FA/6501/1998 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 6501 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= ORIENTAL INSURANCE CO LTD & 1 - Appellant(s) Versus MAHESHBHAI GORDHANBHAI BHAVSAR & 11 - Defendant(s) ========================================================= Appearance : MR KK NAIR for Appellant(s) : 1 - 2. NOTICE SERVED for Defendant(s) : 1 - 2,8 - 12. MR HM PARIKH for Defendant(s) : 3, MR DARSHAN M PARIKH for Defendant(s) : 4, MR AJ PATEL for Defendant(s) : 5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 18/03/2008 FA/6501/1998 2/14 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The present appeal is preferred to challenge the judgment and award rendered by M.A.C.T.(Main), Ahmedabad (Rural) in M.A.C.P. No.510 of 1992 on 14.8.1998. 1.1. The claim arose out of a vehicular accident that occurred on 17.1.1992 at about 8.00 p.m., near Krishna Farm on Ahmedabad-Kathlal Road. The vehicles involved were Jeep Car bearing registration No.GBQ 882 and Tractor No.GJ-7A-7639 to which Trolley No.GJ- 7T-1261 was attached. In the accident, one Dilipsinh Takhatsinh Zala expired and the claim petition was preferred by the parents, the widow and five minor children of deceased Dilipsinh claiming Rs.36 lacs by way of compensation for death of the deceased. 1.2. According to the claimants, the deceased was travelling in the jeep car which belongs to the Kapadvanj Taluka Panchayat which was driven by opponent no.4 – Andarsinh Chandrasinh Zala. According to the claimants, the tractor came from opposite direction which was driven by opponent no.1 – Maheshbhai Gordhanbhai Bhavsar in a rash and negligent manner at a high speed paying no heed to the traffic rules. The tractor came to its wrong side and the trolley attached to the tractor collided with the jeep car. The deceased was severely injured and ultimately succumbed to the injuries. FA/6501/1998 3/14 JUDGMENT 1.3. According to the claimants, the deceased was aged 32 years at the time of the accident. He was the Chairman of the Taluka Panchayat. He had vast agricultural lands which he was cultivating. He owned a tractor which he used to hire out for agriculture. He had purchased auto rickshaw which he had hired out. The deceased was selling water for agricultural purpose and was engaged in cattle trade also. The deceased was running a grocery shop and additionally he used to run a fair price shop also. Through it, he was selling controlled kerosene on commission basis. Thus, according to the claimants, the deceased was engaged in multifarious activities, was active in politics and had a very bright future. They, therefore, claimed compensation of Rs.36 lacs. 1.4. The claim petition was opposed to by the original opponents, the present appellants as well as respondent nos.1,2,3 and 4. The averments made in the petition were denied by all of them. Both the sets of driver and owner tried to throw the burden of negligence on the other side. The respondent no.2 – Adarsinh Chandrasinh Zala – original opponent no.4, in his written statement, contended that he was driving the jeep car at a moderate speed on correct side and it was the negligence of tractor driver which caused the accident. 2. The Tribunal, after considering the evidence on record, found that respondent no.4 has not entered FA/6501/1998 4/14 JUDGMENT the witness box in support of the plea taken by him in the written statement. The said plea runs contrary to the FIR lodged by him immediately after the accident which indicates that the jeep car was driven by the deceased and not Andarsinh. The Tribunal, therefore, came to a conclusion that it was the deceased who was driving the jeep car. 2.1. After considering the evidence, on negligence aspect, the Tribunal found that the deceased himself was negligent to the extent of 65% and attributed 35% negligence to the driver of the tractor and hence this appeal by the owner and insurer of the tractor in question. 2.2. While considering the question of quantum, the Tribunal has found that though the evidence indicates the income of the deceased by running a fair price shop and selling kerosene was Rs.7700/-, the evidence of witness Mohammed Yunus indicates that the deceased was required to bear the expenditure of electricity, employees as well as loss in the stock. The Tribunal also considered the evidence of claimant No.1 to the effect that two employees were employed for running the fair price shop. The Tribunal ultimately assessed the net income of the deceased from the fair price shop and sale of kerosene at Rs.500/-. Considering the other evidence, the Tribunal found that from the grocery shop, the deceased was earning Rs.400/- per month and was getting honorarium of Rs.400/- per month as Chairman FA/6501/1998 5/14 JUDGMENT of Taluka Panchayat. The Tribunal assessed the agricultural income at Rs.1000/- per month and an income of Rs.500/- per month by hiring auto rickshaw. The Tribunal, however, did not accept the case of the claimants that the deceased was engaged in cattle trade, that he was hiring out tractor for agricultural purposes and that he was selling water for agricultural purposes and was earning therefrom. The Tribunal, ultimately, assessed the income at Rs.3070/- per month and considered the prospective income from his activities of earning at Rs.4500/- per month had he not died in the accident. The Tribunal averaged it out and then rounded off the the amount to Rs.3750/- per month. From that, the Tribunal deducted the amount of personal expenditure of Rs.700/- by adopting unit method and assessed the dependency loss at Rs.3050/- per month and ultimately by adopting multiplier of 16, awarded compensation of Rs.5,85,600/- as compensation under the head of dependency loss. In addition, Rs.10,000/- was awarded as compensation for loss of life expectancy, totalling to Rs.5,95,600/- which was reduced by 65% and the amount of compensation came to Rs.2,08,460/-. 