FA/971/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 971 of 2005 With FIRST APPEAL No. 1922 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 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 ? ========================================= MADHUBEN WD/O DHIRUBHAI BHEMABHAI PATEL & ORS Versus IBRAHIM MOHMADBHAI & ANR ========================================= Appearance in FIRST APPEAL No. 971 of 2005 : MR PRAVIN GONDALIYA for Appellants RULE SERVED for Respondent No.1 MRS VASAVDATTA BHATT for Respondent No. 2 Appearance in FIRST APPEAL No. 1922 of 2005 : MRS VASAVADATTA BHATT for Appellants MR PRAVIN GONDALIYA for Respondents No.1 -5 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/09/2008 FA/971/2005 2/6 JUDGMENT ORAL COMMON JUDGMENT :(Per : HON'BLE MR.JUSTICE J.R.VORA) 1 Both the Appeals are filed against the common Judgment and Award and, hence, both the Appeals are heard together. Appellants of First Appeal No.971 of 2005 preferred Motor Accident Claims Petition No.120 of 1996 before the Motor Accident Claims Tribunal, Sabarkantha at Modasa, for compensation of Rs. 12,00,000/- for the death of Dhirubhai Bhemabhai Patel in vehicular accident. The accident occurred on 30.12.1995 at 7.15 a.m. on Modasa Sayra Road, wherein deceased Dhirubhai was driving a scooter, bearing Regn. No. GJ-9-2492 and dashed with a Bus, bearing Regn. No. GJ-1-Z-2175, which was driven by Opponent No.1 and owned by Opponent No.2 ST Corporation. Dhirubhai Bhemabhai died on the spot. Applicant No.1 Madhuben is widow of the deceased and applicants No. 2 to 5 are children of the deceased. Learned Tribunal after hearing the parties, awarded an amount of Rs. 6,10,000/- by way of compensation to the applicants with running interest at the rate of 9% per annum from the date of application till realization. Original claimants had preferred First Appeal No. 971 of 2005 for enhancement while First Appeal No. 1922 of 2005 is preferred by the ST Corporation for reduction of amount of compensation on the ground of contributory negligence of the deceased. FA/971/2005 3/6 JUDGMENT 2 After perusing the evidence produced on record like FIR, panchnama and the oral evidence, the learned Tribunal came to the conclusion that opponent No.1 did not appear before the Tribunal to explain the circumstances of the accident and in view of the evidence of Jitendrakumar Navnitbhai Patel at Exhibit-33, opponent No.1 driver of the ST was undoubtedly negligent, who caused the accident. Thereafter, on assessment of compensation, learned Tribunal came to the conclusion that, though it was argued that, along with the job of teacher, deceased was earning on account of milk business, income of the deceased from the job of teacher, could only be taken into consideration. It was proved that, at the time of death, his income was Rs. 5,785/- p.m. and deceased was spending Rs. 500/- towards petrol for commuting to and fro from the house to the place of job, his net income was considered to be Rs. 5,000/-. After considering the prospective income, the learned Tribunal assessed the monthly income of the deceased to be Rs. 7,500/- and deducted 1/3 for self-expense of the deceased and took into consideration the dependency benefits at Rs. 5,000/- p.m. ie. Rs Rs. 60,000/- per year. Having regard to the age of the deceased at the time of the accident was of 45 years, he was awarded 10 multiplier. The learned Tribunal also awarded Rs. 5,000/- towards consortium and Rs. 2,500/- towards loss of estate, thereby totalling the FA/971/2005 4/6 JUDGMENT income, compensation of Rs. 6,10,000/-was awarded. 3 Learned Advocate Mr. P.S. Gondaliya for the Appellants in First Appeal No. 971 of 2004 and for the respondents in First Appeal No. 1922 of 2005 while learned Advocate Mrs. Vasavadatta Bhatt for the appellant in First Appeal No. 1922 of 2005 and respondent No.2 in First Appeal No. 971 of 2005 were heard in detail. 4 Mostly in First Appeal No. 971 of 2005 it was argued that the learned Tribunal did not take into consideration other income of the deceased from milk business. That even according to Schedule-II, the applicants were required to be given 16 multiplier on dependency benefits and very meager amount of loss of estate is awarded by the Tribunal. While on the other hand, learned Advocate Mrs. Vasavadatta Bhatt has vehemently argued that this is a case of contributory negligence on the part of the deceased and the compensation awarded to the applicants are required to be slashed down to that extent. It is submitted that it is a head on collision and though the deceased was driving lighter vehicle, it could not be said that the deceased was not at all negligent. 5 We have considered the contentions raised by both the sides FA/971/2005 5/6 JUDGMENT in detail. We have gone into the record and proceedings which we have called from the Tribunal as well as we are provided with the paper book and going through all these, it clearly appears that the quantum of compensation which is awarded by the Tribunal requires no interference at all. The learned Tribunal has rightly rejected the contention that the deceased had other income from milk business, but that was the business of the family and not exclusively of the deceased, that is amply made clear. The deceased was a full time teacher and could not have contributed towards the business of milk. The learned Tribunal also applied the multiplier of 10 after assessing the dependency benefits correctly. Schedule which is pressed in service is not mandatory and each case has to be judged on its own merits. Having regard to the age of the applicants as well the deceased, we found that 10 multiplier is reasonable and proper to be awarded in the facts and circumstances of the present case. We do not agree that the amount of loss of estate is awarded meager. At the same time we cannot accept the contention of the other side - ST Corporation that the deceased was 30% negligent in causing the accident. We have gone through the First Information Report, which is placed on record at Exhibit-21. It becomes clear that the ST bus was in excessive speed and dashed with the scooter driven by the deceased. Not only that, the opponent No.1 Driver did not step in the witness box to clarify the accident. Whatever established from the FA/971/2005 6/6 JUDGMENT oral evidence of applicant No.1, and from the First Information Report placed on record at Exhibit – 21 and panchnama prepared and copy of which is placed at Exhibit -22, only one conclusion that we draw is that the accident occurred on account of negligence on the part of the ST Driver - opponent No.1 only. 6 In above view of the matter, the impugned judgment and Award in both the Appeals requires no interference and, hence First Appeal No. 917 of 2005 and First Appeal No.1922 of 2005 both stands dismissed. The Tribunal is directed to disburse the amount as per the Award. Interim relief granted vide order dated 11.7.2005 in C.A. No. 5519 of 2005 in First Appeal No.1922 of 2005 and confirmed vide order dated 21.11.2005 shall stand vacated. (J. R. VORA, J.) (Z.K.SAIYED, J.) pnnair