Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================================= MANGLABEN W/O DECD. SATISH SAKHARAM JAGADALE & 2 - Appellant(s) Versus MEGHAJI RATA JOGI & 5 - Defendant(s) ========================================================= Appearance :
MR NALIN K THAKKER for Appellant(s) : 1 - 3.
None for Defendant(s) : 1, 4, NOTICE SERVED for Defendant(s) : 2, MR RAJNI H MEHTA for Defendant(s) :
3, MR CH VORA for Defendant(s) : 5, MR AJAY R MEHTA for Defendant(s) :
6, ========================================================= CORAM :
HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/02/2012 ORAL COMMON JUDGMENT
1. This group of appeals have been preferred against the common judgment and award dated 26.08.1997 passed by the Motor Accident Claims Tribunal [Aux.] Kachchh at Bhuj in M.A.C.P. No. 164/1989, in M.A.C.P. No. 125/1989 and in M.A.C.P. No. 126/1989, whereby the claim petitions were partly allowed and the original claimants were awarded total compensation of Rs.5.00 lacs in M.A.C.P. No. 164/1989, Rs.2.00 lacs in M.A.C.P. No. 125/1989 and Rs.2.00 lacs in M.A.C.P. No. 126/1989 along with interest @ 15% per annum from the date of the application till its realization.
2. The facts in brief are that on 11.01.1989, while Satish Sakharam, Anant Nayak and Mahesh Krishna were travelling in a Rickshaw bearing no. GTY 7556, driven by respondent no. 4 and insured with respondent no. 6, from Gandhidham Railway Station to Kandla Free Trade Zone, on account of darkness, the driver of the Rickshaw dashed a stationary Truck bearing no. GTY 5500, which was parked on the road without any side indications, owned by respondent no. 2 and insured with respondent no. 3, as a result of which, Satish Sakharam, Anant Nayak and Mahesh Krishna sustained severe bodily injuries and later on died. The legal heirs of the deceased therefore filed claim petitions, which came to be partly allowed, by way of the impugned award. Being aggrieved by the said award, the original claimants and the Insurance Company have preferred the cross appeals.
First Appeal No.1025/1998 and 1026/1998 :
3. The learned counsel for the appellants - original claimants, submitted that the accident in question occurred on account of composite negligence on the part of driver of both the vehicles and therefore, the Tribunal has committed error in apportioning the liability at 50 : 50 between respondents nos. 1 to 3 on one side and respondents nos. 4 and 5 on the other.
3.1. In support of his submission he had place reliance on the decision of the Hon'ble Apex Court in the case of Saudagarsing Chhajusing & Ors. v. Jashodaben & Anr. 1986 ACJ 1070 and on a decision of this Court in the case of Premlata Nilamchand Sharma & Ors. v. Hirabhai Ranchhodbhai Patel & Ors., 1982(2) GLR 203.
3.2. The learned counsel for the appellants - original claimants had also placed reliance on Section 122 of the Motor Vehicles Act, 1988, which reads as under :-
"Section 122 : Leaving vehicle in dangerous position - No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers."
First Appeal No. 4654/1997 to 4656/1997 :-
4. The learned counsel for the appellant - Insurance Company submitted that the accident in question took place on account of the sole negligence of the driver of the Rickshaw and therefore, the Tribunal was not justified in holding that there was contributory negligence. In support of his submission, he has placed reliance on the decision of the Hon'ble Apex Court in the case of New India Assurance Company Ltd. v. Bismillah Bai & Ors. (2009) 5 SCC 112, 4.1. Learned counsel for the appellant further contended that the compensation awarded by the Tribunal under the respective heads is on the higher side. It is submitted that the Tribunal erred in arising the income of the deceased and in also adopting the multiplier of 15.
5. Heard learned counsel for the respective parties and perused the documents on record, as also the decisions relied upon by the respective parties. It appears from the panchnama of the place of accident and also the FIR filed at the time when the accident took place, the Truck in question was stationary and had been parked without the indicators switched on. It also appears that the area where the Truck in question had been parked was dark. It is also evident from the record that the accident took place at around 2145 hours. While driving during such time, necessary care and caution has to be taken. It is true that the Truck had been parked on the road without indicators in switched on position but had the Rickshaw been driven in a moderate speed then the Rickshaw driver would have reasonable time to notice the stationary Truck. The manner in which the accident took place leads us to believe that the accident occurred on account of negligence of both the driver of the Truck and the driver of the Rickshaw. The driver of the Truck was negligence for the reasons that he had parked the vehicle on the road without putting indicators in switched on position and that to during the night hours and in a area which was even darker at the relevant point of time. The driver of the Rickshaw was equally negligent for the reasons that if he had driven the vehicle at a moderate speed then he would have got reasonable time to notice the Truck being parked at a particular distance in front of him. Even if it is presumed that the vehicles with their head lights on were coming from the opposite direction, considering the panchnama of the scene of accident and the FIR, I am of the opinion that the Tribunal has rightly apportioned the negligence between the driver of the Truck and the driver of the Rickshaw at 50 : 50 and I do not find any reasons to disturb the same. In view of the facts of the present case and the panchnama of the scene of accident, which shows that the accident occurred on account of the negligence of both the drivers as also the decision rendered, I am of the opinion, that the decisions relied upon by the learned counsel for the appellant shall not apply in the case on hand.
