Gujarat High Court
Samu Tibhu Yadav vs Chaudhary Enterprise on 27 April, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/3215/2017 JUDGMENT DATED: 27/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3215 of 2017
With
R/FIRST APPEAL NO. 542 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 or any order made thereunder ?
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SAMU TIBHU YADAV & 5 other(s)
Versus
CHAUDHARY ENTERPRISE & 3 other(s)
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Appearance:
MR VILAV K BHATIA(5338) for the Appellant(s) No. 1,2,3,4,5,6
for the Defendant(s) No. 3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/04/2022
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022
1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 30.09.2016 passed by the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) at Mirzapur in M.A.C.P. No.1486 of 2013, the original claimants have preferred First Appeal No.3215 of 2017, whereas, the appellant - New India Assurance Co. Ltd. has preferred First Appeal No.542 of 2017 under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
2. Both the appeals are tagged together and are heard together and the same are disposed of by this common judgment and order.
3. Following facts emerge from the record of these appeals. 3.1 That the accident took place on 11.07.2013 near Ravlipur Patia on National Highway No.8 i.e. between Ahmedabad to Vadodara. It is the case of the claimants that the deceased Ramavadh Samu was driving Oil Tanker bearing registration no.GJ-1-AT-7711 from Ahmedabad to Vadodara. The record indicates that when the Tanker reached at the scene of Page 2 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 occurrence on highway, a Crane bearing registration no.MH-43- 0952 was lying on the road without any light or reflector or indicator and because of which the Oil Tanker dashed behind the Crane. The record indicates that the impact of the same, the fire broke out in the Oil Tanker and due to which the deceased sustained burn injuries and died on account of the same. An FIR was lodged by the representative of the Crane at Exhibit 23 and the present claim petition was filed by the claimants under Section 166 of the Act before the Tribunal and claimed compensation of Rs.25,00,000/-. It is the case of the claimants that the deceased was working as driver and was earning Rs.5,000/- as salary. The claimants relied upon the oral depositions of the wife of the deceased Sitadevi at Exhibit 27 and one Upendranath Yadav at Exhibit 31. The claimants also relied upon the documentary evidence such as FIR at Exhibit 23, panchnama of the place of occurrence at Exhibit 24, inquest panchnama at Exhibit 25, P.M. report at Exhibit 26 and the insurance policy of both the vehicles at Exhibit 35 and Exhibit 43. The Tribunal, after appreciating the evidence on record, came to the conclusion that the driver of the Crane was solely negligent for the accident as the Crane was parked without any light, Page 3 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 indicator or sign. As far as the quantum is concerned, the Tribunal assessed the income of the deceased at Rs.4,000/- per month and also considered increase in income by way of prospective income to the tune of 30% and after deducting 1/4th personal expenses and applying multiplier of 14, awarded a sum of Rs.6,55,200/- as compensation under the head of future loss of income. The Tribunal further awarded a sum of Rs.50,000/- as loss of estate and loss of consortium and Rs.10,000/- as funeral expenses and while partly allowing the claim petition, the Tribunal awarded total compensation of Rs.7,15,200/- with 9% interest from the date of claim petition till its realization. As observed hereinabove, the claimants have preferred appeal for enhancement of compensation, whereas, the appellant - Insurance Company of the Crane has filed the appeal on the ground of negligent.
4. Heard Mr.Vilav Bhatia, learned counsel for the claimants, Mr.Sunil Parikh, learned counsel for the insurer of Tanker i.e. National Insurance Co. Ltd and Mr.Maulik Shelat, learned counsel for the appellant - New India Assurance Co. Ltd and perused the photo copy of the FIR at Exhibit 23 and panchnama Page 4 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 at Exhibit 24. Such copies are taken on record.
