1 This appeal under Section 173 of the Motor Vehicles Act, 1988, filed by the appellant, Gujarat State Road Transport Corporation, arises out of the judgment and award dated 10th March 2003 passed by the Motor Accident Claims Tribunal (Main), Kachchh at Bhuj, in Motor Accident Claim Petition No.872 of 1997, whereby, the Tribunal awarded compensation of Rs.6,42,000/ in favour of the claimants, namely, the widow and five children of the deceased, with running interest at the rate of 9% per annum from the date of filing the claim petition till realization of the awarded amount from both opponents jointly and severally.
2 On 4th September 1997, at about 3.40 p.m. on Mandvimaska Road, the unfortunate accident took place. The deceased, Jatashankar Damji Moto, died on the spot when the S.T. Bus bearing registration No.GJ1Z4097, owned, managed and driven by the driver employed by the appellantGSRTC, dashed with Moped bearing registration No.GUX 917 driven by the deceased with his son, Hitesh Jatashanker Mota, as pillion rider.
3 After considering the relevant documents and hearing the parties, the Tribunal framed issues: “whether the claimants prove that the deceased died due to rash and negligent driving by the driver of the S.T. Bus in the course of his employment with the S.T. Corporation and whether the claimants are entitled to compensation from the opponents or any of them and if yes what amount and from whom.”
4 The S.T. Corporation filed written statement at Exh.12 raising contentions with regard to age and income of the deceased and contributory negligence on the part of the driver of the moped, namely, the deceased. That, there is no documentary evidence about the income of the deceased. That, the deceasedmoped driver was also negligent. However, the Tribunal found that the age of the deceased at the time of accident was 40 and so was determined on the basis of the first child born some time in the year 1981 and, in view of the birth certificate of the first child produced on record, the Tribunal, safely, concluded that, if the date of the birth certificate of the first child of the deceased was considered, there was no reason to disbelieve the age of the deceased as 40. The income of the deceased was determined on the basis of the certificate issued by the President of the Mandvi Merchant Association and the Sarpanch of the Gram Panchayat of the village where the deceased resided with his family, and the reliance was placed on the decision of the Apex Court in the case of Gurmit Kaur vs. State of Haryana, reported in 2000 ACJ p.557, that the certificate issued by the Mandvi Merchant Association could be believed and a pragmatic view is to be taken in a case where a person was maintaining a family of six persons consisting of wife and five minor children and was in trading activity since last 20 years. The Tribunal also concluded that the complaint and panchanama of place of accident would reveal rash and negligent driving by the driver of the S.T. Bus owned by the S.T. Corporation. Considering the documentary evidence, the Tribunal awarded compensation of Rs.6,42,000/ under various heads in favour of the claimants.
5 In this appeal, Mrs. Falguni Patel, learned counsel for the appellantGSRTC has challenged the above award only on the ground of 'contributory negligence' and, in the above context, she would submit that the deceased, driver of the moped, in fact, lost control of his two wheeler and dashed with the S.T. Bus and, unfortunately, died on the spot. Therefore, 'contributory negligence' to that extent ought to have attributed to the deceased and the compensation to that extent would have been reduced. Even, according to her, the Tribunal committed a grave error in assessing the income of the deceased in absence of documentary evidence and other aspects and parameters of awarding compensation were not considered by the Tribunal and the award impugned to that extent deserves to be quashed and set aside.
6 Mr. Kirtidev Dave, learned counsel for the respondentsclaimants would submit that the award of the Tribunal, on the contrary, appears to be on the lower side in as much as the deceased was aged about 40 years and the Tribunal had only applied the multiplier of 12 and, in view of the fact that the widow and five children consisted of the family, the Tribunal ought to have deducted onefourth in stead of onethird towards the personal and living expenses of the deceased from the income of the deceased so assessed and determined after considering the deposition of the widow of the deceased and the certificate issued by the Mandvi Merchant Association and the Sarpanch of the village of gram panchayat to the effect that the deceased was in trading activity since last 20 years and had a grocery shop of his own and was also functioning as a commission agent with the Merchant Association. Considering the above aspects, it is submitted that no case is made out by the appellant in absence of any illegality or arbitrariness in the award of the Tribunal and the appeal deserves to be dismissed.
7 Having heard the learned counsels for the parties and on perusal of the record, and the decisions of the Apex Court in regard to award of compensation in the claims arising out of accidents, in my view, the Tribunal rightly concluded that the sole negligence was of the driver of the S.T. Bus and the deceased died on the spot when the moped driven by him was hit by the oversped S.T. Bus. The above conclusion of the Tribunal was based on the panchanama of the place of accident drawn and deposition of the son of the deceased who received injuries as a pillion rider and who also filed a claim petition for the injuries sustained by him. Considering the above, it cannot be said that the reasoning and conclusion of the Tribunal holding that the driver of the S.T. Bus owned by the S.T. Corporation was negligent, is illegal or unlawful. Besides, the income and age of the deceased was also determined after verifying the record including the certificate issued by the Mandvi Merchant Association and the Sarpanch of the village of gram panchayat. Even the Tribunal has applied multiplier of 12 only to the deceased aged 40 years at the time of the accident and deducted onethird towards the personal and living expenses of the deceased, who was maintaining the family consisting of five members. Considering the above, in my view, the Tribunal has not committed any error of law or jurisdiction, which calls for any interference by this Court in this appeal.
In the result, this appeal is dismissed.
(ANANT S. DAVE, J.) (swamy)