1. The challenge in this appeal, is to the judgment and award rendered by learned M.A.C.T.(Main), Surendranagar on 6th December 2001 in M.A.C.P.No.679/1994, whereby, the Tribunal came to the conclusion that the appellants herein, who were original claimants in the aforementioned claim petition, were entitled to recover Rs.67,460/-as compensation, together with proportionate costs and interest at the rate of 9% p.a. from the date of the filing of the claim petition till realization, jointly and severally from all the three respondents herein, who were original three opponents before the Tribunal, subject to deduction of 80% amount towards contributory negligence on the part of driver of the Maruti Car bearing registration No.GJ-7A-2187 viz. the injured deceased claimant himself. The claimants felt that the amount awarded by way of the compensation to them, who are heirs of deceased Mahendrabhai Ravjibhai Patel (original claimant), is very less and further that, the concerned Tribunal erred in apportioning 80% contributory negligence qua the deceased original claimant Mahendrabhai Ravjibhai and therefore, the instant appeal is filed.
2. As per the case of the appellants- claimants, the vehicular accident occurred on 09.01.1994 at about 5:30 p.m. near Village Kanpara, on National Highway Road, under the Local Limit of Panshina Police Station of Surendranagar District. The deceased Mahendrabhai Ravjibhai Patel, at the relevant time, was passing on the road driving a Maruti Car bearing registration No.GJ-7A-2187 and he was proceeding from Surendranagar to Ahmedabad. It was the case of the claimants that the deceased was driving his car with moderate speed and on correct side of the road, but from the opposite direction, at the relevant time, the respondent no.1 (opponent no.1) driving his Mazda Tempo bearing registration No.GJ-1U-4508 rashly and negligently and came on the wrong side of the road and dashed with the aforementioned Maruti Car, which was driven by the deceased. It is the case of the claimants that the deceased, at the relevant time, sustained serious bodily injuries and he was required to take medical treatment in various hospitals and practically for the period of about one year, he could not attend his work. It is the case of the claimants that the deceased Mahendrabhai subsequently died on 26.07.1999. Initially, Mahendrabhai Ravjibhai Patel viz. the injured preferred the aforementioned claim petition, but as stated above, he died on 26.07.1999 and therefore, requisite amendment was carried out in the original claim petition and three appellants- claimants viz. the widow of the deceased as well as two son of the deceased, came on record as claimants before the Tribunal in the aforementioned claim petition and claimed in all Rs.3,00,000/- by way of compensation.
3. Mr. N.K. Thakker learned advocate for the appellants-original claimants, at the outset, assailed the impugned judgment and award rendered by the Tribunal on the count of apportionment of negligence. Mr. Thakker learned advocate submitted that the Tribunal erred in coming to the conclusion that the deceased driver of the Maruti Car, was negligent to the extent of 80% and the opponent no.1 driver of the Mazda Tempo, was negligent to the extent of 20%. Mr. Thakker learned advocate read over the FIR, lodged by the opponent no.1, the driver of the Tempo and submitted that to save his skin, the opponent no.1 driver made false averments in the FIR and attributed negligence to the deceased driver of the Maruti Car. He commented that even the panchnama of the scene of the accident, would lead us to nowhere. In the panchnama, what is stated, is nothing but the statement of opponent no.1 driver of the Tempo. Mr. Thakker relied upon the evidence of eye-witness Shaktidan Gadhavi examined before the Tribunal at Exh.60 and submitted that, even as per the version of eye-witness, the accident occurred because of rash and negligent driving of the Tempo by the opponent no.1 driver. It is submitted that the Tribunal erred in not relying upon the evidence of this eye-witness and wrongly branded him as got-up witness. It is, therefore, submitted that the Tribunal erred in coming to the conclusion that the Maruti Car driver was 80% contributorily negligent. Mr. Thakker learned advocate submitted that as a matter of fact, the opponent no.1 driver of the Tempo, was 100% negligent, but atleast his negligence may be apportioned to 80% and 20% contributory negligence may be attributed to deceased driver of the Maruti Car.
3.1 Coming to the question of quantum of compensation, Mr. Thakker learned advocate for the appellants-claimants submitted that however the claimants failed to prove that there was any nexus between the accidental injury and subsequent death of the deceased. Therefore, Mr. Thakker learned advocate submitted that the instant case is required to be considered as an injury case, wherein, during the pendency of said claim case, the injured claimant met with natural death. However, he submitted that the Tribunal erred in coming to the conclusion that the monthly income of the deceased was Rs.3,000/-. It is submitted that considering the evidence of widow of the deceased so also considering the documentary evidence, tendered by the claimants in the aforementioned claim case, regarding the Partnership Firm, wherein, the deceased was named as one of the Partners, earning 33% share in the Firm, the Tribunal should have assessed monthly income of the deceased at Rs.12,500/-, but in the memo of appeal, it is pleaded that his monthly income should have been assessed atleast at Rs.8,000/-. Mr. Thakker learned advocate for the appellants submitted that though the medical disability assessed by the Medical Officer was 19%, but the Tribunal erred in coming to the conclusion that the disability affecting the earning capacity of the deceased, was 8%. Mr. Thakker learned advocate, therefore, submitted that on the basis of Rs.8,000/- per month income of the deceased, appropriate amount should have been awarded by the Tribunal.
