IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2609 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ?
========================================================= KANCHAN LALJI & 6 - Appellant(s) Versus HAIDER RAJAB CHARANIA & 1 - Defendant(s) ========================================================= Appearance :
MR PJ KANABAR for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 2.
RULE SERVED BY DS for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2, MR SUNIL B PARIKH for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 09/11/2012 CAV JUDGMENT
1. The challenge in this appeal is to the judgment and award dated 31.3.2006 passed by learned M.A.C.T (Auxiliary No.2), Amreli in M.A.C.P. No.115 of 2004. The Tribunal awarded Rs.3,31,000/- by way of compensation to the appellants, who were original claimants and further directed that they were entitled to recover simple interest on the principal amount of compensation @ 6% p.a. from the date of the filing of the said claim petition till realisation and proportionate cost thereon. The Tribunal directed both the respondents, who were original opponents to pay said amount of compensation with interest and cost to the appellants – claimants jointly and severally. The original claimants felt that the amount awarded by way of compensation was on lower side and, therefore, preferred this appeal for enhancement of amount of compensation to the extent of Rs.4,69,000/-.
2. The appellants were, therefore, original claimants and the respondents were original opponents and so for the sake of convenience, the appellants and the respondents shall be referred to in this judgment as the claimants and the opponents.
3. The brief facts leading to the original claim petition are that on dated 1.11.2003 at about 7.30 p.m., the deceased – Laljibhai Laxmanbhai was going on his motorcycle No.GJ- 14F-2580. The deceased was riding his motorcycle with moderate speed and on correct side of the road. He was going to Dhareshwar from Rajula. It is the case of the claimants that at the relevant time, one deceased Ali Raja Yusuf Ali was riding his motorcycle No.GJ-14F-6271 belonging to the opponent No.1 and he was coming from the opposite direction and he was riding his motorcycle with full speed rashly and negligently and dashed his motorcycle with the motorcycle of deceased Laljibhai. Deceased Laljibhai sustained serious bodily injuries and he was initially shifted to Civil Hospital, Bhavnagar and, thereafter, to SAL Hospital, Ahmedabad and during the course of his treatment, Laljibhai succumbed to the injuries on 10.11.2003. It is further pertinent to note that even the rider of the opposite vehicle, namely, motorcycle No.GJ-14F-6271 – Ali Raja Yusuf Ali also succumbed to the injuries.
3.1 It is the case of the claimants that at the time of accident and death, the deceased was aged about 35 years and was serving in State Bank of Saurashtra, Dhareshwar branch as Peon and at the relevant time, his salary was Rs.7,245/-. The claimants initially filed the aforementioned claim petition to recover in all Rs.8 Lacs by way of compensation, but during the pendency of the said claim petition, by amendment, they enhanced their claim amount to Rs.15 Lacs.
4. Both the opponents came to be served with notices by the Tribunal. The opponent No.2 – insurance co. challenged the claim petition by filing written statement, Exh.13. The opponent No.2 – insurance co. challenged the factum of accident. Alternatively it was contended that the deceased himself was solely responsible and negligent for the accident the involvement of the vehicle belonging to the opponent No.1 was also challenged.
5. Before the Tribunal, the evidence of appellant No.1 Kanchanben Laljibhai, widow of the deceased was recorded. During the course of her evidence, relevant documents came to be produced and proved. No more witness came to be examined by the claimants. On behalf of the opponents, no oral evidence came to be adduced. The Tribunal, after considering the oral and documentary evidence on record, so also the submissions advanced on behalf of both the sides, delivered the impugned judgment and award dated 31.3.2006. The
motorcycles, namely, deceased Laljibhai so also deceased Ali Raja were equally negligent for causing the accident and, thus, their negligence was apportioned at 50% : 50%. The Tribunal, thus, held that the deceased was contributorily negligent to the extent of 50%. The Tribunal came to the conclusion that the claimants were entitled to recover Rs.6,30,000/- (Rs.5250 x 12 x 10) by way of compensation under the head of loss to the future dependency benefits. The Tribunal also came to the conclusion that the claimants were entitled to recover Rs.20,000/- under the head of pain, shock and suffering, Rs.10,000/- under the head of loss of estate and Rs.2,000/- towards funeral expenses. Thus, the Tribunal came to the conclusion that the claimants were though entitled to recover Rs.6,62,000/- by way of compensation, but since the deceased himself was contributorily negligent to the extent of 50% and, therefore, deducted 50% amount from the total amount of compensation arrived at by the Tribunal and, consequently, awarded Rs.3,31,000/- by way of compensation.
