Gujarat High Court
Kangar Shamgar Gosai Shamgar Gosai vs Bhajanlal Prabhudayal Chhabra on 22 April, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/4930/2006 JUDGMENT DATED: 22/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4930 of 2006
With
R/FIRST APPEAL NO. 2251 of 2016
With
R/FIRST APPEAL NO. 926 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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KANGAR SHAMGAR GOSAI & ORS.
Versus
BHAJANLAL PRABHUDAYAL CHHABRA & ORS.
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
for the Defendant(s) No. 1
(MR PV NANAVATI)(509) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
SHARMISHTA A DAVE(8735) for the Defendant(s) No. 2
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NEUTRAL CITATION
C/FA/4930/2006 JUDGMENT DATED: 22/04/2024
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/04/2024
ORAL JUDGMENT
Order in First Appeal No.4930 of 2006 and First Appeal No.926 of 2007.
1. First Appeal No.4930 of 2006 is filed by the claimant for enhancement of compensation amount.
1.1 First Appeal No.926 of 2007 is filed by Insurance Company of Truck No.RNC-6411, impugning the judgment on the ground that 100% negligence attributed to the driver of the said Truck, which is not sustained with the evidence on record. 1.2 While, First Appeal No.2251 of 2016 is filed by the Insurance Company of Truck No.GJ-10- T-0357 on the ground that the claimants are heirs of deceased - Kangar Shamgar Gosai, who have also secured the judgment under Workmen's Compensation Page 2 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined Act from Ex officio Commissioner, Workmen's compensation Act, Labour Court Jamnagar after the judgment and award rendered in the impugned MACP No.880 of 1997.
2. The appeals are directed against the judgment dated 15.05.2006 passed by Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP No.880 of 1997.
3. The facts of the case, as was noted by the Tribunal suggests that deceased - Kangar Shamgar Gosai was Truck driver of Truck No.GJ-10- T-0357, on 12.12.1996 he along with his cleaner Kantibhai Harjibhai Patel. They in the truck loaded with bricks, were going from Khambhaliya to Biyavar. When they reached near village Amirgadh Palanpur at about 8.30 p.m., Truck No.RNC-6411 came from Abu Road. It was alleged that the driver of Truck No.RNC-6411 was driving the vehicle in rash and negligent manner and Page 3 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined collided with Truck of the deceased. As a result the driver of Truck No. GJ-10-T-0357 died. The FIR was lodged by the cleaner against the driver of Truck No.RNC-6411.
4. Ms. Sharmishta A.Dave, learned advocate for the Insurance Company submitted that the Tribunal has not appreciated the evidence on record in accordance to the facts pleaded. The F.I.R. and the panchnama would not give a correct picture of the actual accident, as the FIR has been lodged by the cleaner, who would be an interested party; and further panchnama has been drawn two days after the accident, hence, would not disclose the actual possession of the vehicle; however, Advocate Ms. Dave submitted that the panchnama if perused, then both the vehicles are required to be held negligent for the accident. The driver of Truck No.GJ-10-T-0357 was also in high speed.
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NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined 4.1 Advocate Ms. Dave submitted that the width of the road is approximately 10 feet in the year 1995, and if the shoulder side of the road is considered about two feet, then the road for passage would be almost about 7 to 8 feet, which Ms. Dave submitted would be impossible for both the vehicles to pass at the very same time. 4.2 Advocate Ms. Dave further submitted that the drivers of both the vehicles have died on the spot, the effect of the accident and its impact, had been on both the vehicles. Ms. Dave stated that both the vehicles have been damaged on the front side, and since the F.I.R. has been given by the cleaner of Truck No.GJ-10-T-0357 and none could come from the side of the Truck No.RNC- 6411, as the driver has already died, Ms. Dave submitted that the version from the side of the Truck No.RNC-6411 could not be rebutted, and the Tribunal has placed reliance only on the version of the complainant.
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5. Countering the argument, learned advocate Mr.Premal S.Rachh submitted that the Tribunal has considered the evidence which had come on record, and has rightly laid down the sole negligence of the driver of Truck No.RNC- 6411.
6. The Tribunal on consideration of the submission has noted that F.I.R. has been lodged against the driver of Truck No.RNC-6411. Both the Truck drivers have died in the accident. The Tribunal having considered the panchnama found that there were marks of tyres on application of the brakes by the driver of Truck No.GJ-10-T- 0357, and the front part of the Truck No.RNC-6411 collided with the said Truck. The Tribunal has also taken into consideration, the observation of the Panchas in the Panchnama, who have expressed the opinion that the accident had occurred due to the negligence on the part of driver of Truck Page 6 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined No.RNC-6411. Thus, on consideration of facts of the Panchnama coupled with the oral and documentary evidence on record, the Tribunal found that the accident had occurred due to sole negligence on the part of the driver of Truck No.RNC-6411.