5. Mr.Vilav Bhatia, learned counsel for the claimants has submitted that the Tribunal has committed an error in considering the income of the deceased at Rs.4,000/- per month. He has contended that even if in absence of any evidence, considering the minimum wages standard prevailing on the date of the accident, the deceased has skilled worker and considering the deceased as skilled worker, the income would be at least Rs.5,000/- per month. Mr.Bhatia, learned counsel further contended that the claimants would also be entitled to consortium filial to the parental as well as spousal consortium. He contended that as far as the negligence is concerned, the Tribunal has rightly considered the evidence on record and the same does not require any modification. On the aforesaid grounds, Mr.Bhatia, learned counsel contended that the appeal filed by the claimants deserves to be allowed and the appeal filed by the Insurance Company deserves to be dismissed.
6. Mr.Maulik Shelat, learned counsel for the appellant - New India Assurance Co. Ltd has taken this Court through the FIR at Page 5 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 Exhibit 23 and the panchnama at Exhibit 24. He contended that though the Crane was parked on the road without any light or reflector or indicator, it has come on record that the ample care was to take by the driver of the Crane to avoid any such accident. While referring to the charge-sheet, Mr.Shelat, learned counsel contended that such charge-sheet was filed against the driver of the Tanker. He has referred to the panchnama at Exhibit 24 and contended that no break mark was found at the place of occurrence which indicates that the Tanker was driven in such an excessive speed before it dashed with the Crane. On the aforesaid ground, Mr.Shelat, learned counsel contended that the Tribunal has committed an error in coming to the conclusion that the driver of the Crane was solely negligent for the accident in question. So far as the quantum is concerned, Mr.Shelat, learned counsel contended that in absence of any evidence on record, the Tribunal has not committed any error in determining the income of the deceased at Rs.4,000/- per month. He contended that as far as the consortium is concerned, this Court may pass appropriate order keeping in mind the ratio laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Page 6 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 Ram and others reported in (2018) 18 SCC 130, United India Insurance Company Limited Vs. Satinder Kaur alias Satwinder Kaur and others reported in AIR 2020 SC 3076 and New India Assurance Co. Ltd. Vs. Smt. Somwati and others, reported in (2020) 9 SCC 644. He contended that the appeal filed by the claimants does not require any consideration and the appeal filed by the appellant - Insurance Company deserves to be allowed.
7. Mr.Sunil Parikh, learned counsel appearing for respondent - National Insurance Co. Ltd contended that the Tribunal has rightly appreciated the evidence on record and has factually considered the aspects that the Crane was being parked may be on the left side of the road without any light, reflector or indicator, that too, at the midnight. According to him, the accident occurred on the part of the Crane parked on the road. He contended that the Tribunal has not committed any error in coming to the conclusion that the driver of the Crane was solely negligent for the accident in question. Mr.Parikh, learned counsel contended that as far as the quantum is concerned, the Tribunal has correctly appreciated the evidence on record and no Page 7 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 modification is required. According to Mr.Parikh, learned counsel, both the appeals being meritless deserve to be dismissed.
8. No other or further submissions, grounds or contentions have been raised by the learned counsel appearing for the parties.
9. Upon hearing learned counsel appearing for the parties, the following questions arise in these appeals for determination by this Court.
(a) Whether the Tribunal has committed any error in coming to the conclusion that the driver of the Crane was solely negligent?
(b) Whether the Tribunal has committed any error in determining the income of the deceased at Rs.4,000/- per month in absence of any evidence or not?
(c) Whether the original claimants are entitled for consortium or not?
10. At this juncture, it would be appropriate to note that as far Page 8 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 as the policy at Exhibit 43 issued by the National Insurance Company Limited i.e. insurer of the Tanker is concerned, the risk of the driver is covered as additional premium taken by the said Insurance Company and in light of the decision of the Full Bench in the case of Valiben Laxmanbhai Thakore (Koli) Wd/o. Late Laxmanbhai Ramsingbhai Thakore (Koli) and others Vs. Kandla Dock Labour Board and Another reported in 2021 (4) GLH 77, the insurance company would be liable for the same.