6. Mr.P.J.Kanabar, learned advocate for the appellants – claimants, at the outset, submitted that the Tribunal committed serious error of law and facts on record. He submitted that the Tribunal failed to appreciate the oral evidence so also the documentary evidence in the nature of FIR, so also the panchnama of the scene of occurrence and, ultimately, erred in coming to the conclusion that the deceased was responsible to the extent of 50% for the accident. Mr.Kanabar, learned advocate, drew my attention to Exh.33, which is a copy of final report u/s.173 of the Cr.P.C. filled in by the police wherein the contents of the FIR are mentioned and the complainant was elder brother of deceased driver – Ali Raja of the offending vehicle motorbike and it has been further stated by the complainant in his FIR that his deceased brother Ali Raja was driving his motorcycle rashly and negligently and on wrong side of the road and dashed his motorcycle with the motorcycle of the deceased. Mr.Kanabar, learned advocate, therefore, submitted that on the basis of such documentary evidence, the Tribunal should have come to the conclusion that the deceased driver of the offending vehicle motorbike was 100% negligent for causing the accident. He submitted that the Tribunal apportioned the contributory negligence of the deceased Laljibhai without any oral and documentary evidence on record. Mr.Kanabar, learned advocate relied upon a case of Binny Sharma Vs.Om Prakash reported in AIR 2012 Patna 74. He also relied upon the case of Sudhir Kumar Rana Vs.Surinder Singh reported in (2008)12 SCC 436. Mr.Kanabar, therefore, submitted that the Tribunal erred in coming to the conclusion that the deceased Laljibhai was negligent to the tune of 50%.
6.1 Mr.Kanabar, learned advocate for the appellants – claimants asserted that though in paragraph 14 in the impugned judgment and award, the Tribunal came to the conclusion that the appropriate multiplier, which can be used in this case should be 15, but, ultimately, while awarding compensation under the head of loss to the future dependency benefits, the Tribunal applied the multiplier of 10 years without assigning any reason. Mr.Kanabar submitted that there is is no dispute that after the death of deceased, applicant No.1, Kanchanben, widow of deceased was appointed in the same bank where the deceased was serving as Peon on compassionate ground. It is submitted that mere fact that the widow was appointed on compassionate ground, shall not be relevant fact for deduction of any amount of compensation. To substantiate such submission, reliance was placed upon the case of Heirs of deceased Girdharbhai @ Girishbhai Devjibhai, Rekha Vs.Rakeshbhai Gopalbhai Khanpara reported in 2012(2) GLH 246. However, it is submitted that though considering the impugned judgment and award rendered by the Tribunal, expressly, no deduction is made by the Tribunal on the ground that the widow of the deceased was employed in the same bank on compassionate ground. It is further submitted that there is no dispute that the birth date of the deceased was 11.4.1967, therefore, at the time of accident and death, he was aged about 35 years. He further submitted that the Tribunal failed to consider the size of the family, which the deceased left at the time of death and the Tribunal erred in considering 1/4th amount towards the self expenses of the deceased. It is submitted that as a matter of fact, considering the number of dependents, the Tribunal should have deducted 1/5th amount towards the self expenses of the deceased. It is further submitted that the Tribunal erred in awarding compensation on the basis of monthly income of Rs.7245/-. Mr.Kanabar, learned advocate for the appellants – claimants filed a note containing his written arguments, and more particularly, regarding the computation of just and fair amount of compensation and submitted that the Tribunal should have awarded Rs.10,68,000/- by way of compensation and deducting Rs.3,31,000/- being the amount of compensation already awarded, the appellant – claimants are entitled to recover Rs.7,37,000/- by way of additional amount of compensation. Since this appeal is valued at Rs.4,69,000/-, the said amount may be awarded by allowing this appeal.
