1. Both these appeals arise out of the same vehicular accident and common impugned award and hence, they are disposed of by this common judgment.
2. First Appeal No.211/1993 has been preferred against the judgment and award dated 10.07.1992 passed by the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad (for short, “the Tribunal”) in M.A.C.P. No.883/1984 whereby, the claim petition was partly allowed and respondents no.1 to 3, original claimants, were awarded total compensation of Rs.6,27,000/- along with interest at the rate of 12% per annum from the date of application till its realization with proportionate costs.
3. First Appeal No. 212/1993 has been preferred against the judgment and award passed in M.A.C.P. No.886/1984 whereby, the claim petition was partly allowed and respondents no.1 to 4, original claimants, were awarded total compensation of Rs.5,75,000/- along with interest at the rate of 12% per annum from the date of application till its realization with proportionate costs.
4. The facts in brief are that on 03.04.1984 at about 2330 hrs. Janakbhai was travelling in an Ambassador Car bearing registration No. GRR-1936 driven by one of his colleagues, Pruthvisinh. While they were passing through the Kheda – Ahmedabad Highway, all of a sudden the driver of the Car noticed a stationary Truck bearing registration No. GTB-6640 parked on the road but, he could not control the vehicle and dashed the rear portion of the Truck. The said Truck was driven by appellant no.3, owned by appellant no.2 and insured with appellant no.1-Insurance Company. The said Car belonged to respondent no.6-Company and it was insured with respondent no.7. In the said accident, both Janakbhai and Pruthvisinh sustained severe bodily injuries and ultimately, both died. Their legal heirs filed M.A.C.P. No.883/1984 and 886/1994 before the Tribunal claiming compensation of Rs.10.00 Lacs and Rs.6.25 Lacs respectively. Both the claim petitions came to be partly allowed by way of the common impugned award. Being aggrieved by the same, the appellants have preferred the present appeals.
FIRST APPEAL No.211/1993 :
5. The main contention raised by Mr. Sunil Parikh for Mr. Rajni Mehta for the appellant-Insurance Company is that the Tribunal has erred in appreciating the panchnama of the scene of accident in its proper perspective. It has been submitted that had the driver of the Car been alert while driving the vehicle, the accident could have been averted since a major part of the Truck was well parked on the 'kachha' side of the road. It has been contended that the Tribunal has also erred in adopting the multiplier of 20, which is on the higher side considering the age of the deceased at the time of accident. It has been, therefore, submitted that the compensation awarded by the Tribunal deserves to be reduced.
6. Mr. H.D. Chudasama learned counsel appearing on behalf of respondents-original claimants is that the Truck in question had been parked negligently on the road without any reflectors in 'ON' position and that to during night hours. It has been submitted that since the road was a State Highway, the driver of the Truck ought to have taken necessary care and caution and parked the vehicle on the side of the road. He, therefore, submitted that the Tribunal was justified in holding the Truck driver solely negligent for the accident. In support of his submission, reliance has been placed on a decision of this Court in the case of Premlata Nilamchand Sharma and others v. Hirabhai Ranchhodbhai Patel, 1982 G.L.H. 582 and another decision in the case of The New India Assurance Co. Ltd. v. Meenaben Pankajkumar Joshi and others reported in MANU/GJ/0797/2007.
6.1 Learned counsel further submitted that the Tribunal awarded the compensation in question after appreciating the evidence on record in its proper perspective. Hence, this Court may not disturb the impugned award passed by the Tribunal.
7. Heard learned counsel for the respective parties. It appears from the panchnama of the scene of accident that the total width of the road is 22” ft. The Truck in question was about 7” ft. wide and 23” ft. in length. The left rear and front wheels of the Truck was lying about 1” ft. on the 'kachha' side of the road and the remaining part, i.e. about 6” ft. was on the asphalt road. Considering the total width of the road, the other vehicles passing-by were having another 5” ft. to cross the area where the Truck had been parked. The Ambassador Car was 5” ft. wide and 14” ft. in length. Therefore, it can be said that the Car was having sufficient space to cross the Truck. Considering the above aspects of the case, the driver of the Truck cannot be said to be solely negligent for the accident. It is true that a major part of the Truck had been parked on the asphalt road and that no reflectors were switched on by the driver of the Truck. However, considering the panchnama of the scene of accident, I am of the view that had the driver of the Car been alert, the accident could have been averted. Under no circumstances, the Truck driver could be held solely negligent for the accident. In my opinion, the ratio of negligence between the Truck driver and the Car driver could be assessed at 50 : 50.
7.1 In Premlata's case (supra) relied upon by learned counsel Mr. Chudasama, the offending vehicle had been parked entirely on the road and the accident had taken place in a foggy night whereas, in Meenaben's case (supra), the offending vehicle had been parked on the middle of the road. In the instant case, some part of the offending vehicle had been parked on the 'kachha' side of the road and it is not the case of the claimants that the day on which the accident occurred, the visibility on the road was less. Considering the facts of the case and the panchnama of the scene of offence, both the decisions relied shall not be of any help to the respondent-claimants.
