IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 792 of 1982 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? No 2. To be referred to the Reporter or not? No 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- RANJANBEN WD/O RAMESHCHANDRA DEVSHIBHAI SHAH Versus G.S.R.T. CORPORATION -------------------------------------------------------------- Appearance: MR DD VYAS for Petitioners MR MG NAGARKAR for Respondent No. 1 NOTICE UNSERVED for Respondent No. 2 MR RAJNI H MEHTA for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.C.PATEL Date of decision: 24/08/98 ORAL JUDGEMENT (Per : Panchal, J.) This appeal under section 110-D of the Motor Vehicles Act, 1939 is directed against award dated April 19, 1981 rendered by the Motor Accident Claims Tribunal, Nadiad, in Motor Accident Claim Petition no.146/80. 2. The appellants are heirs and legal representatives of deceased Rameshchandra Devshibhai Shah. On October 4, 1979, the deceased was travelling as a passenger in the bus bearing registration no. GRS-8393. The accident took place on National Highway no.8 between Anand and Ahmedabad near village Kanera when the S.T.bus dashed with oil tanker, which was parked on the road. Because of the accident, the deceased sustained serious injuries on his person. He was removed to V.S.Hospital, where he died due to injuries sustained by him. According to the appellants, respondent no.2 who was driving the bus, was rash and negligent, as a result of which, the bus collided with the rear portion of the tanker parked on the road. Under the circumstances, the appellants instituted Motor Accident Claim Petition no.146/80 against the respondents including the tanker driver, owner of the tanker and the Insurance Company with which the said tanker was insured and claimed compensation of Rs. 2 lacs. 3. After framing issues for determination and considering the evidence led by the parties, the Tribunal held that deceased Rameshchandra Devshibhai died due to composite negligence of drivers of S.T.bus and tanker. The Tribunal held that the driver ofS.T.bus was negligent to the extent of 75%; whereas the driver of tanker was negligent to the extent of 25%. On appreciation of evidence led by the claimants regarding income of the deceased, the Tribunal awarded Rs. 54,000/as dependency benefit and Rs. 9,000/- for loss of expectation of life as well as Rs.5000/- for conventional amount. In all the Tribunal awarded Rs.68,000/- as compensation to the appellants by award dated April 19, 1981, giving rise to present appeal by the appellants, in which they are seeking enhancement of compensation. 4. After the First Appeal was admitted, notices to the respondents were issued, but notices issued to some of the respondents had returned unserved. Under the circumstances, the applicants had filed Civil Application no. 5166/83 praying the Court to issue fresh notice to respondents no.2,3 & 4. The Court by an order dated January 18, 1984 had directed to issue fresh notice to respondents no.2 to 4 at the addresses stated in the said Civil Application. Again, by filing Civil Application no. 2606/86 the applicants had prayed to issue fresh notice to respondents no.3 & 4. That prayer was also granted on November 21, 1986. In Civil Application no. 2398/83 also fresh notice upon respondents no.2, 3 & 4 was ordered to be issued at the addresses stated in the said application. Lastly, in Civil Application no. 4725/85, a prayer was made to issue fresh notice to respondents no.3 & 4 at the address mentioned in the said application and that prayer was granted on December 11, 1985. The record indicates that all steps have been taken to ensure the service of notices on respondents no.2 to 4 at all known addresses and they are not received back unserved. Under the circumstances, notice must be deemed to have been served. 5. We have heard Mr. D.D.Vyas, learned Counsel for the appellants as well as Mr. Mukund Nagarker, learned Counsel appearing for respondent no.1 and Mr. R.H.Mehta, learned Counsel appearing for respondent no.5- Insurance Company. 6. We notice that in the deposition of appellant no.1 it was claimed that the yearly income of the deceased was Rs.15,000/-. However, no documentaty evidence was produced by the appellants in support of their say that the monthly income of the deceased was Rs.1200/-. On the facts and in the circumstances of the case, we are of the view that the income of the deceased ought to have been assessed at Rs.750/- per month because bonus, which used to be received by the deceased and other heads of income, referred to by the appellant no.1 in her deposition are not taken into consideration by the Tribunal while assessing income. Out of Rs.750/-, Rs.250/- will have to be deducted as amount which would have been spent by the deceased for himself. Thus, the dependency benefit of Rs.500/- per month i.e. Rs.6000/per year would be available to the appellants. The Tribunal has adopted multiplier of 15. Having regard to the facts of the case, we do not consider that any error is committed in applying said multiplier to the facts of the case. Applying the multiplier of 15 to the facts of the present case, we find that the appellants would be entitled to a sum of Rs.90,000/-. The Tribunal has awarded a sum of Rs. 54,000/- to the appellants under the head of dependency benefit. Deducting the said amount from Rs.90,000/-, we hold that the appellants are entitled to a further sum of Rs.36,000/- by way of compensation under the head of dependency benefit, with interest and costs thereon. 7. The respondent no.1 has filed Cross-Objections and challenged the finding recorded by the Tribunal to the effect that the bus driver was negligent to the extent of 75%. We notice that the respondents no.2 to 4 have been ordered to be deleted from the Cross Objections by an order dated July 27, 1984. We are of the opinion that in absence of the owner of the tanker, such an issue cannot be gone into by the Court. Under the circumstances, the Cross Objections cannot be entertained and are liable to be dismissed. Even otherwise, we find that the bus had collided with stationary tanker from behind. While fixing negligence of the driver of the S.T.Bus to the extent of 75%, the Tribunal has taken into consideration all the relevant factors and documents, such as panchnama of place of the incident, F.I.R. etc. Having regard to the nature of evidence led by the parties, it cannot be said that the finding recorded by the Tribunal that the bus driver was negligent to the extent of 75% is erroneous in any manner. Thus, on merits also, the Cross Objections are liable to be dismissed. For the foregoing reasons, the appeal partly succeeds. The appellants do recover a further sum of Rs. 36,000/- (Rupees thirty six thousand only) as compensation from all the respondents with proportionate costs and interest at the rate of 12% per annum from the date of the application till realisation. The apportionment amongst the appellants inter-se shall be made in the manner indicated by the Tribunal in the impugned award. The appeal accordingly, stands partly allowed, with no order as to costs. The Cross-Objections are dismissed, with no order as to costs. ======= (patel)