7. Per contra, Mr.Sunil Parikh, learned advocate for the respondent No.2 – insurance co. opposed this appeal and submitted that the Tribunal rightly came to the conclusion that the deceased Laljibhai was contributorily negligent to the tune of 50%. He submitted that considering the seriousness of the accident wherein the two motorbikes dashed with each other to such an extend that both the riders of the bike succumbed to the injuries. It is submitted that considering the panchnama of the scene of occurrence, it can safely be said that both the drivers were equally negligent. It is submitted that the claimants relied upon Exh.33, which is the police report u/s.173 of the Cr.P.C., but considering the FIR contained in said report, it can safely be said that even the complainant was not eyewitness and, therefore, mere fact that he described the accident in his complaint loses its significance. Mr.Parikh, learned advocate, therefore, submitted that no error is committed by the Tribunal while apportioning contributory negligence of deceased Laljibhai at 50%.
7.1 Mr.Parikh, learned advocate for the respondent No.2 – insurance co. further submitted that the Tribunal did not commit any error while arriving at the just and fair amount of compensation. It is, therefore, submitted that the appeal may be dismissed.
8. Considering the submissions advanced on behalf of both the sides, it transpires that the major grievance ventilated by the appellants is about apportionment of
the conclusion that deceased Laljibhai was 50% contributorily negligent for the accident. The said finding is heavily assailed by the appellants.
9. Considering the record and proceedings of the claim petition, it transpires that the oral evidence only consist of claimant No.1 – Kanchanben, widow of the deceased. Except her evidence, on behalf of the claimants, no witness is examined nor any oral evidence came to be adduced by the opponents. So far as the issue of negligence is concerned, the evidence of Kanchanben pales into insignificance, as in her cross-examination, she admitted that at the time of accident, she was not present. Thus, she was not eyewitness to the incident. Considering the relevant papers from the original record and more particularly the police papers, it further transpires that the rider of the opposite vehicle, the motorcycle No.GJ-14F- 2671, namely, Ali Raja died instantaneously in the accident and, therefore, there was no question of recording his evidence. Under such circumstances, since the rider of the opposite motorcycle died, the question of raising any adverse inference against the opponents may not arise.
10. The appellants mainly relies upon Exh.33, which is true copy of final report u/s.173 of the Cr.P.C. Since the riders of both the motorcycles involved in the accident, namely, Laljibhai as well as Ali Raja died, the police filed abated summary before the concerned Magisterial Court. Considering the report, Exh.33, it transpires that in connection with this incident, FIR came to be lodged by one Siraj Ali, the brother of deceased Ali Raja. Considering the relevant contents of the FIR, reproduced in the report, Exh.33, it transpires that the complainant Siraj Ali was also not present at the spot where the accident occurred, but he came to know about the accident when his brother Ali Raja was brought to the hospital. It is true that in the report in the last paragraph, it has been observed that Ali Raja, the brother of the opponent was coming from Vijpada to Rajula and deceased Laljibhai was on his motorcycle going towards Dhareshwar and it has been further observed in the report that the brother of the complainant, namely, Ali Raja was on wrong side of the road and on account of his negligence, the accident occurred. Considering the relevant papers in the record of the claim petition, it transpires that the claimants themselves produced the true copy of FIR lodged by Siraj Ali, the brother of the deceased – Ali Raja. Considering the true copy of the FIR, Mark 5/1, produced by the appellants – claimants themselves in the claim petition, nowhere it transpires that the complainant Siraj Ali stated in his FIR that the accident occurred because of rash and negligent driving of the motorcycle by his brother Ali Raja. On the contrary, it transpires that Siraj Ali stated in his FIR that one unknown Hero Honda motorcycle driver, driving his motorcycle rashly and negligently dashed his motorcycle with the motorcycle of his brother and the accident occurred. In that view of the matter, nothing transpires that complainant Siraj Ali admitted in his FIR that the accident occurred because of sole rash and negligent driving of the motorcycle by his brother – Ali Raja. In the police report, Exh.33, it is true that in the report, it is stated by the police that the accident occurred because of rash and negligent driving of the motorcycle by brother of the complainant, but in support thereof, nothing is stated in the report, Exh.33 that the police came to said conclusion after recording statement of any eyewitness. To put it differently, in the report, nothing specific emerges as to what is the base of such conclusion arrived at by the police.
