Gujarat High Court
Divyaben Pramodbhai Ganatra L.H. Of ... vs Driver on 1 August, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1872/2019 JUDGMENT DATED: 01/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1872 of 2019
With
R/FIRST APPEAL NO. 1458 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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DIVYABEN PRAMODBHAI GANATRA L.H. OF DECD.
JATINKUMAR PRAMODBHAI GANATRA & 2 other(s)
Versus
DRIVER & 2 other(s)
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 2
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NEUTRAL CITATION
C/FA/1872/2019 JUDGMENT DATED: 01/08/2023
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/08/2023
ORAL JUDGMENT
1. Legal heirs of deceased Jatinkumar Pramodbhai Ganatra have challenged the judgment and award dated 20.07.2017 passed by the learned Motor Accident Claims Tribunal (Main), Morbi (Tribunal) in Motor Accident Claim Petition No. 1687 of 1999, renumbered as Motor Accident Claim Petition No. 158 of 2013 (claim petition). The appellants - claimants have raised the ground inter alia stating that the learned Tribunal has erred in holding the deceased negligent to the extent of 40% while, according to the facts of the case, the learned Tribunal ought to have considered that the Crane was in the middle of the road, without any indicator / reflector and without following the traffic rules.
2. Since both the appeals arise from the same judgment and award, one filed by the claimants and another by the insurance company, both are decided by this common judgment. Page 2 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023
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3. Mr. Sheth, learned advocate for the appellants in First Appeal No. 1872 of 2019 submitted that the FIR was filed against the driver of the Crane and further, the Panchnama, read with the FIR, clearly indicates that the Crane was on the middle of the road, further the opponent has not examined the driver of the Crane to prove the negligence aspect and thus, learned advocate Mr. Sheth stated that the learned Tribunal has erred in fastening 40% negligence on part of the deceased.
4. While countering the argument, Mr. H. G. Mazmudar, learned advocate for the appellant in First Appeal No. 1458 of 2018, submitted that as per the facts of the case, the deceased was driving the scooter beyond permissible sitting capacity of the vehicle and when the accident had occurred, there were two pillion riders on the scooter, which contributed to the negligence and thus, stated that the learned Tribunal has rightly assessed the negligence and attributed 40% negligence relying on the evidence on record, and further stated that the learned Tribunal has erred by not deducting the amount under personal expenses as one half.
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5. The facts of the case, as could be drawn from the impugned judgment and award, are that on 04.07.1999, the deceased was going towards Morbi along with his two friends on a scooter and dashed with the stationary Crane bearing registration No. MRT-8787. The driver of the Crane had allegedly parked the Crane in the middle of the road, without any indicator or reflector, as a result, Jatinkumar Pramodbhai Ganatra sustained fatal injuries and died. 5.1 The claimant No.1, the mother of the deceased, had produced her examination-in-chief at exh. 19 to state that at the time of accident, her son - Jatin, along with his friends - Chetan and Hitesh, was going on scooter and stated that, her son had studied upto old SSC and as per his Driving Licence, his date of birth was 07.08.1979. Her unmarried son was managing the firms namely Ganatra Brothers and Navinchandra Harilal. 5.2 The FIR was produced on record during the trial at exh. 7. The complaint was lodged by Dharshibhai Bhagvanjibhai, father of Chetan, a pillion rider. As per the observations made by the learned Page 4 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined Tribunal from the FIR and the Panchnama, the Crane was parked in the middle of the road, without following the traffic rules. The accident had occurred on the Morbi-Wankaner National Highway. A Blue coloured Bajaj Super motorcycle, without any number plate, was lying in damaged condition; blood stains were found on the road and the Crane bearing registration No. MRT-8787 was found lying on the spot and rear lights of the Crane were not in working condition.
5.3 Though the driver of the Crane was made a party - opponent and was served, he had preferred not to appear before the Tribunal. The learned Tribunal has observed that the accident had occurred on a straight road and the FIR is against the driver of the Crane, and has been rightly observed that the driver of the Crane would be the best person, who could have thrown light on the point of negligence and the learned Tribunal, thus, came to the conclusion of drawing adverse inference against him but at the same time, by the testimony of the claimant No. 1, the learned Tribunal observed that the deceased was with two persons - Chetan and Hitesh, who were Page 5 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined pillion riders and as three persons were found on the two wheeler and the scooter dashed on the rear side of the stationary vehicle, the Tribunal fastened negligence even on the deceased. Yet, at the same time, it was also noticed that the Crane was parked in the middle of the road, without any rear reflector / indicator or the parking lights on the dark night, which was the cause of the accident. 5.4 In the case of Mohammed Siddique and Another v. National Insurance Company Limited and Others, (2020) 3 SCC 57, the Hon'ble Supreme Court has held that though deceased was riding pillion on a motorcycle along with driver and another beyond the permissible limit, may not, by itself, without anything more, make him guilty of contributory negligence, unless it is established that it contributed either to the accident or to the impact of accident upon victim.