2.3. It is against the above verdict that the present appeal is preferred by the owner and insurer of the tractor and trolley in question. 3. We have heard learned advocates Mr.K.K.Nair for the appellants, Mr.H.M.Parikh for respondent no.3, Mr.S.R.Patel on behalf of Mr.A.J.Patel for FA/6501/1998 6/14 JUDGMENT respondent nos.1,2, 5 to 7 and Mr.Darshan Parikh for opponent no.4. 4. Mr.Nair submitted that admittedly, the width of the road was 24 ft., with a kachha road of 3 ft., on each side and the panchanama indicates that the accident occurred while the tractor was on its correct side and that when the accident occurred, the tractor was off the road on its correct side and the rear left wheel of the tractor trolley was just 3 ft., from the left edge of the road. The Tribunal has also considered these aspects. The Tribunal has apportioned the negligence between the tractor driver and driver of the jeep car in ratio of 35:65. According to Mr.Nair, there is absolutely no reason to attribute any negligence on the part of the driver of the tractor. The tractor was being driven on the correct side of the road. The jeep car came on the wrong side and dashed against the tractor and, therefore, the Tribunal has committed an error in assessing the negligence of the driver of the tractor at 35%. 4.1. Mr.Nair submitted that the case of the claimants as supported by original opponent no.4 – respondent no.2 herein is that respondent no.2 was driving the jeep car but factually it was the deceased who was driving the jeep car and this aspect has emerged from the FIR lodged by respondent no.2 soon after the accident. The Tribunal has also accepted this and the Tribunal has come to the FA/6501/1998 7/14 JUDGMENT conclusion that the deceased was driving the jeep car and the award is accordingly sliced down by 65%. According to Mr.Nair negligence was not attributable to the driver of the tractor and therefore, the claim of the claimants should have been dismissed. 4.2. Commenting on quantum aspect of the matter, Mr.Nair submitted that the Tribunal has committed apparent error while computing the dependency loss. The Tribunal has come to a specific conclusion that as per the evidence of Mohammed Yunus as led by the claimants, though his income from the fair price shop and selling of kerosene was Rs.770/- per month, the income of the deceased can be assessed at Rs.500/- per month therefrom because of the expenditure that the deceased would have incurred by way of salary to employees, electricity etc. Despite that while computing the income from his source at the end, the Tribunal has taken the income at Rs.770/- per month. 4.3. Mr.Nair also submitted that the Tribunal has accepted the income of the deceased by way of honorarium from the Chairman of Taluka Panchayat. Mr.Nair submitted that this is not a permanent post and could not have been considered as an income from regular source of income. Last but not the least, Mr.Nair submitted that the Tribunal has committed an error in adopting the multiplier of 16 considering the age of the deceased. He submitted that the appeal, therefore, may be accepted and claim may be dismissed or in the alternative may be reduced. FA/6501/1998 8/14 JUDGMENT 5. Learned advocate Mr.Patel appearing for the original claimants has opposed this appeal vehemently. He, however, in all fairness conceded that a mathematical error has crept in in the judgment. When the Tribunal has assessed the income of the deceased from fair price shop and by selling kerosene at Rs.500/- per month, at the time of calculating the dependency loss, Rs.770/- per month is considered. He further submitted that he cannot assail the assessment made by the Tribunal as he is not in appeal but he submitted that the assessment is very conservative. He submitted that the deceased was aged 32 only. He has risen to the post of Chairman of Taluka Panchayat at a very young age and would have progressed further. The deceased had about 85 vighas of land. This income would have accordingly increased. The Tribunal has not awarded any compensation by not considering the business income through the cattle trade and sale of water or hiring out of the tractor. Therefore, this Court may not interfere with the award. 6. We have taken into consideration rival side submissions. It appears that though the claimants have come with a case that respondent no.2 was driving the tractor, the fact remains that the jeep car was being driven by the deceased. This aspect comes to surface from the FIR lodged by respondent no.2 himself and the Tribunal has also accepted the same. The Tribunal has deducted 65% from the award FA/6501/1998 9/14 JUDGMENT which would show that the Tribunal came to a conclusion that the deceased himself was driving the jeep car. The claimants have not challenged this finding of the Tribunal either by preferring an appeal or even by filing cross objections. 7. The panchanama indicates that the road was 24 ft., wide and had a kachha road of 3 ft., on either side. The total width was, therefore, of about 30 ft. When the panchanama was drawn, the tractor was lying in an oblique position with its front two wheels on the kachha road. The left front wheel at a distance of 4 ft., and the right front wheel at a distance of 1 ft., from the edge of the road. The left rear wheel of the tractor was on the road at a distance of about 3 ft. The jeep car was lying in a clubbed position with the trailer. This would mean that the tractor was being driven on its correct side i.e., on the left side from the centre of the road. The jeep car went on the wrong side and while trying to rectify the error, accident occurred. Unfortunately, the claimants have not led any oral evidence in this aspect but the driver of the tractor has said that he was driving the tractor at a moderate speed on the correct side and the jeep car came on the wrong side and dashed against the trailer. 