M.A.C.P.
No. 164/1989 :-
6. In this claim petition, the Tribunal has assessed the monthly dependency benefit at Rs.3,000/- and has assessed the monthly income to be somewhere between Rs.5,000-7,000/-. It appears that the said assessment of income has been based on the basis of some voucher issued by the contractor. There is no documentary evidence on record which proves that the deceased was earning definite sum every month. On the basis of single document the Tribunal has assessed his monthly income to be somewhere between Rs.5,000-6,000/-. The assessment of monthly dependency at Rs.3,000/-, in my view, the assessment made by the Tribunal is erroneous since the taxable income for the year in question was Rs.18,000/-. No documents pertaining the income tax paid by the deceased has been produced on record. In such circumstances, the Tribunal ought not to have assessed the annual income of the deceased in excess of Rs.18,000/-. Thus, it would be appropriate to consider the annual income of the deceased at Rs.18,000/- annually for the purpose of present claim petition. Accordingly, the prospective income of the deceased would come to Rs.27,000/- in view of the principle laid down in the case of Sarla Verma v. Delhi Road Transport Corporation, (2009) 6 S.C.C. 121. Since the total number of claimants are three, deduction of 1/3rd amount is required to be made towards the personal expenses of the deceased. Accordingly, the annual dependency benefit would come to Rs.18,000/-. Since the deceased was aged 30 years, the appropriate multiplier would be 17. Thus, by adopting the said multiplier, the total dependency would come to Rs.3,06,000/-. The claimants are also entitled to Rs.10,000/- towards loss of estate, Rs.5,000/- towards funeral expenses. Thus, in all the claimants shall be entitled for total compensation of Rs.3,31,000/-. However, the Tribunal has awarded total compensation of Rs.5.00 lacs. Therefore, excess amount of Rs.1,69,000/-
is required to be refunded to the Insurance Company along with interest @ 3% per annum.
M.A.C.P.
No. 125/1989 and M.A.C.P. No. 126/1989 :-
7. So far as assessment regarding monthly income made by the Tribunal in the aforesaid two claim petitions are concerned, the learned counsel for the appellant Insurance Company has not disputed the same. Hence, the income assessed by the Tribunal at Rs.1,500/- is just and proper. While calculating dependency benefit, the Tribunal ought to have deducted 1/2nd towards personal expenses, in view of the principle rendered in Sarla Verma's case (supra). Therefore, the monthly dependency loss would come to Rs.750/- and annual loss at Rs.9,000/-. By adopting the multiplier of 14, the total income under the head of loss of dependency would come to Rs.1,31,000/-. The claimants are also entitled to Rs.10,000/- towards loss of estate, Rs.5,000/- towards funeral expenses in M.A.C.P. No. 125/1989 and in M.A.C.P. No. 126/1989, the claimants are also entitled to Rs.10,000/- towards loss of consortium. Thus, in all the claimants shall be entitled for total compensation of Rs.1,41,000/- in M.A.C.P. No. 125/1989 and Rs.1,51,000/- in M.A.C.P. No. 126/1989. However, the Tribunal has awarded total compensation of Rs.2.00 lacs. Therefore, excess amount of Rs.59,000/- in M.A.C.P. No. 125/1989 and Rs.49,000/- in M.A.C.P. No. 126/1989 is required to be refunded to the Insurance Company along with interest @ 3% per annum. So far as income awarded under the other heads are concerned, the same are just and appropriate and hence, are not disturbed.
First Appeals No.4654/1997 to 4656/1997 :
8. For the foregoing reasons, the appeals are partly allowed. The impugned common award is modified to the extent that the claimants of M.A.C.P. No.164/1989 shall be entitled for total compensation of Rs.3,31,000/-, the claimants of M.A.C.P. No.125/1989 shall be entitled for total compensation of Rs.1,41,000/- and the claimants of M.A.C.P. No. 126/1989 shall be entitled for total compensation of Rs.1,51,000/- along with interest at the rate of 12% per annum from the date of application till its realization. The excess amount of Rs.1,69,000/-, Rs.59,000/- and Rs.49,000/- shall be refunded t to the Insurance Company along with interest @ 3% per annum. The common impugned award stands modified to the above extent. The appeals stand disposed of accordingly.
9. First Appeals Nos. 1025/1998 and First Appeal No. 1026/1998 stand dismissed.
[K.S.
JHAVERI, J.] /phalguni/