FA/2755/2008 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2755 of 2008 To FIRST APPEAL No. 2761 of 2008 With CIVIL APPLICATION No. 7167 of 2008 To CIVIL APPLICATION No. 7173 of 2008 in FIRST APPEAL Nos. 2755 to 2761 of 2008 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 ? ========================================= DELHI TRANSPORT CORPORATION Versus SHEELA ROHIT THAKKAR & ORS ========================================= In First Appeal No. 2755 of 2008 MR VIBHUTI NANAVATI for Appellant MR HARSHIT S TOLIA for Respondents No. 1 - 2 FA/2755/2008 2/21 JUDGMENT MR PARTH S TOLIA for Respondents No. 1 - 2 None for Respondent No. 3 RULE SERVED BY DS for Respondent No. 4 UNSERVED-EXPIRED - Respondent No. 5 MR GC MAZMUDAR for Respondent No. 6 MR HG MAZMUDAR for Respondent No. 6 In First Appeal No. 2756 of 2008 MR VIBHUTI NANAVATI for Appellant MR HARSHIT S TOLIA for Respondents No. 1 - 2 MR PARTH S TOLIA for Respondents No. 1 - 2 Respondent No. 3 Un-served - Expired Respondent No. 4 served In First Appeal No. 2757 of 2008 MR VIBHUTI NANAVATI for Appellant MR LALJI R MOKARIA for Respondents No. 1/1 MR ABHIRAJ R TIVEDI for Respondents No.1/2 - 1/4 Respondent No. 2 Served by DS Respondent No. 3 – Unserved - Expired Respondent No. 4 Served In First Appeal No. 2758 of 2008 MR VIBHUTI NANAVATI for Appellant MR LALJI R MOKARIA for Respondents No. 1/1 Respondents No.1/2 - 1/4 served Respondent No. 2 Served by DS Respondent No. 3 Expired In First Appeal No. 2759 of 2008 MR VIBHUTI NANAVATI for Appellant Respondents No. 1 & 2 Served MR TUSHAR N VYAS for Respondents No.3 Respondent No. 4 Served In First Appeal No. 2760 of 2008 MR VIBHUTI NANAVATI for Appellant MR HARSHIT S TOLIA for Respondents No. 1 - 2 MR PARTH S TOLIA for Respondents No. 1 – 2 Respondents No. 3 Served Respondents No.4 Un-served Expired Respondent No. 5 Served FA/2755/2008 3/21 JUDGMENT In First Appeal No. 2761 of 2008 MR VIBHUTI NANAVATI for Appellant MR HARSHIT S TOLIA for Respondents No. 1 MR PARTH S TOLIA for Respondents No. 1 Respondents No. 2 Served Respondents No.3 Un-served -Expired Respondent No. 4 Served ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 29/09/2008 ORAL COMMON JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 All these seven First Appeals are preferred by the Delhi Transport Corporation, a Government of NCT of Delhi, against the judgment and award delivered by Motor Accident Claims Tribunal (Auxilliary), Baroda, on 13th of February, 2007, in Motor Accident Claim Petitions No. 1437 of 1996; 1438 of 1996; 1439 of 1996; 1440 of 1996; 1441 of 1996; 347 of 2003 and Motor Accident Claim Petition No. 348 of 2003. All the above seven petitions had arisen out of a common accident took place on 30th of April, 1993, at abut 5.15 p.m. near Khurja Village, on Delhi – Khanpur State Highway No.22, within the jurisdiction of Kotwali Police Station of Bulandshaher. Some petitions were filed at Bulandshaher, U.P., some petitions also came to be filed for the same accident before the Motor Accident Claims Tribunal at Baroda and, FA/2755/2008 4/21 JUDGMENT therefore, vide Order passed by the Apex Court in Transfer Petition (Civil) No. 530 of 1995 and 575-578 of 1995 on 8th of January, 1996, all claim petitions came to be transferred to the Motor Accident Claims Tribunal, Baroda. The number of the DTC Bus involved in the accident was DLIP-9912, which was previously mentioned inadvertently as DLIP- 3912. 2 As per the brief facts of the case, on the day of the accident, the applicants and their family members were travelling in one Ambassador car, bearing No. GJ-6-T-8347, was driven by deceased Vipulbhai Champaklal Panchal and when they reached near the spot of accident, the said DTC Bus came from the opposite direction in rash and negligent manner, dashed with the Ambassador car. On account of which, three applicants of these seven petitions received injuries and other four persons including the driver of Ambassador car sustained fatal injuries and succumbed to death and, hence, all these petitions filed by the respective petitioner for compensation. 