3.2 Mr. Thakker learned advocate vehemently submitted that the Tribunal erred in not awarding any amount of compensation under the head of pain, shock and suffering. He submitted that even if, this Court comes to the conclusion that the subsequent death of the deceased was natural death, yet, the claimants are entitled to recover compensation under the head of pain, shock and suffering. Decision of this Court in the case of 'Mithun Kalikrishna Banerjee Vs. Sitanath Vishwas Bangali & Ors.' reported in 2007 (1) GLR 354 is relied upon, wherein, under the head of pain, shock and suffering, this Court awarded Rs.50,000/-
3.3 Mr. Thakker learned advocate for the appellants further submitted that there is evidence on record that the deceased was required to undergo treatment as an indoor patient for one month and thereafter, he had to take rest for the period of one year, considering the nature of serious bodily injuries, sustained by him. He submitted that atleast for the period of one year, the Tribunal should have granted the compensation, considering his full monthly income.
3.4 Mr. Thakker learned advocate for the appellants contended that the Tribunal relied upon the case of 'Gujarat State Road Transport Corporation Vs. Amishkumar Vinodbhai & Ors.' reported in 1996 (3) GLR 212, but the said decision shall not be helpful considering the facts of the instant case. It is submitted that even in the said decision, this Court came to the conclusion that despite the fact that the injured claimant, subsequently, met with natural death, yet, the right to sue survives and the claim regarding loss caused to the estate, would include several items such as medical expenses, miscellaneous expenses, actual loss of income from the date of injuries till the death of injures etc. Mr. Thakker learned advocate submitted that the word used by this Court in this case "etc." would include pain, shock and suffering.
3.5 Mr. Thakker learned advocate for the appellants ultimately requested that the instant appeal may be allowed and the impugned judgment and award passed by the Tribunal, may be appropriately enhanced.
4. None appeared for the respondent nos.1 & 2 viz. the driver and owner of the Tempo. However, Mr.
M.J. Shelat learned advocate for the respondent no.3 - Oriental Insurance Company supported the impugned judgment and award rendered by the Tribunal and submitted that the Tribunal, in the facts and circumstances of the case, rightly relied upon the Amishkumar Vinodbhai's case (Supra). Relying upon this decision, the Tribunal rightly awarded compensation under the head of medical expenses, attendant charges, transportation charges, special diet charges and economic loss. Mr. Shelat learned advocate for the respondent no.3 submitted that as a matter of fact, even to substantiate the case of the claimants that the deceased was earning Rs.12,500/- p.m. or atleast Rs.8,000/- p.m., no documentary evidence worth the name is produced. It is submitted that the claimants relied upon the Partnership Deed, but the Partnership Deed itself, is not a proof of income. If, at all, the deceased was earning Rs.12,500/- p.m., as his share in the Partnership Firm in the year 1994, when the accident occurred, the claimants could have produced reliable evidence like the Income Tax Return etc. The claimants produced Khatawahi of some different Firms viz. M/s. N.R. Patel & Co., but even no such Khatawahi and books of accounts from the Partnership Firm viz. Sarvodaya Auto Center came to be produced. Therefore, in absence of any evidence, even monthly income at Rs.3,000/- assessed by the Tribunal is otherwise on higher side and therefore, no increase is required.
4.1 Mr. Shelat learned advocate for the respondent no.3- Insurance Company further submitted that considering the ratio laid down in Amishkumar Vinodbhai's case (Supra), the claimants are not at all entitled to recover any amount of compensation under the head of pain, shock and suffering and he relied upon unreported decision of this Court dated 26.12.2011 in the case of 'New India Assurance Co. Ltd Vs. Manjuben Devjibhai & Ors. in First Appeal No.5910/1999, wherein, relying upon the Amishkumar Vinodbhai's case (Supra), this Court partly allowed the appeal, filed by the Insurance Company and the claim amount was reduced to Rs.25,000/- from Rs.1,40,000/- awarded by the Tribunal.
4.2 Mr. Shelat learned advocate for the respondent no.3- Insurance Company, therefore, submitted that the appeal may be dismissed.
