FA/5255/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5255 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= NEW INDIA INSURANCE CO. - Appellant(s) Versus DAXABEN BHUPENDRABHAI JANI & 8 - Defendant(s) ========================================================= Appearance : MR GC MAZMUDAR for Appellant. MR PARESH M DARJI for Defendant(s) : 1 - 5. None for Defendant(s) : 6 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/02/2008 ORAL JUDGMENT FA/5255/2007 2/9 JUDGMENT ORAL ORDER (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Present appeal under Section 173 of the Motor Vehicles Act, is by the appellant herein-original opponent No.3 New India Insurance Company - insurer of Truck No.GJ-1UU-5001 challenging the judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Fast Track Court No.13, Vadodara dated 27.2.2007 passed in Motor Accident Claim Petition No.1700 of 2000 in so far as awarding the compensation to the respondents No.1 to 5 herein – original claimants a sum of Rs.13,69,359/- and directing the appellant to pay 90% of the said amount i.e. Rs.12,32,423/- together with interest at the rate of 7% p.a. from the date of the application till realisation. 2. At the outset it is required to be noted that the claim in the present appeal is restricted to Rs.7,50,000/-. Deceased Bhupendrabhai Jani was the driver of S.T.Bus GJ-18-V-6274 and in a vehicular accident between the said S.T.Bus with Truck No. GJ- 1UU-5001, the said driver Bhupendrabhai Jani succumbed to serious injuries and died leaving behind him respondents No.1 to 6 herein – original applicants No.1 to 6 his heirs and legal FA/5255/2007 3/9 JUDGMENT representatives. The respondents No.1 to 6 herein-original claimants preferred MACP No.1700 of 2000 under Section 166 of the Motor Vehicles Act, for getting compensation of Rs.20.00 lacs for the death of the deceased Bhupendrabhai Jani. An FIR registered at Thane Police Station being C.R.No.I-135 of 2000 came to be exhibited at Exh.49. Panchnama of place of accident came to be produced at Exh.50. The original respondent more particularly appellant herein raised the dispute with respect to negligence in the written statement, and after considering the evidence on record documentary as well as order, the Tribunal held the driver of S.T.Bus i.e. Bhupendrabhai Jani negligent for accident to the extent of 10% and held the driver of Truck No.GJ-1UU-5001 negligent for accident to the extent of 90%. 2.1 Considering the age of the deceased at the time of accident at 38 years and the basic salary of the deceased at the relevant time Rs.2,650/-, and considering the fact that at the relevant time the deceased was getting total pay of Rs.5,160/-, and considering the fact that the determined age is considered as 58 years and future rise in income etc., the Tribunal held that the loss of Rs.5,625/- to the family which would be after deducting 1/4th towards the FA/5255/2007 4/9 JUDGMENT expenditure to the deceased and multiply the same by 12, and further adopting the multiplier of 15 years, held that the claimants would be entitled to Rs.10,12,500/- towards future loss of income. The Tribunal also awarded Rs.1,97,844/- towards loss of provident fund and Rs.1,09,015/- towards loss of gratuity. The Tribunal further awarded Rs.20,000/- towards loss of consortium and love and affection, Rs.20,000/- towards loss to estate and expectation to life and Rs.10,000/- towards funeral expenses etc. Thus, in all, awarding Rs.13,69,359/- and deducting 10% towards negligence of the deceased, passed an award directing the opponents to pay an amount of Rs.12,32,423/- together with interest at the rate of 7% p.a. from the date of the application till realisation. 2.2 Being aggrieved and dissatisfied with the judgment and award passed by the Tribunal awarding Rs.12,32,423/- by way of compensation and holding the driver of the ST negligent to the extent of 10% only, the appellant-Insurer of Truck No. GJ-1UU- 5001 has preferred the present First Appeal under Section 173 of the Motor Vehicles Act. 3. Mr.G.C.Majmudar, learned advocate appearing on behalf of FA/5255/2007 5/9 JUDGMENT the appellant-Insurance Company has assailed the judgment and order passed by the Tribunal, submitted that the Tribunal has materially erred in awarding provident fund and gratuity. It is further submitted that as there was a head on collision, the Tribunal ought to have held the driver of both the vehicles negligence to the extent of 50% - 50% and has materially erred in holding the driver of the S.T. negligent to the extent of 10% only. It is submitted that even the income of the deceased has been considered by the Tribunal on the higher side. It is submitted that the Tribunal ought to have considered the net income for the assessment of the income and for awarding the compensation under the head future economic loss. It is further submitted that the Tribunal has materially erred in deducting 1/4th on the head of personal expenses and in the facts and circumstances of the case the Tribunal ought to have deducted 1/3rd on the head of personal expenses. Therefore, it is requested to allow the present appeal. 