3 Petition No. 1437 of 1996 came to be filed for the death of Rohitkumar Premanand Thakkar, by legal heirs of the deceased, for the compensation of Rs. 15 lacs; Petition No.1438 of 1996 came to be filed by Dhavalkumar Rohit Thakkar, aged about seven years at the time of FA/2755/2008 5/21 JUDGMENT the accident and thereafter attained majority, for the compensation of the injuries received by him in the accident and he claimed Rs. 3 lacs; Petition No. 1439 of 1996 came to be filed by Ashok Premanand Thakkar, for the compensation of the injuries received by him in the accident and he claimed Rs. 2 lacs, who expired during pendency of the proceedings and the petition was continued thereafter by legal heirs of deceased Ashok Premanand Thakkar; Petition No. 1440 of 1996 came to be filed for the death of Ashaben Premanand Thakkar, aged about 60 years, mother of other claimant Ashok Premanand Thakkar, for the compensation of Rs. 1 lac; Petition No. 1441 of 1996 came to be filed by the legal heirs of deceased Vipul Champaklal Panchal, who was driving the Ambassador car at the relevant time and the said car was involved in the accident and the petition was filed for the compensation of Rs. 8 lacs; Petition No. 347 of 2003 came to be filed for the death of Krupa, aged three years, by applicant No.1 mother of the deceased and applicant No.2 brother of the deceased, for the compensation of Rs. 2,50,000/- and Petition No. 348 of 2003 is filed for the compensation of 10 lacs, for the injuries received by applicant Sheelaben Rohit Thakkar in the said accident. 4. In all the petitions, it was alleged that the Driver of DTC Bus was negligent and on account of which the accident occurred FA/2755/2008 6/21 JUDGMENT causing death of some of the occupants of the Ambassador car and causing injuries to some of the occupants of the said car. Delhi Transport Corporation in all the petitions took the defence that the accident was the result of negligent driving by the driver of the Ambassador car and that minor girl Krupa, for which Motor Accident Claim Petition No. 347 of 2003 has been filed, was sitting near the driver of the said car and was playing with the steering, and as a result, the driver of the Ambassador car lost his control and turned to wrong side of the road and dashed with the DTC Bus. It was alleged that the driver of the DTC bus was not at all negligent in causing the accident. However, in all the petitions, the Delhi Transport Corporation - present appellant also disputed the quantum and measure of the damages awarded by the Tribunal. 5. After hearing both the sides, the Tribunal awarded an amount of Rs. 14,45,000/- to the claimants of Motor Accident Claim Petition No. 1437 of 1996; Rs. 3,16,000/- to the claimants of Motor Accident Claim Petition No. 1438 of 1996; Rs. 2,30,000/- to the claimants of Motor Accident Claim Petition No. 1439 of 1996; Rs. 85,000/- to the claimants of Motor Accident Claim Petition No. 1440 of 1996; Rs. 6,85,000/- to the claimants of Motor Accident Claim Petition No. 1441 of 1996; Rs. 1,75,000/- to the claimants of Motor Accident FA/2755/2008 7/21 JUDGMENT Claim Petition No. 347 of 2003 and Rs. 1,58,000/- to the claimants of Motor Accident Claim Petition No. 348 of 2003. This amount, in each of the petitions was directed to be paid together with proportionate costs and interest at the rate of 9% per annum from the date of claim petition till December 2000 and thereafter at the rate of 8% per annum till realization. 6. Being aggrieved by the above judgment and award, the original opponent No.1 in all the petitions – Delhi Transport Corporation has preferred all these seven Appeals in the said seven petitions. Learned Advocate Mr. Vibhuti Nanavati in all the First Appeals on behalf of the appellants was heard in detail. While learned Advocate Mr. Harshit S. Tolia, learned Advocate Mr. G.C. Mazmudar, learned Advocate Mr. Abhiraj R Trivedi and learned Advocate Mr. Tushar N. Vyas were heard on behalf of the claimants – respondents in each of the seven petitions respectively. 7. Mainly in these First Appeals, the issue of negligence and quantum of damages in each of the petitions is disputed as the ground is taken in each of the appeals. 8. We have called for the Record and Proceedings from the FA/2755/2008 8/21 JUDGMENT Tribunal vide Order passed on 22nd of September, 2008 and we have scanned the evidence recorded during the trial and the documents produced. We have gone through the record and proceedings entirely. There are three witnesses examined by the petitioners in all claim petitions to establish the issue of negligence and those witnesses are Sheelaben Rohit Thakkar at Exhibit 79 and Exhibit 146, applicant of petition Nos. 1437 of 1996, 347 of 2003 and 348 of 2003; Anilkumar Premanand Thakkar has been examined at Exhibit-40, applicant of Claim Petition Nos. 1439 of 1996 and 1440 of 1996 and Champaben Champaklal Panchal at Exhibit-50, applicant of Motor Accident Claim Petition No. 1441 of 1996. We have also perused the documents produced on record i.e. First Information Report at Exhibit 41, copy of charge sheet filed against the driver of DTC Bus at Exhibit-42; post mortem note of the deceased Rohitkumar at Exhibit-95; postmortem note of the deceased Ashaben Thakkar at Exhibit -43; MLC