8. In our view, the version of the driver of the tractor seems to be reliable to be accepted. However, it has to be noted that when the accident FA/6501/1998 10/14 JUDGMENT occurred, the trailer was on the road. The front two wheels of the tractor had gone off the road and right front wheel of the tractor was at a distance of about 1 ft., only from the edge of the road. Differently put, it cannot be said that the driver of the tractor made any attempt to avert the accident by taking the tractor to further left by taking it on the shoulders of the road which was about 3 ft., in width. Had he done so, probably accident could have been averted. At the same time, in absence of any justification, he could not have anticipated the jeep car to suddenly come on wrong side. The deceased had no reason to take the jeep car on wrong side and, therefore, the accident occurred because of greater negligence on the part of the deceased and lack of alertness and anticipation on the part of the driver of the tractor. There are no golden scales to assess the negligence. Under the circumstances, we are of the opinion that no interference is called for in so far as the finding of the Tribunal is concerned on negligence. 9. Now, coming to the quantum aspect, we find that the deceased was aged 32 years about which there is no dispute. He was Chairman of the Taluka Panchayat which would mean that he was active in social work or to some extent politics at this young age. This would mean that he was a progressive type of man. There was evidence to show that he was running fair price shop. He was also running separate grocery shop and was hiring out an auto rickshaw. He FA/6501/1998 11/14 JUDGMENT also owned a tractor. He had agricultural lands admeasuring 85 vighas approximately with irrigation facility and was being looked after by the deceased. All these pieces of evidence indicate that the deceased was a dynamic type of person and the prospects and progress have to be assessed keeping in mind such potential of his. A man at the age of 32 successfully becoming a Chairman of Taluka Panchayat would have remained active in social work. The fair price shop, grocery shop would have in due course expanded. He could have expanded the hiring of rickshaw as well and, therefore, we do not find any error on the part of the Tribunal in assessing the income of the deceased. The Tribunal assessed the income of the deceased as under : Rs. 500/- From fair price shop and sale of kerosene. Rs.400/- From honorarium as Chairman of Taluka Panchayat. Rs.400/- From grocery shop. Rs.1000/- From agriculture Rs.500/- From hiring out auto rickshaw. ----------- Rs.2800/- Total. 9.1. The Tribunal did not accept the case of the claimants of income from cattle trade, hiring out of tractor and sale of water for irrigation. The claimants have not challenged the said verdict and no interference, therefore, can be made. FA/6501/1998 12/14 JUDGMENT 10. We, however, find that though the Tribunal has assessed the income of the deceased @ Rs.500/- from fair price shop and sale of kerosene, while computing the income for the purpose of dependency loss,it has assessed the income at Rs.700/- from fair price shop and Rs.70/- from sale of kerosene. There is a net difference of Rs.270/- per month in assessment of income of the deceased. The Tribunal assessed the income of the deceased at Rs.3070/- per month whereas it should in fact have been Rs.2800/- per month. The Tribunal has then proceeded to assess the prospective income of the deceased at Rs.4500/- per month but then has ultimately averaged it to Rs.3750/- per month. Considering the mistake that has crept in, we are of the view that ends of justice would be met if Rs.300/-is deducted from the prospective income of the deceased assessed at Rs.3750/- by the Tribunal. The prospective income of the deceased is, therefore, assessed at Rs.3450/-per month. The family consists of four majors and five minors including the deceased. Considering the age of the parents of the deceased, the Tribunal has taken one unit for each of them and one unit for each of the minor and that is how the family was divided into 11 units. Out of that, two units were required to be deducted as expenditure by the deceased on himself which would be Rs.627/- which can be rounded off to Rs.625/-. If that amount is deducted, the dependency loss would be Rs.2825/- per month instead of Rs.3050/- per month as assessed by the Tribunal. The FA/6501/1998 13/14 JUDGMENT annual dependency loss can be arrived at by multiplying the said amount of Rs.2825/- x 12 i.e. Rs.33900/- and considering the age of the deceased to be 32 and his widow to be 28, the multiplier of 16, if adopted cannot be said to be unreasonable. We do not propose to interfere with that multiplier either. The compensation, therefore, would be Rs.5,42,400/- under the head of compensation for dependency loss. Additionally, the Tribunal has awarded Rs.10,000/- as compensation for loss of life of expectancy which also does not call for any interference. The total amount, therefore, would be Rs.5,52,400/-. 10.1. Considering the negligence aspect, the deceased is held to be responsible to the extent of 65% for the cause of accident and the amount, therefore, will have to be reduced by 65% which would be Rs.3,59,060/- which would leave behind the amount of Rs.1,93,350/- as net compensation receivable by the claimants. There shall be no change so far as the award on rate of interest is concerned. 11. The appeal, thus, would stand partly allowed. Award accordingly. No order as to costs. ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) srilatha FA/6501/1998 14/14 JUDGMENT