11. Exh.34, appears to be the true copy of panchnama of scene of the incident. Considering said panchnama, it appears that the accident occurred on the road coming from Rajula and going towards Vavera and it was a tar road and the place of accident is shown to be near Chandaliya Hill. However, considering the panchnama, nothing specifically is stated about to the direction towards which the road at the place was proceeding. In the panchnama, it is stated that the breadth of the tar road was 10 ft.
It further transpires that the motorcycle No.GJ-14F-2580 driven by deceased Laljibhai was lying on the western side of the road and within about 3 ft. from the western side edge of the road. The damage was on the front wheel of the motorcycle as well as other front parts of the motorcycle. It further transpires that the motorcycle No.GJ-14F-6271 driven by Ali Raja was also lying on the western side of the road and it was lying within 2 ft. from the western end of the road and so far as the said motorcycle is concerned, again the damage was on the front wheel as well as on the front parts of the motorcycle. On the road, glass pieces were found scattered, but the important aspect is that on the road, no wheel marks showing application of brake by either of the motorcycles came to be found. It is further stated that on the western side of the road, one patch of dried blood was found. Considering the claim petition, so also the evidence of Kanchanben Laljibhai, Exh.29, nothing is specifically pleaded or even stated in evidence that at the time of accident, the deceased was coming from which place and was going towards which place. Only facts pleaded in the claim petition in the description of accident and only fact deposed by Kanchanben in her evidence is that at the time of accident, the deceased was driving his motorcycle on his correct side of the road with moderate speed. Moreover, even considering the police report, Exh.33, nothing transpires that at the time of accident, Laljibhai was coming from which direction and was going towards which direction. It is stated that Ali Raja, the rider of offending vehicle motorbike was coming from Vijpadi and was going towards Rajula. Keeping in mind said fact, and simultaneously considering the panchnama of the scene of the accident, nothing transpires that if any vehicle is coming from Vijpada and going towards Rajula whether western side of the road is its correct side or wrong side. This observation shall equally apply even qua deceased Laljibhai, as to whether the western side of the road was his correct side of the road or wrong side of the road.
12. On behalf of the appellants, reliance was placed upon the case of Binny Sharma Vs.Om Prakash (Supra) decided by Patna High Court. In the said case, there was a collision between two vehicles, motorcycle and tempo. The Tribunal assessed equal contributory negligence of the motorcyclist only on the ground that he was not possessing valid driving license. There was positive evidence on record that the motorcycle was on eastern side of the road while coming from north to south whereas the tempo was coming from south to north and, therefore, eastern side of the road was wrong side, so far as the tempo was concerned. Moreover, considering the paragraph 6 in said decision, it transpires that eyewitnesses came to be examined by the claimants before the Tribunal and the Tribunal overlooked the evidence of eyewitnesses. In the facts and circumstances, therefore, Patna High Court set-aside the order of the Tribunal whereby the deceased was held to be contributorily negligent. Considering the facts and circumstances of the instant case, as narrated above, the facts and circumstances in the instant case are totally different. In the instant case, no eyewitness is examined. Nothing transpires that the western side of the road was correct side for the deceased Laljibhai or for deceased Ali Raja. Thus, Binny Sharma's case may not be of any assistance in the instant matter.