Report of the deceased Vipul Panchal at Exhibit 151 and P.M. Note of the minor deceased Krupa at Exhibit 63. No evidence, at all, could be led by the original opponent i.e. present appellant. From the evidence of eye witnesses and documentary evidence, learned Tribunal came to the conclusion that the Driver of DTC Bus was in full speed and dashed with the Ambassador car. The impact was so high that the whole car was crushed and on account of that, the occupants of the car received injuries FA/2755/2008 9/21 JUDGMENT and some of them died due to injuries. Though the learned Tribunal observed that the DTC Bus Driver died on the spot, but this appears to be a factual error, who was joined as opponent No.2 in all the petitions and those charge sheets are produced at Exhibits 41 and 42. However, the DTC Driver did not step into the witness box to clear the circumstance. This documentary evidence therefore clearly indicates that there was head on collision between the two vehicles and having regard to the factum of scene of offence and the impact caused to the Ambassador car, there could be no hesitation in coming to the conclusion that it was opponent No.2 the Driver of the DTC bus was negligent in causing the accident. For the above reasons, we do not incline to interfere in this conclusion of the learned Tribunal. 9. So far as the quantum of compensation is concerned, in Motor Accident Claim Petition No. 1437 of 1996, Sheelaben Rohit Thakkar was examined and according to the Postmortem Note, the deceased suffered head injuries. The employer of the deceased, examined at Exhibits 132 and 141, stated that at the time of the incident, the deceased was drawing salary of Rs. 4,414/- p.m. and would have earned Rs. 17,755/- p.m. had he lived. From the evidence recorded, after taking into consideration the future prospects, the Tribunal assessed the income of the deceased at Rs. 11,200/- p.m. FA/2755/2008 10/21 JUDGMENT After deducting 1/3rd for the pocket expenses, dependency benefits of the claimants was assessed at Rs. 70,000/- per annum. The deceased was of 37 years of age at the time of accident and, therefore, the Tribunal allowed 15 years multiplier and awarded Rs.13,50,000/- towards the future economic loss. The Tribunal also awarded Rs. 40,000/- towards pain, shock and suffering; Rs. 20,000/- for consortium, loss to estate, etc.; Rs. 5,000/- towards funeral expenses and Rs. 30,000/- towards medical expenses, transportation etc., totalling to Rs. 14,45,000/-. However, assessment of the damages by the Tribunal rests on the documentary evidence produced on record and the opponent could not controvert this weighty evidence nor the witnesses examined were cross-examined by the present appellant. Evidence remained unchallenged, and in these circumstances, we are unable to interfere in the findings of the Tribunal in coming to the conclusion that the claimants of Motor Accident Claim Petition No.1437 of 1996 were entitled to the compensation of Rs. 14,45,000/-. 10. In Motor Accident Claim Petition No. 1438 of 1996, which is filed for injuries caused to minor Dhavalkumar, who thereafter attained the majority. He had received injuries on nose, eyes, etc. Operation was necessary and was performed. Necessary receipts and documents were produced on record vide Exhibits- 87, 88, 90 and 91. The mother of FA/2755/2008 11/21 JUDGMENT the injured - applicant Sheelaben Rohitkumar Thakkar has been examined at Exhibits 79 and 146. The injured was required to be treated by Eye Surgeon at Bombay. Necessary documents were produced on record. The certificate of Eye Surgeon who had performed traumatic surgery on the eye of the injured is produced at Exhibit-118. So, according to the Tribunal, the injured suffered permanent partial disablement to the extent of 25% of visual system which in turn was 24% as whole body. The disability certificate is produced at Exhibit-124 and Dr. Uday is examined at Exhibit – 123. Educational career of the injured was brought on record and after considering all the documents on record, the Tribunal considered the income of the injured at Rs. 5,000/- p.m. After considering 24% permanent partial disablement and applying 15 multipliers, the Tribunal awarded Rs. 2,16,000/- towards future loss of income. The Tribunal also awarded Rs. 75,000/- towards pain, shock and suffering and Rs. 25,000/- towards medical expenses, treatment, etc totalling to Rs. 3,16,000/- Again it is also found that none of the witnesses examined by the petitioner was cross- examined by the appellant – being opponent No.1. The whole evidence was unchallenged and the disablement as well as the treatment of eye has been established by the petitioner. We