4. Appeal is opposed by Mr.Paresh Darji, learned advocate appearing on behalf of the original claimants. It is submitted that in the facts and circumstances of the case and considering the manner in which the accident had taken place, the Tribunal has FA/5255/2007 6/9 JUDGMENT rightly held the driver of the Truck negligent to the extent of 90% for the accident which is not required to be interfered with. He has also further submitted that considering the total members in the family widow, three minor children and father, the Tribunal has rightly deducted 1/4th on the head of personal expenses of the deceased. Mr.Darji, learned advocate has fairly conceded that the Tribunal has committed error in awarding Rs.1,97,844/- and Rs.1,09,015/- towards loss of provident fund and gratuity and has submitted that to that extent if the appeal is allowed he has no objection and he has requested to modify the judgment and award passed by the Tribunal to that extent. 5. Heard the learned advocates appearing on behalf of respective parties. The learned advocates appearing on behalf of the respective parties have drawn our attention to the relevant evidences documentary as well as oral produced and we have considered the same in detail. We have also considered the judgment and award passed by the trial court in detail, and considering the manner in which the accident has taken place and considering the FIR and the panchnama of the place of the accident and considering the fact that ST Bus was found to be on the left FA/5255/2007 7/9 JUDGMENT hand side of the kachcha road and the driver of ST Bus expired, it cannot be said that the Tribunal has committed any error in holding the driver of the Truck negligent to the extent of 90% and driver of ST negligent to the extent of 10% for the accident in question. It is also required to be noted that the Insurance Company of the Truck has not examined the driver of the Truck and he will be the best person. Under the circumstances, when the driver of the Truck who can be even said to be eye-witness has not been examined, even an adverse inference can also be drawn. Looking to the overall facts and circumstances of the case, it cannot be said that the Tribunal has committed any error in holding the driver of the Truck negligent to the extent of 90%. Hence, there is no substance in the submission of the learned advocate appearing on behalf of the appellant with respect to negligence. 6. Now so far as the quantum of the amount of compensation is concerned, it is the contention on behalf of the appellant that the Tribunal has materially erred in deducting 1/4th on the head of personal expenses of the deceased and instead the Tribunal ought to have deducted 1/3rd on the head of personal expenses. It is required to be noted that in the family there were 7 members in all. FA/5255/2007 8/9 JUDGMENT Family was consisting of the deceased, his parents, wife and three minors. Considering the above and the units in the family, the Tribunal has rightly deducted 1/4th on the head of personal expenses. No illegality has been committed by the Tribunal. 7. Learned advocate appearing on behalf of the appellant- Insurance Company is justified in submitting that the Tribunal has materially erred in awarding Rs.1,97,844/- and Rs.1,09,015/- towards loss of provident fund and gratuity. Even the learned advocate appearing on behalf of the respondents No.1 to 6 herein – original claimants has also fairly conceded that the aforesaid amount could not have been awarded to the claimants. Under the circumstances, the present appeal to that extent is to be allowed and the judgment and order passed by the Tribunal is required to be modified to the aforesaid extent by holding that the Tribunal has erred in awarding Rs.1,97,844/- and Rs.1,09,015/- towards loss of provident fund and gratuity. 8. For the reasons stated above, the appeal succeeds in part. The judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Fast Track Court No.13, Vadodara dated FA/5255/2007 9/9 JUDGMENT 27.2.2007 passed in MACP No.1700 of 2000 is modified to the extent that the respondents – original claimants would be entitled to Rs.9,25,564/- towards the compensation for the death of Bhupendrabhai Jani in stead of Rs.12,32,423/- with interest at the rate of 7.5% p.a. from the date of the application till realisation. Rest of the directions with respect to disbursement and investment is confirmed. 9. Appeal is allowed to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs. ( J.R. VORA, J. ) ( M.R. SHAH, J. ) syed/