FA/1885/1990 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1885 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 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 ? ====================================== G.S.R.T. CORPORATION Versus KAMUBEN, WD/O. S. SINDHA AND OTHERS ====================================== Appearance : MS MAYA DESAI for MR MD PANDYA for Appellant. MR DF AMIN for Respondent Nos.1 - 4. NOTICE SERVED for Respondent No.5. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 28/01/2008 ORAL JUDGMENT 1. This appeal under Section 173 of the Motor Vehicles Act 1988 is preferred from award dated 20th February 1990 of MACT (Main), Panchmahal in MACP No.590 of 1986. According to the facts on record, about which there is no dispute, the deceased aged 30 years was FA/1885/1990 2/4 JUDGMENT travelling by a Moped on 20th March 1986 when the bus driven by the driver of the appellant dashed with him near a curve on the road near Baska village. The deceased husband of original claimant no.1 was taken to hospital at Baroda where he succumbed to his injuries on the same date. The road at the spot of the accident was admittedly taking curve and its total width was 28 feet out of which tar road was about 20 feet wide. The basic emolument of the deceased on the date of accident was Rs.1,638/- and assessing his monthly emolument at Rs.2,000/-, deducting therefrom Rs.600/- towards personal expenses and taking Rs.16,000/- as the yearly dependency benefit, the Tribunal applied multiplier of 15 and awarded Rs.2,52,000/- as compensation. 2. Relying upon the panchnama Exh.25 of the scene of accident, learned counsel Ms.Maya Desai vehemently argued that the bus was driven by the driver on left side of the road and the moped had dashed with the bus on the left side of the bus which clearly indicated that the deceased had come towards the bus in high speed and on the wrong side of the road. Therefore, negligence was required to be at least partly attributed to the deceased himself and the amount of compensation was required to be reduced to that extent. She further submitted that as against the actual income of Rs.1,638/- the Tribunal had assessed monthly salary of the deceased at Rs.2,000/- without any basis. As against that, learned counsel, Mr.D.F.Amin appearing for the claimants pointed out that panchnama of the scene of the accident did not mention any brake marks on the road and the version of the driver of the bus (Exh.29) was wholly unbelievable insofar as the bus could not have come to a halt after suddenly seeing the deceased emerging from the curve of the road. He further submitted that as the deceased was driving a very small and light vehicle, the impact upon the deceased could not have been fatal if the bus were not being driven at an excessive FA/1885/1990 3/4 JUDGMENT speed. He on that basis submitted that the circumstances indicated that the bus was driven at a very high speed even at the curve of the road where the vehicles coming from the opposite direction could not have been visible. 3. Upon perusal of relevant evidence on record, it was clear that the bus of the appellant was being driven on the left hand side of the road at the time of accident and the vehicle driven by the deceased had dashed with the bus from the opposite direction after taking a turn and at that time it had either come in the middle of the road or swerved on to the wrong side of the road. Therefore, some negligence could certainly be attributed to the deceased insofar as he had not taken care to remain on the left hand side of the road, while driving on the curve of the road. At the same time if the bus were driven at a moderate speed, the impact could not have been fatal for the deceased and in absence of any brake marks on the road and in view of other attendant circumstances it could be presumed that the bus was also driven at high speed. 4. On the aspect of assessment of amount of compensation it was seen that, although the tribunal had considered revision of pay effective from 1-1-1986, the prospect of subsequent revision of pay of the deceased and increase in his future income were not properly considered and monthly income of the deceased was pegged at Rs.2,000/- for all time to come even as the deceased was aged only 30 at the time of death and had the reasonable prospect of earning increments, and higher pay in the pay scales revised from time to time, as he was serving as Supervisor in Malaria Department. FA/1885/1990 4/4 JUDGMENT 5. In the above facts and circumstances, on the one hand the amount of total compensation is required to be decreased on account of negligence attributable to the deceased but such reduction is likely to be more than off-set by the requirement of increasing the amount of compensation on the basis of assessment of future income at higher rate. Even if the amount for the loss of dependency benefits is reduced by 25% to the tune of Rs.75,000/-, the amount required to be increased under the same head on account of likely increase in the wages and future income of the deceased would be more than Rs.1 Lac. Under these circumstances, although this Court finds substance in the argument of the appellant that the deceased was required to be attributed some percentage of negligence, the amount of compensation is not interfered with in the overall facts and circumstances of the case. The appeal is accordingly dismissed with no order as to costs. (D.H.Waghela, J.) /malek