8. On the aspect of quantum, I find that the Tribunal has assessed the annual income of the deceased at Rs.36,000/-. However, there is no documentary evidence on record as to on what basis the Tribunal has arrived at the aforesaid figure. If we assess the annual income of the deceased at Rs.36,000/-, then the income would definitely come within the limits of taxable income for the year in which the accident took place. The claimants have not produced any Income Tax Returns on record. Under such circumstance, it is difficult to conclude that the annual income of the deceased was Rs.36,000/-. Considering the taxable limit for the year in which the accident occurred and the qualification of the deceased, the annual income could be notionally assessed at Rs.15,000/-. By adopting the principle laid down by the Apex Court in the case of Sarla Dixit v. Balwant Yadav and Another, 1996 (3) SCC 179, the prospective income of the deceased could be assessed at not more than Rs.22,500/- annually. If we deduct 1/3rd amount towards personal expenses, the balance amount of Rs.15,000/- would be the annual loss of dependency benefit. The deceased was 28 years of age at the time of accident and even if we adopt the multiplier of 15, the total income under the head of loss of dependency benefit would come to Rs.2,25,000/-. The Tribunal has awarded another Rs.27,000/- in aggregate under the heads of loss of expectation of life, loss of consortium and funeral expenses. After deducting 50% amount towards negligence, the claimants shall be entitled for total compensation of Rs.1,26,000/- along with interest awarded by the Tribunal. The Tribunal has awarded Rs.6,00,000/- under the said head and hence, the excess amount is required to be refunded to the appellant-Insurance Company.
FIRST APPEAL No.212/1993 :
9. Heard Mr. Sunil Parikh learned counsel for the appellant. None appears on behalf of the respondents- original claimants.
10. The issue regarding negligence has been discussed in the foregoing paragraphs and hence, the same is not discussed again for the purpose of the present appeal. Accordingly, negligence is apportioned at 50 : 50 between the Truck driver and Car driver.
11. So far as the aspect of compensation is concerned, the Tribunal has assessed the annual income of the deceased at Rs.36,000/-. As discussed in the foregoing paragraphs, the claimants in this First Appeal had also not produced any documentary evidence to prove the income of the deceased. In the absence of documentary evidence on record, it would be appropriate to assess the notional annual income of the deceased at Rs.15,000/- and prospective income at Rs.22,500/- on the basis of the principle laid down by the Apex Court in Sarla Dixit's case (supra). In this case, the claimants are parents and therefore, they shall be entitled for ½ towards dependency benefit in view of the principle laid down in Sarla Verma's case (supra), which would come to Rs.11,250/-. Considering their age, the multiplier of 11 could be adopted and thus, the total income under the head of loss of dependency benefit would come to Rs.1,23,750/-. However, after deducting 50% amount towards negligence, the claimants shall be entitled for Rs.61,875/- under the head of loss of dependency benefit. The Tribunal has awarded another Rs.15,000/- in aggregate under the heads of loss of expectation of life and funeral expenses. Therefore, in all, the claimants in this appeal shall be entitled for total compensation of Rs.76,875/- along with interest awarded by the Tribunal. The Tribunal has awarded Rs.5,75,000/- under the said head and hence, the excess amount is required to be refunded to the appellant-Insurance Company.
12. For the foregoing reasons;
(a) First Appeal No.211/1993 is partly allowed. The impugned award passed by the Tribunal in M.A.C.P. No.883/1984 is modified to the extent that the original claimants shall be entitled for total compensation of Rs.1,26,000/- along with interest as awarded by the Tribunal. The impugned award stands modified to the above extent. The excess amount of Rs.5,01,000/- shall be refunded to the appellant-Insurance Company at the same rate of interest which was awarded by the Tribunal. It is made clear that if the amount lying with the Tribunal is already withdrawn by the original claimants, then the same shall not be recovered from the claimants but, shall be recovered from the owner of the offending vehicle.
(b) First Appeal No.212/1993 is also partly allowed. The impugned award passed by the Tribunal in M.A.C.P. No.886/1984 is modified to the extent that the original claimants shall be entitled for total compensation of Rs.76,875/- along with interest as awarded by the Tribunal. The impugned award stands modified to the above extent. The excess amount of Rs.4,98,125/- shall be refunded to the appellant-Insurance Company at the same rate of interest, which was awarded by the Tribunal. It is made clear that if the amount lying with the Tribunal is already withdrawn by the original claimants, then the same shall not be recovered from the claimants but, shall be recovered from the owner of the offending vehicle.
(c) Both the appeals stand disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*