FA/1896/2002 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1896 of 2002 With FIRST APPEAL No. 111 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= NEW INDIA ASSURANCE CO. LTD - Appellant(s) Versus SHANTUBEN DIYALBHAI & 5 - Defendant(s) ========================================================= Appearance : MR AJAY R MEHTA for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, MR DC SEJPAL for Defendant(s) : 1 - 2, 4, DELETED for Defendant(s) : 3, MR NIRZAR S DESAI for Defendant(s) : 5 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 03/04/2008 FA/1896/2002 2/12 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of the judgment and award rendered by M.A.C.T.(Main) at Bhavnagar in M.A.C.P.No.19 of 1997 on 30.4.2002. 2. The said petition was preferred by heirs and legal representatives of one Diyalbhai P Kikani who died in an accident that occurred on 2.11.1996 at about 3.00 hours on Bhavnagar-Mahuva road between the villages Budhel and Kobdi. The claimants claimed a compensation of Rs.14 lacs. 3. According to the claimants (appellants in First Appeal No.111 of 2004), the deceased was going to his agricultural field riding his Luna no.GJ-4F- 1867 on Bhavnagar-Mahuva highway at a moderate speed and on correct side of the road. When he reached the place of accident, a Tata Sumo vehicle came from opposite direction bearing no.GJ-1HH-8442 which was being driven by original opponent no.1 in a rash and negligent manner and at a high speed. The said vehicle came on wrong side and dashed against the Luna resulting into fatal injuries to the deceased and damage to the Luna. 3.1. The case of the driver of the Sumo vehicle as emerging from his written statement Exh.24 is that he was proceeding from Alang to Bhavnagar driving the vehicle slowly and on correct side of the road. When FA/1896/2002 3/12 JUDGMENT he reached near the place of accident, he noticed that a truck was coming from opposite direction followed by a State Road Transport Bus. According to the driver, when the bus was about to cross his vehicle, the deceased suddenly emerged from behind the S.T.Bus without any signal and tried to cross the road on his Luna and this resulted into collision between the two vehicles. According to him, there was no rashness and no negligence on his part, but the accident occurred because of the negligence and rashness on the part of the deceased. 3.2. The appellant in First Appeal No.1896 of 2002, the Insurer of Sumo vehicle filed its written statement at Exh.12 which is more or less in form of denial of the averments made in the claim petition. 4. The Tribunal, after considering the evidence led by the parties, came to the conclusion that the accident occurred because of the negligence on the part of both, the driver of Sumo vehicle and the deceased and apportioned the negligence in ratio of 90:10 respectively. 4.1. The Tribunal came to the conclusion that the claimants were entitled to a total compensation of Rs.3,48,000/- on account of the death of the deceased as well as damage to Luna. The Tribunal, thereafter, deducted 10% of the said amount to adjust the contribution of the deceased to the cause of accident and arrived at a datum figure of Rs.3,13,200/- as FA/1896/2002 4/12 JUDGMENT compensation receivable by the claimants. The Tribunal directed the opponents to pay the said compensation with proportionate costs and interest at the rate of 12% from the date of the petition till satisfaction of the award. 5. Dissatisfied by the award, the Insurer of Sumo vehicle has preferred First Appeal No.1896 of 2002 and the claimants have preferred First Appeal No.111 of 2004 praying for enhanced compensation. 6. We have heard learned advocate Mr.Parikh appearing for Mr.Mehta for the appellant Insurance Company in First Appeal No.1896 of 2002 and for the respondent Insurance Company in the other appeal. We have also heard learned advocate Mr.Sejpal appearing for the claimants in both the appeals. We have also heard learned advocate Mr.Nirzar Desai for driver and owner of Sumo vehicle. 7. At the outset, we notice and there is no controversy on the fact that the Insurer had not preferred any application before the Tribunal claiming right for wider defence as envisaged under Section 170 of the Motor Vehicles Act and no orders are passed by the Tribunal granting wider defence to the Insurer. In this fact situation, the appeal by the Insurance Company alone on grounds other than available to it under Section 149 of the Motor Vehicles Act and in absence of any ground available under the said provision would not be competent as is FA/1896/2002 5/12 JUDGMENT the settled legal position. (United India Insurance Company Limited Vs. Hetalbhai C Bagadia and others (2000 ACJ 1356)). 