do not find any error on the part of the Tribunal so as to interfere in the conclusion of the Tribunal in this respect. FA/2755/2008 12/21 JUDGMENT 11. Motor Accident Claim Petition No. 1439 of 1996 is preferred by Ashok Premanand Thakkar for the injuries which he received in the accident for the compensation of Rs. 2 lacs with running interest at the rate of 18%. Applicant died on 7th of July, 1995 and, therefore, the present claimants were substituted as legal representatives of the deceased claimant. It was the case that claimant was serving in the medical store and was earning Rs. 700/- per month for which a certificate is produced at Exhibit-46. After taking into consideration the prospective income at Rs. 1,500/- the Tribunal awarded Rs. 3,000/- towards actual loss and Rs. 20,000/- towards medical expenses and treatment to the deceased applicant. On record, it is found that the deceased applicant was treated in the private hospital at New Delhi and the said fact was admitted by the learned Advocate for the Opponent No.1 in his written submission at Exhibit–169. Though there was no evidence of any permanent partial disability and, therefore, keeping in view the principle of law that legal heirs of original injured applicant in a vehicular accident are entitled to compensation in the form of loss of estate and for the expenses which they might have incurred towards medical expenses and loss of actual income, in our view, the amount awarded to the claimants of this petition to the tune of Rs. 23,000/- is proper and reasonable and no FA/2755/2008 13/21 JUDGMENT interference is called for in this First Appeal No. 2757 of 2008. 12. Motor Accident Claim Petition No. 1440 of 1996 is preferred by the deceased claimant Ashok Premanand Thakkar for the compensation of death of his mother Ashaben Premanand Thakkar, aged about 60 years, in the very vehicular accident. In this petition also, since original claimant Ashok Premanand Thakkar died during proceedings, legal heirs i.e. present claimants were substituted as legal representatives of the deceased to prove the case, claimant No. 1/1 Anilkumar Premanand Thakkar, son of Ashaben, has been examined at Exhibit–40. Though attempt was made by the Delhi Transport Corporation – appellant that the death of Ashaben did not occur on account of the accidental injury and that she received treatment at Safdargunj Hospital, but postmortem note produced at Exhibit–43 reveals that deceased Ashaben received injuries on various parts of her body and died due to those injuries. Death certificate is produced at Exhibit–44 and it could not be said that the death of Ashaben was not caused on account of injuries which she received in the very vehicular accident. Though she died on 03rd of May,1993 after three days of the accident, the learned Tribunal awarded Rs. 10,000/- for pain, shock and suffering as she was treated and was alive for three days after the injury. The learned Tribunal fixed the income of the deceased Ashaben at Rs. 50,000/- per annum, relying upon a decision of the Apex Court in the FA/2755/2008 14/21 JUDGMENT matter of LATA WADHWA vs.STATE OF BIHAR, as reported in AIR 2001 SC 3218. After deducing 1/3rd amount for personal expenses, the Tribunal applied five multipliers and awarded Rs. 50,000/- towards dependency benefits. The Tribunal also awarded Rs. 10,000/- for the loss of love and affection, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards medical expenses as it was an admitted fact that she was in hospital for about three days. In all, the Tribunal awarded Rs. 85,000/- to the claimants of this petition. We have gone through the evidence oral as well as documentary. We do not find any error has been committed by the Tribunal. It is pertinent to note that the witness examined at Exhibit-40 has not been cross-examined by the present appellant and has been cross-examined only by opponent No.4 i.e. the Oriental Insurance Co. Limited of the Ambassador car involved in the accident. We do not find any reason to interfere in the conclusion arrived at by the Tribunal in this First Appeal No.2758 of 2008. 