13. On behalf of the claimant, reliance was placed upon the case of Sudhir Kumar Rana (supra) decided by Hon'ble the Apex Court. In said case, the contributory negligence of the deceased was assessed by the Tribunal solely on the ground that he was not possessing driving license. It was further observed that the doctrine of contributory negligence in case of children, normally is not applicable with same force as in case of adults. The facts and circumstances of the instant case are again totally different. Nothing transpires that in the instant case, the Tribunal assessed contributory negligence of deceased Laljibhai on the ground of license alone. Even considering the cross-examination made on behalf of the insurance co. in the evidence of claimant Kanchanben, nothing transpires that her deceased husband was not holding any driving service. Even on behalf of the opponent – insurance co., about the driving license, no evidence is adduced.
14. In above view of the matter and considering the impugned judgment and award rendered by the Tribunal on this issue, it appears that the Tribunal rightly took into consideration the fact that there was head on collision of the two motorcycles, the front wheels, so also the the front parts of both the motorcycles were extensively damaged. The seriousness and the intensity of the accident can further be gathered that in the accident, riders of both the motorcycles died, Ali Raja died immediately and deceased Laljibhai died on 10.11.2003. The accident occurred in the month of November at about 7.30 p.m. Under such circumstances, it can further be gathered that sufficient natural light may not be available at that time. It is further pertinent to note that there were no wheel marks showing application of brake of either of the motorcycles. So none of the deceased riders applied brake. So considering the panchnama of the scene of the incident, so also considering the overall evidence on record and in light of the entire above discussions, it cannot be said that the Tribunal committed any error while coming to the conclusion that deceased Laljibhai was equally negligent for causing the accident. In that view of the matter, the Tribunal rightly apportioned the contributory negligence of deceased Laljibhai at 50%.
15. In this appeal, the appellants have also assailed impugned judgment and award rendered by the Tribunal on the ground of quantum of compensation. However, the Tribunal at the first place did not err in deducting 50% amount out of the total amount of compensation, towards the contributory negligence of the deceased Laljibhai. As per the written arguments filed in this appeal on behalf of the appellants, and more particularly the arguments made in the written submission, regarding the computation of the amount of compensation, it has been challenged that the Tribunal erred in computing the amount of compensation on two heads, namely, multiplier and dependency. Admittedly, at the time of accident, the deceased was aged about 36 years. The age of the dependents is also considered. Even considering the impugned judgment and award rendered by the Tribunal, in paragraph 14, the Tribunal came to the conclusion that the proper multiplier in the present case should be 15 years and the same should be adopted, but in the said paragraph, after making such observation, in fact the Tribunal adopted multiplier of 10 years. In above view of the matter, the grievance ventilated by the appellants that though the Tribunal came to the conclusion that the appropriate multiplier should be 15 years, but, ultimately, erred in awarding multiplier of 10 years, carries substance and this Court is of the opinion that in the instant matter, appropriate multiplier, which the Tribunal should have used is 15 years.