7.1. It is contended by learned advocate Mr.Parikh that though the application under Section 170 of the MV Act was not given, learned advocate for the Insurance Company was permitted to cross examine the witnesses on all counts and therefore, there was a constructive permission and satisfaction of the Tribunal about the existence of the grounds making available wider defence to the Insurance Company. In our view, such an inference is not possible to be drawn in light of the decision in case of United India Insurance Company Limited Vs. Hetalbhai C Bagadia and others (supra) where on an identical set of situation, the Court took a view that such an inference is impermissible. The Court held that the Tribunal cannot be said to have made any implied reasoned order permitting the Insurance Company to avail of a larger defence on merits of the case in absence of an application under Section 170 of the MV Act, 1988. That was a case where the Insurance Company had even taken a plea in the written statement about likely collusion. The view was taken on the ground that there was nothing on record of the proceedings in that case to show that the Tribunal had applied its mind for reaching a satisfaction that the conditions mentioned in Section 170 of the MV Act, 1988 existed and that the Tribunal had made an order much less a reasoned order which would enable FA/1896/2002 6/12 JUDGMENT the Insurance Company to avail of a wider defence on merits. The Court then observed that merely because the advocate for the Insurance Company was allowed to cross examine the witnesses of the claimants, it can never be inferred therefrom that it should be treated as an order granting permission to the Insurance Company to avail a larger / wider defence on merits. 7.2. Under the circumstances narrated hereinabove, we are unable to accept the contention raised by learned advocate Mr.Parikh and hold that the appeal by the Insurance Company i.e. First Appeal No.1896 of 2002 is not competent. It would, therefore, stand dismissed. 8. Now coming to the appeal preferred by the claimants, learned advocate Mr.Sejpal submitted that the Tribunal has ignored positive evidence in form of Income Tax Returns of the deceased while assessing his income for the purpose of dependency loss. He has drawn our attention to Exh.46 which is a return of income for the year 1995-96 where the deceased had shown income of Rs.42,000/- by way of interest and an income of Rs.1,17,336/- out of agriculture after deducting the expenditure on agriculture. Our attention is drawn to Exh.47 which is return for the year 1996-97 where the interest income shown is Rs.36,000/- and net agricultural income shown is Rs.93,000/-. Mr.Sejpal submitted that the Tribunal has considered prospective income at Rs.4,000/- i.e. Rs.48,000/- per annum in face of these income tax FA/1896/2002 7/12 JUDGMENT returns. Mr.Sejpal submitted that the accident occurred on 2.11.1996. The income tax return for the year 1996-97 filed posthumously has shown fall in the agricultural income. This reflects that the agricultural income fell because of the death of the deceased and, therefore, the compensation awarded under the head of loss of dependency may be enhanced suitably. 9. Learned advocate Mr.Parikh has opposed this appeal. According to him, the Tribunal has already benefited the claimants by holding that the driver of the Sumo vehicle was negligent to the extent of 90%. In fact, it should have been 50% or at the best 70%. He also submitted that the age of the deceased was 52 years and the Tribunal has adopted multiplier of 10 which is again on higher side and the claimants are, therefore, benefited in that manner also and, therefore, if the datum figure of compensation is considered, it can be considered as a just compensation and, therefore, may not be interfered with. 10. We have considered rival side contentions and have examined the R & P. 11. Just to satisfy and examine the question raised by learned advocate Mr.Parikh about the negligence, we have examined the evidence in form of panchanama of place of incident. There is no oral evidence led by either side on question of FA/1896/2002 8/12 JUDGMENT negligence. If the panchanama Exh.29 is seen, we find that the Sumo vehicle had made brake marks of length of 82-90 ft., on the road. It was lying nearer to the left in edge of the road but not close to it. It is also noticed that 8-10 ft., ahead of the place where the Sumo vehicle was lying, there are marks of blood to indicate the place where the deceased lied lastly. These factors would attract principle of res-ipsa loquitur. The Sumo vehicle was being driven not at high speed but at a very very high speed which resulted into it being dragged for about 80-90 ft., even after the application of brakes which caused the brake marks on the road. High speed on a high way cannot be considered as synonymous to rashness or negligence but excessively high speed which disabled the driver from stopping the vehicle and averting the accident can certainly be considered as rashness and negligence on part of the driver. The situation indicated above is indicative of the fact that the driver must have seen the deceased crossing his path at least from a distance of more