has instructions to appear in this matter for respondent no. 2. He undertakes to file his Vakalat Patra on or before 22/1/2007. 2. The appellants are original opponents nos. 1 and 2. Respondent no. 1 preferred M.A.C. Petition No. 75 of 1984 against them and respondent no. 2 – The New India Assurance Co. Ltd., for claiming compensation of Rs.2 lacs for the death of her son Bhupendra Tribhovan Chovatia in a vehicular accident which occurred on 29/9/1983 at about 6.30 p.m., at Gondal. In this appeal, the appellants have challenged the judgment and award made by the Motor Accident Claims Tribunal [ Main] Rajkot dated 17/3/1986 in the said petition, whereby respondent no. 1 has been granted compensation of Rs.82,500/- together with interest at the rate of 6% p.a., from the date of application till realization and proportionate costs. 2.1. Respondent no. 1 has filed Cross Objections for claiming enhancement of the award i.e., to claim balance amount of Rs.1,17,500/-. 2.2. On 2/9/1983 son of respondent no. 1 was knocked down around 6.30 pm by a Dumper bearing registration No. GRS 6341, which was driven by appellant no. 1, owned by appellant no. 2 and insured with respondent no. 2. At FA/649/1988 3/7 JUDGMENT the time of accident, deceased was riding on his bicycle in the town of Gondal and he was proceeding from station to plot street no. 10. He was knocked down from behind by appellant no. 1 while he was driving his Dumper. It is averred by respondent no. 1 that he drove the vehicle rashly and negligently and, therefore, the accident occurred. The deceased fell off his bicycle and he was crushed underneath the rear wheel of the Dumper. Respondent no. 1, therefore, preferred aforesaid claim petition for seeking compensation of Rs.2 lacs. The deceased was aged about 20 years at the time of his death. The claim was resisted by appellants as well as respondent no. 2. Appellants filed reply at Exh. 14; whereas respondent no. 2 filed reply at Exh. 17. They denied the averments made by the claimant i.e. Respondent no. 1. According to them, there was no negligence on the part of appellant no. 1. They also denied the income of the deceased. So far as the respondent no. 2 is concerned, it averred that the deceased himself was negligent atleast to the extent of 50% and, therefore, he had contributed to the occurrence of accident. 2.3. On the basis of the material produced before it, the Tribunal held that the deceased died on account of the injuries received by him in the accident which occurred solely due to negligence of appellant no. 1. It also came to conclusion that respondent no. 1 was entitled to receive Rs.82,500/- by way of FA/649/1988 4/7 JUDGMENT compensation. To challenge these findings the appellants have preferred this appeal; whereas respondent no. 1 has filed Cross Objections on the ground that the compensation awarded by the Tribunal is inadequate and it is required to be enhanced. 3. I have heard Mr. RH Mehta, learned advocate appearing for the appellants and Mr. Brahmbhatt, learned advocate appearing for respondent no. 1. It is submitted by Mr. Mehta that the judgment of the Tribunal is erroneous to the extent it holds appellant no. 1 solely responsible for causing the accident. It is his submission that the compensation awarded by the Tribunal is on a higher side. 3.1. As against that, it is submission of Mr. Brahmbhatt that the amount of compensation is inadequate and it is required to be enhanced. 4. I have carefully considered the submissions of learned advocates. I have also perused the record and proceedings of the case. It is an admitted position that the deceased died in the vehicular accident which took place on 2/9/1983 around 6.30 pm. Respondent no. 1 has led evidence, oral as well as documentary. Appellant no. 1 has examined himself to give account of the accident. Evidence of respondent no. 1 is at Exh. 22; whereas evidence of FA/649/1988 5/7 JUDGMENT appellant no. 1 is at Exh. 38. It appears from the record that when the deceased was proceeding on his bicycle, the Dumper came from behind and collided with the cycle of the deceased. As a result of the same, he was thrown off and he was crushed underneath the rear wheel of the Dumper. This fact is adequately borne out from the First Information Report which was brought on record at Exh. 24. So far as the scene of occurrence is concerned, it is adequately spelt out from the panchnama at Exh. 25 that appellant no. 1 could have easily seen the deceased going ahead of him. Considering the contents thereof and also the contents of the FIR, it clearly emerges that there was 100% negligence on the part of appellant no. 1. He failed to exercise due care and caution. On the contrary, he drove the vehicle in such a negligent and rash manner that it resulted into the accident in question and the deceased died in it. I, therefore, fully agree with the finding given by the Tribunal on this count. 4.1. So far as the quantum of compensation is concerned, as already stated above, the deceased died at the age of 20. He was working as Part-time Compounder. He was also having additional income of Rs.100/- over and above Rs.250/- which he received while working as Compounder. Considering the fact that the deceased was 20 years old and that he was drawing income of FA/649/1988 6/7 JUDGMENT around Rs.350/- per month at the time of his death, the Tribunal has assessed his income at Rs.500/- as prospective income. The Tribunal has adopted the multiplier of 15 and has assessed loss of dependency benefit at Rs.72,000/-. It has awarded Rs.10,000/- by way of conventional amount and Rs.250/- for the after death ceremony and Rs.250/- for the damage to the bicycle. I have closely perused the said discussion. Mr. Mehta has of-course tried to suggest that the multiplier is on a higher side, but considering the age of respondent no. 1 as well as age of deceased, I do not find any error having been committed by the Tribunal on that count. The Tribunal on the facts of the case, was justified in holding that the income of the deceased would have been Rs.500/- per month and he would have spent about Rs.100/- towards his personal expenditure. This, therefore, can by no stretch of imagination be said to be on higher side. Hence, on this count also Mr. Mehta's submission cannot be accepted. 5. So far as the Cross Objection is concerned, Mr. Brahmbhatt has not seriously pressed it. As already stated above, the compensation determined by the Tribunal appears to be just and proper. In short, I do not find any merit in this appeal and hence it is dismissed and I also do not find any merit in the cross objection and it is also dismissed with no order as to costs. Considering the fact that the accident is very old the Tribunal is directed to encash the fixed FA/649/1988 7/7 JUDGMENT deposits even if they are not matured and pay the amount together with interest accrued thereon by Account Payee Cheque to respondent no. 1 after proper verification, unless respondent no. 1 expresses her willingness to continue Fixed Deposit Receipt till its maturity. In view of the above, Civil Application does not survive and it is disposed of accordingly. Registry is directed to re-transmit R & P to the concerned Tribunal forthwith. [ Akshay H. Mehta, J. ] * Pansala.