(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These appeals arise out of a common judgement and award of the Motor Accident Claims Tribunal(Main) Bhavnagar dated 18.5.2000. Since common evidence was led before the Claims Tribunal giving rise to common impugned judgement and also since the learned advocates for the parties had made their submissions jointly for all the appeals, we propose to dispose of these appeals by this common judgement.
2. On 23.10.1997 when the ST bus belonging to the appellant State Road Transport Corporation was travelling towards the village Limbada from village Limbala and was being driven by the driver of the ST Corporation, at around 10:30 in the morning, the vehicle dashed against the motor cycle coming from opposite direction which was being driven by Bhimjibhai. His two minor sons were also travelling with him. Accident resulted into unfortunate death of all the three passengers traveling on the motor cycle. Heirs and dependents of the deceased therefore, filed three separate claim petitions. For the death of deceased Bhimjibahi, his wife, two minor children and aged parents filed MACP No.867/1997 claiming compensation of Rs.17,50,000/ from the driver and owner of ST Bus. For the death of minor Kalpesh aged about 11 years MACP No. 868/1997 was filed claiming compensation of Rs. 2,50,000/. For the death of minor Yogesh aged about 9 years, MACP No.869/1997 was filed claiming compensation of Rs. 2,00,000/.
3. The Claims Tribunal passed the impugned award holding that the driver of the ST bus was solely negligent for causing the accident. Insofar as claim petition for death of deceased Bijibhai was concerned, claimants were awarded compensation of Rs. 6,35,000/ with proportionate cost and interest at the rate of 12% per annum from the date of petition till payment. For both the minor Kalpesh and Yogesh, Claims Tribunal awarded identical separate sum of Rs.1,16,000/ each to the claimants with interest.
4. We may notice that insofar as MACP No.867/1997 is concerned, in the appeal relatable to such petition being First Appeal No.3625/2000, the appellant Corporation has limited its challenge to Rs. 2,00,000/ in appeal. Similarly in First Appeals No. 3626/2010 and 3627/2010, appeal is limited to Rs.58,000/ each.
5. Learned counsel for the appellant Corporation mainly pressed the appeals on two grounds. Firstly, it was his contention that the Claims Tribunal erred in attributing 100% negligence on the ST bus driver. It was his contention that even the motorcyclist had by his negligence contributed to the accident. Second aspect of the challenge of the Corporation was with respect to quantum of compensation awarded which according to the counsel was on higher side. Both these aspects, we would advert at some length at a later stage.
6. Upon perusal of the judgement and award of the Claims Tribunal, we notice that the Claims Tribunal having taken into account panchnama of the scene of accident exh.26, FIR lodged by the conductor of the bus exh.25 and other attendant circumstances, come to the conclusion that driver of ST bus was solely negligent for causing accident. Claims Tribunal noted that in the complaint lodged by the conductor of the bus, he had stated that accident occurred on account of rash driving by the driver of ST bus. From the position of the vehicles and other details available from panchnama, Tribunal formed an opinion that the ST bus driver had not applied any breaks. Motorcycle had dragged for a long distance after impact. ST bus was found lying in the right hand side ditch. Considering these aspects, Tribunal came to the conclusion that the accident occurred solely on account of rash driving of the bus by the bus driver.
7. With respect to quantum of compensation, in case of deceased Bhimjibhai, Tribunal relied on the evidence of his wife Madhuben recorded at exh.24 and certificate issued by the Panchayat at exh.45 and 46 certifying the income of the deceased. Tribunal noted that the deceased was engaged in business of diamond polishing. He had installed machines and engaged labourers for such work. Documents in support thereof were produced on record. Tribunal also noted that deceased owned agricultural land which was irrigated. Claims Tribunal therefore, assessed the current income of deceased at Rs.3500/ per month at the time of his death. Giving benefit of future increase in the income, Tribunal accepted a sum of Rs.5000/ as the base figure. From such income of Rs.60,000/ per year, Tribunal reduced Rs.20,000/ per year for personal expenditure and accepted sum of Rs.40,000/ per year as dependency benefit of the claimants. Looking to the age of the petitioner being 36 years, Tribunal adopted multiplier of 15 and arrived at figure of Rs. 6 lakhs. To such figure, the Tribunal added sum of Rs.20,000/ towards loss of estate and Rs.15000/ for damage to the vehicle. Tribunal, in all, thus awarded sum of Rs.6,35,000/ to the dependents of deceased Bhimjibhai.
8. With respect to the death of two minor sons of Bhimjibhai, the Tribunal awarded total sum of Rs.1,16,000/ each as already noted.
9. Coming to the question of negligence, we find that in the FIR lodged by the conductor of the ST Bus involved in accident(exh.25), he clearly stated that on account of negligence of the bus driver, which was being driven at a high speed, the accident occurred. Further we also notice that the panchnama of the scene of accident does not record any break marks. From the panchnama, we further find that the motorcycle had dashed against the ST bus on right hand side thus belying the theory of bus driver putforth in his deposition exh.57, that the motorcycle had suddenly come from wrong side. In his deposition also Lalitkumar driver exh.51 never stated that he had applied breaks to avoid accident. Additionally, we note that the Tribunal had discarded the theory of the bus coming at slow speed on account of speed breaker by suggesting that speed breakers were crossed by the bus some 800 to 900 ft. before the accident giving sufficient time to ST bus to regain its speed. Most significantly, ST bus was found lying in ditch by the road side.
