FA/2579/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2579 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 ? ========================================================= JAGDISHBHAI SRAVANSINGH RAJPUT - Appellant(s) Versus BHAILALBHAI RUGHNATHJI RATHOD & 1 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, DS AFF.NOT FILED (R) for Defendant(s) : 1, MRS VASAVDATTA BHATT for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 23/07/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr.Sandip C. Shah for the appellant original claimant and learned Advocate Mrs.Vasavdatta Bhatt for the respondent No.2 FA/2579/2007 2/9 JUDGMENT Gujarat State Road Transport Corporation. 2. In this appeal, the appellant original claimant has challenged the award passed by MACT (Aux.) at Gandhinagar in MACP No. 2007 of 1990 dated dated 10th October, 2003 wherein the Claims Tribunal has awarded compensation of Rs.47968.00 in favour of the appellant claimant with interest thereon at the rate of 9 per cent per annum. 3. Learned Advocate Mr. Shah has submitted that the Claims Tribunal has committed gross error in coming to the conclusion that the claimant is also liable for contributory negligence to the extent of 20% for the accident in question. He also raised contention that the prospective future income of the claimant has also not been taken into account by the claims tribunal and in doing so, the claims tribunal has committed an error. He also submits that the salary of the claimant of Rs.1500.00 as assessed by the claims tribunal is on lower side and the amount awarded by the claims tribunal for pains, shock and suffering is also on lower side and, therefore, reasonable enhancement is necessary in view of the accident and disability suffered by the claimant. 4. On the other hand, learned advocate Mrs. Vasavdatta Bhatt for the respondent GSRTC has submitted that the claims tribunal has rightly examined the matter. There was 20 per cent negligence looking to the panchanama and FA/2579/2007 3/9 JUDGMENT evidence on record and claims tribunal has rightly decided that aspect and for that, no error has been committed by the claims tribunal. She also submitted that the salary of Rs.1500.00 was also rightly assessed by the claims tribunal because salary certificate produced by the claimant was of the year 1996 and 2001 which are totally irrelevant and in view of the cross examination of the claimant, he was not able to produce salary certificate for the year 1990. She has submitted that the amount of Rs.5000.00 awarded by the claims tribunal for pains, shock and suffering is also reasonable amount and it cannot be considered to be on lower side. She has further submitted that the multiplier of 16 applied by the claims tribunal is on higher side which covers all the claims as reasonable amount awarded by the tribunal and, therefore, considering the award as a whole, same does not required to be enhanced. Except these submissions, no other submission was made by the learned advocate Mrs. Bhatt on behalf of respondent no.2. 5. I have considered the submissions made by both the learned advocates. I have also perused the impugned award made by the claims tribunal along with the paper book supplied by the learned Advocate Mr. Shah. I have also considered the evidence of the appellant claimant and the reasoning given by the claims tribunal in respect of the negligence aspect, as discussed FA/2579/2007 4/9 JUDGMENT by the claims tribunal while deciding issue no.1. 6. Considering the facts of the case, accident took place on 16.7.1990 when the claimant was driving vehicle being Swaraj Mazda Matador bearing No. GRU 3550 on the road from Dantali to Ahmedabad at moderate speed and on correct side of the road. It was alleged by the claimant that when the said vehicle reached near village Kudasan, at about 11.30 a.m., one double decker ST Bus bearing No. GTE 6450 came with an excessive speed driven by opponent no.1 rashly and negligently and because of the speed, the driver who lost the control over the steering, head on collusion by which the applicant was grievously injured and his two legs were trapped under the steering and received multiple fracture. It was also alleged that the claimant was removed to civil hospital, Ahmedabad where he was treated as an indoor patient for more than one and half months and as a result the applicant was confined to bed for more than three months and because of the injuries, there is a permanent disablement of 28%. Therefore, based upon the aforesaid facts, aforesaid claim petition was filed by the claimant before the claims tribunal claiming compensation of Rs.2,00,000.00 on different heads. 