5.5 Thus, in the case on hand, the fact that the deceased was travelling with two pillion riders, would not be a ground to conclude that he was driving in rash and negligent manner. Had the Crane not Page 6 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined parked on the middle of the road in the night hours, the accident would not have taken place or the lights and reflectors could have given the signal to the driver to avert the accident. However, the deceased was also required to be vigilant since he was driving with two pillion riders, the deceased as driver of the motorcycle, should have been more careful during night hours, mindful that he had the safety of pillion riders in his hands., however, the assessment of 40% negligence of the deceased - scooterist is on a higher side, this Court considers that the larger negligence is on the part of the Crane driver, who had, without any precautions to be directed to ongoing vehicles, had parked the Crane in the middle of the road and hence, considering 80% negligence of the Crane driver, 20% negligence is attributed to the deceased motorcyclist.
5.6 The learned Tribunal has considered income of the deceased as Rs.4,000/- per month, as he was working as a Manager in the Firms namely Ganatra Brothers and Navinchandra Harilal and the Salary Certificates were produced at exh. 21 and 22. True copies of the books of accounts were produced at exh. 31 to 37, wherein, the Page 7 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined salary paid to the deceased for the year 1998-1999 is reflected. The learned Tribunal, has noticed that from the evidence on record, both the firms were paying him Rs.2,000/- per month and further, the Income Tax Returns, Form No. 2D Saral of the deceased of the Financial Year 1998-1999 vide exh. 17 proved his gross annual income as Rs.48,000/-. Thus, the Tribunal has rightly considered monthly income of the deceased as Rs.4,000/- at the time of the accident.
5.7 50% of the prospective rise in income has been considered relying on the decision in National Insurance Company Limited v. Pranay Sethi & Ors., (2017) 16 SCC 680. The deceased was 20 years old at the time of the accident and since, he was in permanent job and was below the age of 40, relying on a decision in Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., (2009) 6 SCC 121, 50% prospective rise in income has rightly been considered, however, the learned Tribunal has failed to appreciate that the deceased was unmarried at the time of his death since a bachelor, half of the income has to be deducted towards his personal Page 8 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined expenses. Hence, instead of 1/3rd, it is modified to 1/2. 5.8 The learned Tribunal has considered Rs.1,10,000/- under the head of loss of love and affection, funeral expenses and last rites, however, it is to be put on record that as rule of thumb, under the head of loss to estate and funeral charges, Rs.15,000/- each is to be granted. The consortium loss has to be provided in accordance with the decision of decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130. Hence, the claimants - parents would be entitled to Rs.40,000/- each and accordingly, in total Rs.80,000/- towards the loss of consortium.
5.9 The income of the deceased was Rs.4,000/- per month, and adding 50% towards prospective rise in income, it would come to Rs.6,000/-. Half of the amount is required to be deducted towards personal expenses and applying the multiplier of 18, the dependency loss would come to Rs.6,48,000/- (Rs.4,000 + 50% - 1/2 x 12 x 18). In United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Page 9 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined Kaur with Satinder Kaur @ Satwinder Kaur v. United India Insurance Co. Ltd., AIR 2020 SC 3076 : 2020 (8) Scale 482, it was directed to the Tribunals and the High Courts to award compensation for loss of consortium observing that there is no justification to award compensation towards loss of love and affection as a separate head. Accordingly, the computation of compensation would be as under.
Head As per Tribunal Modified
Dependency Loss 8,74,000/- 6,48,000/-
Loss of Consortium --- 80,000/-
Loss of Estate --- 15,000/-
Funeral Expenses 10,000/- 15,000/-
Loss of love and affection, 1,00,000/- ---
funeral charges, last rites
Total 9,74,000/- 7,58,000/-
Less: 20% negligence 3,89,600/- 1,51,600/-
(40%) (20%)
Compensation 5,84,400/- 6,06,400/-
Difference 22,000/-
6. The appeals are, accordingly, allowed in part. The impugned judgment and award is modified to the aforesaid extent. The difference amount shall be deposited within a period of 08 (eight) Page 10 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023 NEUTRAL CITATION C/FA/1872/2019 JUDGMENT DATED: 01/08/2023 undefined weeks. The appellants - claimants shall be entitled to interest at the rate of 7.5% per annum on such enhanced amount of compensation, from the date of petition i.e. 18.12.1999 till realization. The Tribunal is directed to disburse total amount to the claimants in proportion as per the award. R&P, if received, be sent back forthwith.
[ Gita Gopi, J. ] hiren /PC-26 Page 11 of 11 Downloaded on : Sat Sep 16 23:49:08 IST 2023