5. I have considered the submissions advanced on behalf of both the sides in context with the record and proceedings.
6. First and foremost aspect, which is required to be considered, pertains to the apportionment of the negligence arrived at by the Tribunal. There is no dispute that two vehicles viz. Maruti Car driven by the deceased so also the Tempo driven by the opponent no.1- driver came from the opposite directions and there was head on collision. It also transpires that it was the opponent no.1- driver of the Tempo, who registered the FIR against the driver of the Maruti Car viz. the deceased. In his FIR, the opponent no.1 narrated the incident that when his Tempo reached near the place of incident, one Maruti Car came from the opposite direction and the said Car attempted to overtake one on going vehicle and the Car came on the wrong side of the road and dashed with the Tempo. Considering the panchnama of the scene of the accident Exh.50, it has been clearly stated by the panchas that the Car dashed with the Tempo on wrong side and both the vehicles were found lying adjacent to each-other. Both the vehicles were damaged. However, the damage assessed to the Car was to the extent of Rs.75,000/- and that of the Tempo was assessed at Rs.25,000/-. It is pertinent to note that both these police papers viz. FIR and the Panchnama, are produced by the claimants and therefore, it can safely be presumed that the claimants relied upon these police papers.
7. Before the Tribunal, the claimants examined one witness Shaktidan Gadhavi at Exh.60, who claimed himself to be an eye-witness to the incident and according to his evidence, at the time of accident, he was proceeding on his Motorcycle and when he reached near the place of accident, at that time, a Tempo came from the opposite direction with full speed and it was the driver of the Tempo, who attempted to overtake one on going vehicle and dashed with the Maruti Car on wrong side of the road. The Tribunal in the impugned judgment and award examined and scrutinized the evidence of this so-called eye-witness. In the cross- examination of this witness, he admitted that at the time of accident or even thereafter, he was not knowing the deceased or his family members. This witness claimed that it was he, who accompanied the driver of the Maruti Car to the hospital, but in support thereof, no medical papers are produced showing that the driver of the Maruti Car was brought to the hospital by this witness. This witness further admitted in his cross-examination that in connection with the FIR, his police statement was not recorded nor he was called as a witness in any Criminal Court. He further admitted that even after the accident, he did not send any letter to the family members of the deceased, showing his address and the fact that, he had witnessed the incident. He further admitted in his cross-examination that he did not own any Motorbike. It is further pertinent to note that the accident occurred on 09.01.1994 and before the Tribunal, his evidence was recorded after 7 years viz. on dated 08.08.2001, yet, he was able to remember registration numbers of both the vehicles. There is nothing on record that how and on what basis, the claimant could locate this witness for the purpose of examining him before the Tribunal. In above view of the matter, this Court is of the opinion that the Tribunal rightly discarded the evidence of this witness Shaktidan Gadhavi Exh.60.
8. The Tribunal then relying upon the police papers viz. FIR and Panchnama of the scene of the occurrence, produced by the claimants came to the conclusion that the driver of the Maruti Car was 80% negligent and the opponent no.1- driver of the Tempo was 20% negligent. This Court is of the opinion that re-examining and re-appreciating the evidence on record, the Tribunal cannot be said to have committed any error, while coming to said conclusion.
9. As stated above, the Tribunal awarded compensation under the head of loss caused to the estate, since the accident occurred in the year 1994 and the deceased died in the year 1999. Even the widow of the deceased Umiyaben, who was examined at Exh.47, admitted in her examination-in-chief itself that her husband died because of some ailment. Under such circumstances, the claimants failed to establish nexus between the accidental injuries, sustained by the deceased in the year 1994 and his subsequent death in the year 1999.
10. In above view of the matter, considering the Amishkumar Vinodbhai's case (Supra), almost identical was the situation, wherein, the injured claimant during the pendency of the claim petition, met with natural death. This Court in the said decision examined relevant Provisions of Indian Succession Act so also of Fatal Accident Act and ultimately, came to the conclusion that even after the death of the injured claimant, the petition does not abate and the right to sue survives to his heirs and legal representatives and the claim regarding loss caused to the estate survives, which would include several items such as medical expenses, miscellaneous expenses, actual loss of income from the date of injuries till the death of injured etc. However, Mr. Thakker learned advocate for the appellants- claimants submitted that the Tribunal erred in not awarding any amount of compensation under the head of pain, shock and suffering, but considering the ratio laid down in Amishkumar Vinodbhai's case (Supra), it can safely be said that the claimants viz. heirs of the injured claimant cannot recover any amount under the head of pain, shock and suffering, as it does not fall within the category of loss cause to the estate.