13. Motor Accident Claim Petition No. 1441 of 1996 is filed by the legal heirs of deceased Vipulkumar Champaklal Panchal, for the compensation of death of Vipulkumar. It appears that the claimants No. 1 and 2 are children of deceased while claimant No.3 appears to be mother of the deceased. There is no dispute that the deceased died in the accident. MLC report of Khera Hospital is produced at Exhibit-151, FA/2755/2008 15/21 JUDGMENT establishing the fact that Vipulkumar sustained multiple fractures on various parts of his body and succumbed to injuries. He died after five days of the accident. Evidence further discloses that the deceased Vipulkumar was aged about 28 years and was running an auto garage in the name and style of `Vipul Auto Centre'. Registration certificate in this regard is produced at Exhibit-56. Driving licence of the deceased is produced at Exhibit-149. He was driving the said Ambassador car which met with the accident. Witness Harish Ravjibhai Padhiyar, examined at Exhibit-55, stated that he was earning Rs. 250 to Rs. 300 per day in auto garage as the witness was working with the deceased. This witness has been examined by opponent No.3 only, that appears to be the Insurance Company of the Ambassador car and he has not been cross-examined by the present appellant. In addition to this, claimant No.3 Champaben Champaklal, mother of the deceased, is also examined at Exhibit-50. She stated that wife of the deceased Nainaben married to someone else and was not residing with the deceased. While claimants No. 1 and 2, who are the minor children of the deceased. This witness has not been cross examined by any opponents and this evidence was unchallenged. The learned Tribunal therefore from this evidence considered the monthly income of the deceased after taking into consideration the future prospects at Rs. 5,250/- and after deducting 1/3rd towards pocket expenses, dependency benefit was FA/2755/2008 16/21 JUDGMENT considered at Rs. 3,500/- per month. The Tribunal applied 15 multipliers and allowed the compensation at Rs. 6,30,000/- towards dependency loss to the claimants. In this petition, the Tribunal also awarded Rs. 15,000/- towards pain, shock and suffering; Rs. 15,000/- towards loss of love and affection etc; Rs. 5,000/- for funeral expenses and Rs. 20,000/- towards medical expenses and transportation charges,etc, totalling to Rs. 6,85,000/-. The MLC report produced at Exhibit-151 clearly denotes that the deceased must have suffered pains and though no bills, receipts or other documents could be produced on record for medical expenses, but since all the five days, he was taking treatment, the learned Tribunal rightly awarded Rs.20,000/-on this head. The claimants could establish properly the facts of the pleadings they made. The evidence produced by the claimants could not at all be challenged by any of the opponents, the assessment of damages by the Tribunal from the evidence as afore stated appears to be reasonable and, therefore, we do not interfere in the conclusion arrived at by the learned Tribunal in this petition in awarding, in all, the compensation of Rs.6,85,000/-. 14 Motor Accident Claim Petition No. 347 of 2003 is filed by Sheelaben Rohitkumar Thakkar, for the compensation of Rs. 3 lacs for the death of her daughter Krupa, aged 3 years, in the accident. To prove FA/2755/2008 17/21 JUDGMENT the case, claimant Sheelaben Rohitkumar Thakkar has been examined at Exhibit 75 and at Exhibit 146. She has been cross examined by learned Advocate for the Oriental Insurance Co. Ltd i.e. insurance company of Ambassador car involved in the accident. It appears that a dispute had arose about the limitation as this petition came to be filed after 10 years of the accident. The learned Tribunal heard in this respect both the sides and rightly came to the conclusion that there were other petitions pending in respect of very accident, First Information Report produced on record at Exhibit–41, undoubtedly discloses that minor girl was severely injured and was critical and then, on the ground of delay, the petition should not be defeated. Though postmortem note of the deceased Krupa could not be exhibited, the same was produced on record at Mark 63/8, but oral evidence has not been controverted by the present appellant about death of Krupa in the said accident. The learned Tribunal, therefore, rightly assessed income of minor at Rs. 15,000/- per annum and after deducting of 1/3rd and applying 15 multipliers, awarded Rs. 1,50,000/- towards dependency benefits to the claimant. The learned Tribunal also awarded Rs. 20,000/- towards loss of love and affection and Rs. 5,000/- towards funeral expenses, totalling to Rs. 1,75,000/-. When we perused the record and heard learned Advocate FA/2755/2008 18/21 JUDGMENT for the Appellant, it becomes clear that none of the evidence produced on record has been challenged by the learned Advocate for the appellant except filing of written arguments and written statements. The factum of the accident and the death of Krupa is amply proved by oral as well as documentary evidence like First Information Report. So far as the assessment of damage is concerned, nothing could be shown that the same is not reasonable. Therefore, we do not incline