16. The Tribunal in the impugned judgment and award deducted 1/4th amount towards the self expenses of the deceased. It is pertinent to note that as per the cause-title of the claim petition, the deceased left 7 dependents, namely, his widow, five children and mother. It is true that in the cross-examination of appellant – Kanchanben, she stated that the mother of the deceased was residing with the elder brother of the deceased. However, the claim petition was filed in the year 2004 and the evidence was recorded later on. Under such circumstances, it can be said that the deceased left seven dependents, but if mother is excluded, even then also the deceased left six dependents and there is substance in the submission made by Mr.Kanabar, learned advocate for the appellants – claimants that in the instant case, the Tribunal should have considered 1/5th amount as self expenses of the deceased. In the evidence of appellant – Kanchanben, it has come that after the demise of her husband Laljibhai, she got employment in the bank itself on compassionate ground. However, considering the impugned judgment rendered by the Tribunal, no amount of compensation is deducted on the ground that the widow got employment on compassionate grounds. Considering the case of heirs of deceased Girdharbhai @ Girishbhai Devjibhai (supra), in said case, while calculating dependency benefits in a fatal vehicular accident matter, Tribunal took into consideration compassionate appointment given to the widow and thereby awarded considerably reduced dependency benefits, but this Court came to the conclusion that no deduction should be made for earning capacity or actual earning of the widow arising from her gainful employment taken up after accidental death of her husband as Scheme of compassionate appointment is available in case of person dying in harness, whether due to accident, naturally or any other cause. Since in the instant case, on this ground, the Tribunal has not made any deduction, no further discussion in this respect is, therefore, required. The Tribunal took into consideration Rs.7,245/- p.m. for the purpose of awarding compensation under the head of loss to the dependency benefits. As stated above, the Tribunal erred in deducting 1/4th amount towards the self expenses of the deceased and the appropriate deduction should be 1/5th. Thus, deducting 1/5th amount i.e.deducting Rs.1,449/- from Rs.7,245/-, it can safely be said that the monthly loss to the dependency benefits comes to Rs.5,796/-, rounded off at Rs.5,800/-, the annual loss would be Rs.69,600/- (Rs.5,800 x 12). The Tribunal applied multiplier of 10 years, but as stated above, appropriate multiplier shall be 15 years. Therefore, under the head of loss to the dependency benefits, the appellants can be said to be otherwise entitled to recover Rs.10,44,000/- (Rs.69,600 x 15). The Tribunal awarded Rs.10,000/- by way of loss to the estate and convention amount and Rs.20,000/- under the head of pain, shock and suffering and Rs.2000/- under the head of funeral expenses and other miscellaneous expenses. In the instant matter, admittedly, the vehicular accident occurred on 1.11.2003 and the deceased sustained serious bodily injuries. He was initially shifted to local Civil Hospital and, thereafter, he was shifted to SAL Hospital, Ahmedabad and during the treatment, he died on 10.11.2003. Under such circumstances, no error appears to have been committed by the Tribunal in awarding the amount of compensation under the other heads stated above.
17. Thus, the claimants are otherwise entitled to recover Rs.10,44,000/- under the head of loss to the dependency benefits, Rs.20,000/- under the head of pain, shock and suffering, Rs.10,000/- under the head of loss to the estate and conventional amount and Rs.2,000/-
under the head of funeral expenses etc. Thus, the total comes to Rs.10,76,000/-. Since the deceased was contributorily negligent to the extent of 50%, the award is required to be reduced qua his contributory negligence and, therefore, this Court is of the opinion that the Tribunal should have awarded Rs.5,38,000/- by way of compensation. The Tribunal awarded Rs.3,31,000/- by way of compensation and, therefore, the appellants – claimants are entitled to recover Rs.2,07,000/- by way of additional amount of compensation. The instant appeal, therefore, deserves to be partly allowed.
18. For the foregoing reasons, the judgment and award dated 31.3.2006 rendered by the learned M.A.C.T. (Auxiliary No.2), Amreli in MACP No.115 of 2004 is hereby modified and it is hereby ordered that the appellants – original claimants are entitled to recover Rs.2,07,000/- (Rupees Two Lac Seven Thousand Only) by way of additional amount of compensation with interest thereon @ 6% p.a. from the date of filing of the original claim petition till the realisation of the amount with proportionate cost thereon, from the respondents – original opponents, jointly and severally.
19. The disbursement order passed by the Tribunal in the impugned judgment and award is not interfered with and the additional amount of compensation shall be disbursed amongst the appellants – claimants by the Tribunal in accordance with said disbursement order. No costs.
(binoy) (J.C.UPADHYAYA, J.)