10. All these factors would unequivocally and clearly establish that ST bus driver was driving the vehicle rashly and negligently. If bus was being driven under normal speed as was being suggested by driver and if he had taken sufficient care surely, there would have been break marks on the road and particularly bus would not have been found from the ditch near by the road. Further, impact of the accident must have been so enormous that motorcycle dragged for quite a distance after the accident. We have therefore, no hesitation in confirming the view of learned Tribunal that ST bus driver was 100% negligent in causing the accident.
11. Coming to the question of quantum of compensation, insofar as claim petitions relatable to both the minor boys are concerned, not much discussion is necessary. In series of decisions, this Court as well as Apex Court has been adopting formula of just and reasonable compensation even in case of death of minors. In fact counsel for ST Corporation was not in a position to seriously dispute computation of such compensation atleast in case of both minor boys.
12. Coming to the main contested part of the appeal namely, with respect to compensation for death of deceased Bhimjibhai, we find that deceased was engaged in business of diamond polishing. He had installed machines for such purpose and engaged labourers. The Panchayat had issued certificate exh.47 indicating that Bhimjibhai had diamond polishing factory in the village. In exh.46, Panchayat had certified that deceased Bhimjibhai was also doing agricultural work and earning approximately Rs.75,000/ per year. The claimants had produced documents to show that deceased owned agricultural land and that such agricultural land was irrigated. They had produced bills for purchase of seeds, pesticides and fertilizers showing that deceased was carrying on agricultural activities. The claimants had produced receipts showing the sale proceeds of the agricultural product such as cotton.
13. Madhuben, widow of deceased was examined at exh.24. She had stated that at the time of accident her husband was running a diamond factory. He had two machines installed for the said purpose. He was purchasing raw material from Bhavnagar and would sell it back after polishing also at Bhavnagar. He was earning approximately Rs.4000/ to Rs.5000/ per month from such business. Additionally he was also engaged in agriculture. He had about 17 to 18 Vigas of land. He used to take two crops a year and earning about Rs.1 lakh per year from such agricultural operations. She stated that after the accident, family members had to give the land on share crop basis to a relative and the relative would take 2/3rd of the produce and 1/3rd would be given to the family. Diamond factory has been closed down. She further stated that her fatherinlaw and motherinlaw are aged about 67 and 65 years respectively. She also produced at exh.48 necessary account books maintained by the deceased with respect to diamond polishing business.
14. From the above, it can be seen that deceased was engaged in business of diamond polishing from which he could be expected to earn reasonable income. Additionally, he also had sizable amount of agricultural land which was irrigated. To our mind, Tribunal committed no error in believing his income at Rs.3500/ per month at the time of his death. Even discarding some of the exaggerated claim of wife of the deceased and certificate issued by Panchayat, it cannot be denied that deceased had two clear sources of income. There was oral as well as documentary evidence produced in support of both the activities. Claimants had produced necessary documents to show that deceased had agricultural land which land was irrigated. They had produced bills for purchase of various items such as seeds, fertilizers, pesticides, etc. They had also produced receipts for sale of agricultural produce. With respect to diamond polishing business also in addition to deposition of wife of deceased on record, certificate of Panchayat and also accounts maintained by deceased with respect to such business were produced.
15. By no stretch of imagination, acceptance of Rs.3500/ as income of the deceased from both sources put together can be stated to be excessive. Tribunal thereafter, gave reasonable increase in future and adopted sum of Rs.5000/ which also in our view was perfectly reasonable.
16. From the said figure of Rs.5000/ per month or Rs.60,000/ per year, Tribunal reduced Rs.20,000/ per annum for personal expenditure of deceased himself. We notice that deceased had left behind as many as five dependents, namely, his widowed wife, minor daughters and aged parents. Tribunal set apart as much as 1/3rd of the earning of the deceased for his personal expenditure. Surely, deceased could not have been expected to spend on his own self anything more than 1/3rd of his income. The datum figure of Rs.40,000/ per annum arrived at by the Tribunal was thus quite in order. Tribunal as already noted, adopted multiplier of 15 for deceased who was aged 36 years – his age having been proved through documentary evidence – also committed no error.
17. Counsel for the appellant however, submitted that Tribunal awarded sum of Rs.20,000/ for loss of estate whereas at the relevant time, trend was to adopt the lower figure. Only on this count, no interference is called for. Firstly, the Tribunal did not grant any amount for transportation charges and post death ceremonies. Tribunal also awarded no separate amount for loss of consortium to wife. In totality of facts of the case, no case for reduction is made out. In the result all appeals are dismissed with costs.
18. If during the pendency of these appeals, any amount deposited by the ST Corporation in satisfaction of the award of the Claims Tribunal is still lying in fixed deposits, same shall be released in favour of the claimants upon its maturity.
R and P be transmitted to the trial Court.
(raghu) (Akil Kureshi,J.) (C.L. Soni, J.)