than 100 ft., whereafter he applied the brakes but could not stop the vehicle as it dragged on for a distance of about 90 ft. The thinking time or the reflex time that is consumed when the driver noticed some obstruction and reacts to it has always to be provided for by a driver while driving a vehicle consciously. The greater speed, the greater distance would be covered by the vehicle by the time the driver would react to the emergent situation. In the instant case, the driver of the Sumo vehicle does not seem to have FA/1896/2002 9/12 JUDGMENT considered any of these aspects. He was driving a relatively larger and heavier vehicle and greater degree of care and caution was expected of him. The driver of such a vehicle has to drive the vehicle in a manner where he can meet with any unanticipated situation. 11.1 We also notice that the place of incident is located on a straight highway where there is no junction nor any approach road. The driver of the Sumo vehicle could not have anticipated such an action on part of the deceased that is crossing the road suddenly by taking the vehicle on wrong side but as we have said earlier, the driver of heavier vehicles have to be ready or have to anticipate the unanticipiable and have to be ready to meet with such situations. 12. In view of the above fact situation, we are of the view that the Tribunal was justified in attributing 90% negligence on the part of the driver of the Sumo vehicle and 10% on the part of the deceased. The contention of learned advocate Mr.Parikh, therefore, that the claimants are already benefited by the finding of the Tribunal on negligence of the deceased only to the extent of 10% cannot be accepted. 13. Now coming to the question of quantum, we notice evidence that deceased had 30 vighas of irrigated agricultural land. He used to file his FA/1896/2002 10/12 JUDGMENT income tax returns which reflected the income under two heads namely interest and agriculture. The evidence of the son of the deceased indicates that the interest income has remained constant. It has also come in evidence that the lands are still there and are being cultivated. It has also come in evidence that the lands are being cultivated on crop share basis and that the income from agriculture is diminished. This aspect, apart from his oral say, is reflected in the income tax returns as well. The net income out of agriculture for the year 1994-95 was Rs.1,17,336/- (Exh.46) which has fallen to Rs.93,000/- in the year 1996-97 (Exh.47), probably because of death of the deceased on 2.11.1996. 13.1. In view of the fact that the agricultural lands still remain and are being cultivated, the last income from the agriculture because of death of the deceased has to be assessed in form of his personal skill and supervisory abilities. The Tribunal has assessed the income of the deceased at Rs.4000/- per month out of agriculture as prospective income. In our view, from the figures that are reflected in income tax returns and the deposition of son of the deceased, the actual income of the deceased out of agriculture at the time of his death can be assessed at Rs.4000/- per month. For arriving at the prospective income of the deceased, double the said amount will have to be added to that amount which would be Rs.12000/- and the said figure will have to be then divided by two which would bring a datum FA/1896/2002 11/12 JUDGMENT figure of Rs.6000/- per month as prospective income of the deceased. 13.2. The deceased must have been spending on his own self and for his profession, vocation etc. Therefore, applying the Rule of Thumb, 1/3rd of the said amount has to be deducted for assessing the dependency which would bring the dependency amount to Rs.4000/-. The annual dependency loss for the claimants,therefore, can be considered as Rs.48000/-. Considering the fact that the age of the deceased was 52 years, the multiplier of 9 can be adopted keeping in mind the principles laid down in Tamil Nadu State Road Transport Corporation V/s S.Rajapriya and others, (2005)6 SCC 236 which would fetch an amount of Rs.4,32,000/- as compensation under the head of loss of dependency. Added to this would be compensation under other heads as awarded by the Tribunal namely Rs.8000/- for damage to Luna, Rs.10000/- for consortium, Rs.5000/- for loss to estate, Rs.5000/- for love and affection and Rs.5000/- for funeral expenses totalling to Rs.4,65,000/-. 13.3. This will have to be reduced by 10% which would bring the datum figure of compensation to Rs.4,18,500/- as against Rs.3,13,200/- awarded by the Tribunal. 13.4. The claimants would be entitled to proportionate costs on the enhanced amount of FA/1896/2002 12/12 JUDGMENT compensation so also an interest @9% from the date of application till satisfaction of the award on the enhanced amount of compensation. 14. First Appeal No.1896 of 2002 stands dismissed and First Appeal No.111 of 2004 stands partly allowed. Award accordingly. ( A.L.DAVE, J )( SHARAD D DAVE, J ) srilatha