11. As far as the negligence is concerned, it would be appropriate to refer to the FIR at Exhibit 23 and panchnama at Exhibit 24. On bare reading of these piece of evidence on record, it clearly transpires that the Crane was being parked on the road by the driver at midnight hours, that too, without any light, reflector or indicator. However, the panchnama at Exhibit 24 and the FIR at Exhibit 23, which was lodged by the representative of the Crane clearly speaks of the fact that the Tanker dashed behind the back of the Crane in such a manner and because of the fire broke out, the deceased succumbed to burn injuries. It also borne out from the panchnama at Exhibit 24 that no break Page 9 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 marks are found on the road. Upon re-appreciation of the evidence, it transpires that the Tanker also was being driven by the driver in an excessive speed and in such a manner the driver could not notice stationary Crane in midnight hours. However, upon re-appreciation of the evidence on record, this Court is of the opinion that the Tribunal has committed an error in coming to the conclusion that the driver of the Tanker was solely negligent. In the facts of the present case, the drivers of both the vehicles i.e. Tanker and the Crane were held to be contributory negligent to the extent of 75% and 25% i.e. driver of the Crane was negligent to the extent of 75%, whereas, the driver of the Tanker was negligent to the extent of 25%.
12. As far as the quantum is concerned, the Tribunal has assessed the income of the deceased at Rs.4,000/- per month in absence of any evidence. Even if the minimum wages standard prevailing on the date of the accident is considered, the salary would be at least Rs.5,000/- as claimed by the claimants. We, therefore, determine the income of the deceased at Rs.5,000/- per month. Having come to the aforesaid conclusion, the claimants would be entitled to the future loss of dependency as Page 10 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 under:
Rs.5,000/- per month + Rs.1,250 (25% rise) = Rs.6,250/- - Rs.1,562/- (1/4th personal expenses) = Rs.4,688/- x 12 = Rs.56,256/- x 14 (multiplier) = Rs.7,87,584/-.
13. The record indicates that the claimants before this Court are wife, two children along with two major daughters. Following the ratio laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra), Satinder Kaur alias Satwinder Kaur (supra) and Smt. Somwati (supra), the claimants would be entitled to the consortium of Rs.40,000/- each. Over-and-above the same, the claimants would be entitled to Rs.30,000/- under the head of loss of estate and funeral expenses. Thus, the claimants would be entitled to total compensation of Rs.9,77,584/-. As the Tribunal has granted compensation of Rs.7,15,200/-, the claimants would be entitled to additional compensation of Rs.2,62,384/- [Rs.9,77,584/- - Rs.7,15,200/-]. However, such additional amount shall bare interest at the rate of 6% from the date of filing of the petition till its realization. Thus, the questions raised in these Page 11 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022 C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 appeals are answered accordingly.
14. In view of the above, First Appeal No.3215 of 2017 is partly allowed and First Appeal No.542 of 2017 is also partly allowed. Both the drivers of the vehicle i.e. Tanker and Crane involved in the accident are held to be contributory negligent to the extent of 75% and 25%. The claimants would be entitled to the additional amount of compensation of Rs.2,62,384/- along with the interest at the rate of 6% per annum from the date of filing of the claim petition till its realization. The respondent - Insurance Company i.e. insurer of Tanker bearing registration no.GJ-1-AT- 7711 is directed to deposit 25% of the total amount of award with the Tribunal within a period of eight weeks from the date of certified copy of this judgment and order. The appellant - New India Assurance Co. Ltd shall deposit additional amount of award with interest at the rate of 6% per annum and proportionate costs with the Tribunal within a period of eight weeks from the date of certified copy of this judgment and order. After depositing the share of the additional amount of award by the appellant - New India Assurance Co. Ltd, the Tribunal shall refund additional amount, if any, to the National Insurance Co. Page 12 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022
C/FA/3215/2017 JUDGMENT DATED: 27/04/2022 Ltd of the Crane. There shall be no order as to costs.
15. The connected civil application/s, if any, shall stand disposed of.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 13 of 13 Downloaded on : Wed May 04 20:09:18 IST 2022