7. The Claims Tribunal has considered the question of negligence in para 5 of the award. Relevant discussion made by the claims tribunal while FA/2579/2007 5/9 JUDGMENT deciding the question of negligence is reproduced as under: “On perusing the cross examination, it transpires that the ST Corporation has alternatively tried to establish contributory negligence but has failed and this witness has denied that it is because of the rash and negligent driving, he sustained serious injuries. The Ld. Advocate Shri IM Suthar has cited an authority at 1990 ACJ p. 450 in the case of Laxmi and Company V/s. Savitri Devi (Loyalka) and Ors. Of Patna High Court wherein it has been held that the driver of the offending vehicle is not examined who was a competent witness to explain the situation, adverse inference should be drawn. It is held that the cause of accident can be best explained by driver concerned and if he is kept away from the witness box, without sound reason, it must indeed be construed as a telling circumstances against the respondents. So, considering the Panchanama, Complaint and deposition of the applicant at Exh. 42, I hold that the ST Driver of the other offending vehicle is negligent enough for the accident in question and it is because of his rash and negligent driving, the accident took place. The opponents have not adduced any iota of evidence nor any of them step into the witness box, and was driving the vehicle involved in the said accident. Considering all these aspects and documents, I hold that the applicant has duly proved issue no.1. “ 8. From the aforesaid discussion made by the claims tribunal on the issue of negligence, the claims tribunal has definitely come to the conclusion FA/2579/2007 6/9 JUDGMENT that it transpires that the ST Corporation has alternatively tried to establish contributory negligence but has failed and this witness has denied that it is because of the rash and negligent driving, he sustained serious injuries. Thereafter, considering the Panchanama, Complaint and deposition of the applicant at Exh. 42, the Claims Tribunal has held that the ST Driver of the other offending vehicle is negligent enough for the accident in question and it is because of his rash and negligent driving, the accident took place. It was also held by the claims tribunal that the opponents have not adduced any iota of evidence nor any of them has stepped into the witness box and considering all these aspects and documents, issue no. 1 was answered in affirmative by the claims tribunal while rejecting plea of contributory negligence on the part of the claimant. In para 6 of the award, the tribunal held that the claimant is entitled for amount of Rs.59960.00 as compensation from the corporation. However, contrary to the findings recorded while deciding issue no.1, ultimately, in para 7 of the award, the claims tribunal erroneously held that the contributory negligence on the part of the claimant is to the extent of 20% and, accordingly, ultimately tribunal awarded the amount of Rs.47,968.00 to the claimant with proportionate cost and interest at the rate of 9 per cent per annum. FA/2579/2007 7/9 JUDGMENT 9. From the findings given by the claims tribunal while deciding issue no.1, it is clear that the question as to whether the claimant is responsible for contributory negligence or not was examined by the claims tribunal and such findings were given by the claims tribunal after considering the Panchanama, Complaint and deposition of the applicant at Exh. 42 that the ST Driver of the other offending vehicle is negligent enough for the accident in question and it is because of his rash and negligent driving, the accident took place. 10.Therefore, finding given by the claims tribunal in para 7 of the award holding that there is 20 per cent contributory negligence on the part of the claimant without reasoning is required to be set aside by holding that there is 100 per cent negligence on the part of the driver of the ST Corporation in driving the offending vehicle in rash and negligent manner. 11.In respect of the income, the claims tribunal has rightly assessed the income of the claimant at Rs.1500.00 because there was no proof of income produced by the claimant. No proof showing particular income of the claimant at the time of accident was produced and proved by the claimant before the claims tribunal and the certificates as regards income produced by the claimant were of the year 1996 and 2001 which were totally irrelevant as the same were not giving correct picture about the income of the FA/2579/2007 8/9 JUDGMENT claimant at the relevant time in the year 1990. Therefore, the contention raised by the learned Advocate Mr. Shah in respect of income of the claimant cannot be accepted by this court and the same is therefore rejected. 12.Before the claims tribunal, 17% disability for th body as a whole was accepted by the claimant and considering the age of the claimant, multiplier of 16 was adopted by the claims tribunal, therefore, according to my opinion, the claims tribunal was right in adopting multiplier of 16. According to my opinion, award of Rs.5000.00 made by the claims tribunal for pains, shock and suffering cannot be considered to be on lower side. Therefore, according to my opinion, considering the award as a whole, the claims tribunal has awarded just and reasonable compensation. 13.Therefore, in view of the above discussion, this appeal is partly allowed. The impugned award is modified to the effect that there is no contributory negligence on the part of the claimant appellant in the accident in question and the driver of the ST Corporation is 100 per cent negligent for the accident in question. Therefore, the claimant is entitled for compensation of Rs.59960.00 as computed by the claims tribunal in para 6 of the award from the corporation with 9 per cent interest from the date of the application till the realization. Respondent GSRTC is therefore directed to FA/2579/2007 9/9 JUDGMENT deposit the difference of the amount of compensation with interest thereon as directed above within three months from the date of receipt of copy of this order. This appeal is accordingly partly allowed with no order as to costs. (H.K. Rathod,J.) Vyas