10.1 Considering the unreported decision of this Court, relied upon on behalf of respondent no.3- Insurance Company viz. Oral Judgment dated 26.12.2011 rendered in the case of 'New India Assurance Co. Ltd Vs. Manjuben Devjibhai in First Appeal No.5910/1999, it transpires that, relying upon the decision in Amishkumar Vinodbhai's case (Supra), this Court partly allowed the appeal, filed by the Insurance Company and award of Rs.1,40,000/- rendered by the concerned Claim Tribunal, was reduced to the tune of Rs.25,000/-.
11. In above view of the matter, this Court is of the opinion that the Tribunal rightly did not grant any amount of compensation under the head of pain, shock and suffering to the claimants, who are heirs of deceased injured claimant.
12. It has been submitted on behalf of the appellants that the Tribunal erred in fixing the monthly income of the deceased at Rs.3,000/-. In the claim petition as well as in the evidence of widow of the deceased, it was claimed that the deceased used to earn Rs.12,500/- p.m. towards his share in Partnership Firm. The claimants produced the document like
the claimants did not produce any further evidence showing the actual income of the deceased viz. any Income Tax Return, if, at all, the deceased was paying the income tax, when, it is claimed that the deceased was earning Rs.12,500/- p.m. in the year 1994 or any books of accounts etc. of the Firm itself, wherein, the injured deceased was the Partner. In above view of the matter, this Court is of the opinion that the Tribunal did not commit any error, while coming to the conclusion that the monthly income of the injured deceased can be assessed at Rs.3,000/- p.m. As per the medical evidence on record, the bodily disability assessed by the medical officer was 19%, but considering the deposition of claimant Umiyaben, in her examination-in-chief, she admitted that the claimants have no objection, if, the disability of the body as a whole, is counted at 8%. The Tribunal, therefore, did not err in coming to the conclusion that the permanent partial disability affecting the earning capacity of the injured deceased, was 8%. Accordingly, the monthly loss to the estate was Rs.240/-. The injured deceased claimant sustained injury in the accident on dated 09.01.1994 and he died by natural death on 26.07.1999. Thus, according to the Tribunal, after the accident, the injured deceased claimant survived for 66.1/2 months. Accordingly, the economic loss was assessed at Rs.15,960/- [Rs.240/- X 66.1/2 months]. In otherwards, the Tribunal awarded Rs.15,960/- under the head of economic loss, considering the period of 66.1/2 months viz. from dated 09.01.1994 (the date of the actual accident) to dated 26.07.1999 ( the date of death of the injured deceased claimant). Mr. Thakker learned advocate for the appellants-claimants, at the outset, submitted that there is the evidence that the deceased remained indoor patient for one month and thereafter, had to take rest at his home for about one year and he could not attend his work, practically, for the period of one year and for the period of one year, the Tribunal should have awarded the compensation, considering the full monthly income. However, considering the evidence of claimant- Umiyaben, she admitted that her husband was indoor patient in Bhailal Amin General Hospital, Vadodara from 08.04.1994 to 20.04.1994. Moreover, no medical papers are produced showing atleast one month's hospitalization. Further more, no cogent evidence is produced to show that even after the discharge from the hospital, the injured deceased claimant had to take rest at his home for one year or atleast during the period of his actual hospitalization or during the period of his rest at home, he did not receive any income from the Partnership Firm.
13. It is further pertinent to note that despite the fact that while awarding reasonable amount of compensation under the head of attendant charges, transportation charges and special diet charges, there was no specific evidence regarding the expenses, but the Tribunal awarded in all Rs.13,000/- under these three heads. In above view of the matter, it cannot be said that the Tribunal erred in awarding Rs.15,960/- towards the economic loss. On behalf of appellants, it is submitted that the Tribunal should have awarded atleast Rs.50,000/- for medical expenses. In the impugned judgment and award, the Tribunal awarded Rs.38,500/- by way of compensation under the head of medical expenses and the said amount came to be awarded on the basis of medical bills produced by the appellants collectively vide Exh.48. Under such circumstances, it cannot be said that the Tribunal erred in awarding Rs.38,500/-. It is further pertinent to note that as stated above, towards the attendant charges, transportation charges and special diet, the Tribunal has awarded separate amount to the appellants-claimants.
14. Mr. Thakker learned advocate for the appellants- claimants relied upon the case of Mithun Kalikrishna Banerjee's case (Supra), wherein, this Court awarded Rs.50,000/- to the injured claimant by way of compensation under the head of pain, shock and suffering. Suffice it to say that in the facts and circumstances of the said decision, the injured claimant did not die during the pendency of his claim petition. As stated above, the facts and circumstances in the instant case, are totally different. Thus, Mithun Kalikrishna Banerjee's case (Supra) is in noway helpful to the appellants-claimant.
15. Seen in the above context, this Court is of the opinion that the appeal lacks merits and deserves dismissal.
16. For the foregoing reasons, the appeal stands dismissed. There shall be no order as to costs.
abv/g (J.C.UPADHYAYA, J)