6.1 The F.I.R. was lodged by the cleaner of Truck No.GJ-10-T-0357. According to him, he was a cleaner (Khalashi) on the said Truck and because of the accident, he was thrown down on the ground from the cabin and sustained injuries, and both the dead bodies were removed from the place. He was sent for medical treatment at Amirgadh. As per F.I.R. the owner of Truck was Bharatbhai Gadvi of Jamnagar. He referred to the name of driver as Samgar Gosai belonging to Gulamnagar Village. The F.I.R. reflects the fact that he was medically conscious while giving the complaint. He has stated before the police that the driver of Truck No.RNC-6411 was driven in full speed and Page 7 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined negligently and Truck driver had dashed with their Truck on the front side. Their Truck was carrying bricks, when heading towards Biyavar from Khambhaliya. The accident occurred at 8.30 night at Amirgadh village. According to him, the driver of Truck No.RNC-6411 rashly and negligently dashed with Truck No.GJ-10-T-0357. 6.2 The panchnama reflects that Truck No.GJ- 10-T-0357 was on the western border of the road facing Abu Road. The Truck vehicle was of Tata 1210 "A" Model. It was observed in the panchnama that the front part of the cabin was broken. The engine was totally broken and the spare parts of the machinery were also broken, which were found scattered. The engines were totally broken and the body of Truck No.GJ-10-T-0357 was totally damaged. The chassis were also found broken. 6.3 It was noted in the Panchnama that the Truck was loaded with cement bricks. All the Page 8 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined bricks, pieces of chassis of the Truck and the engines were found scattered. The front wheel of the Truck was also found broken, and it was noted that the Truck had fallen there. The wheels of front part of the Truck were detached from the vehicle. The diesel tank and the air tank were found broken, and the Truck was found on the left side of the road at the border. On the rear side of the Truck, it was noted that, about 20 feet of length there were wheel marks. The total damage of the Truck was noted of about Rs.1,80,000/-. 6.4 While on the eastern road facing west, a Truck was found lying facing left side. The number of the Truck was noted as RNC-6411, which was carrying cotton bags, which was found scattered on the road. The front part of the Truck was found broken and even the engine was found totally lost. The radiator, radiator fans, front net along with the cabin was found broken and were scattered on the road. The left side Page 9 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined body of the Truck was found broken and the right side was found half broken. The Truck number was noted as RNC-6411. It was further noted in the Panchnama that the front side of the cabin of Truck No.GJ-10-T-0357 was touching the left side of the Truck No.RNC-6411. The approximate damage was noted to be of Rs.2,00,000/-. The Panchas by seeing the position of the Truck No.RNC-6411 had found that the accident had occurred because of its fault.
7. The physical condition of vehicles, as both were heavy Trucks, would not have been changed, which were found lying on the narrow road. The possibility of changing the position would be negligible, as, at the time of drawing Panchnama, the parts of body of the vehicles were found destroyed and were found scattered on the said road.
7.1 The fact, which could be drawn to notice Page 10 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined is about the wheel marks of the Truck No.GJ-10-T- 0357, carrying bricks in it. The wheel marks were at a distance of about 20 Feet, which was observed by the Tribunal that the driver of Truck No.GJ-10-T-0357 had applied brakes. This fact could be taken into consideration to appreciate that the driver of Truck No.GJ-10-T-0357 would have tried to stop his Truck at a distance of 20 Foot probably by noting the speed of the vehicle coming from the opposite side. The deceased driver may have taken his own step to avoid the accident. The damage, which had occurred to the Truck No.GJ-10-T-0357 could be seen comparatively more than the Truck No.RNC-6411. Had the driver of Truck No.RNC-6411 equally applied brakes from his own side, then both the drivers could have protected themselves and could have avoided the accident.
7.2 The accident had occurred at about 8.30 in the evening, which could almost be considered Page 11 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined as night hours. The width of the road would not have allowed both the vehicles to drive at a speed which could not be controlled. The dash on Truck No.RNC-6411, carrying cotton bags, was found to be at the left side of the body, couple with all other damages, which were there on the front part of the cabin; while the truck which rammed into another truck had destroyed engine and every spare parts of Truck No.GJ-10-T-0357. The driver of Truck No.GJ-10-T-0357 had tried to applied brakes from the distance of 20 feet, which would be a sufficient gap for controlling the vehicle, while no such brake marks were there of Truck No.RNC-6411, which was approaching. The speed of Truck No.RNC-6411 appears to be uncontrollable. The Tribunal has, thus, rightly come to the conclusion that it was sole negligence of driver of Truck No.RNC-6411, which had led to the accident. The evidence on record is also supported by the cleaner, who had given Page 12 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined the F.I.R.
7.3 Thus, this Court does not find any reason to interfere with the conclusion reached by the Tribunal with regard to the negligence. Hence, First Appeal No.926 of 2007 stands dismissed.
8. In First Appeal No.4930 of 2006, Advocate Mr.Premal S.Rachh relying upon the judgment of Minu Rout Vs. Satya Pradyumna Mohapatra, reported in (2013) 10 SCC 695, to submit that the job of the driver is considered as a skilled job and for accident which had taken place on 08.04.2011, the Apex Court has assessed the monthly income of Rs.6,000/-.
9. Countering the argument, Advocate Ms. Dave submitted that the minimum wages schedule is to be kept in mind while deciding the income of the driver to be considered as a skilled person, Page 13 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined hence, stated that accordingly monthly income should be considered as Rs.1,300/- per month as per minimum wages schedule, and with 40% prospective rise the assessment has to be made.
10. The Tribunal had considered the written statement of the owner of Truck No.GJ-10-T-0357, which was on record at Exh.12, and according to the owner, the deceased was receiving Rs.5,000/- per month as income, but the Tribunal has rightly observed that the said pleading has not been proved by evidence of any person, nor the applicants have given any written documentary proof to support the contention of the receipt of income of Rs.5,000/-. The Tribunal has righly appreciated the fact that the deceased was driving at the time of accident, and he was in the job as a driver for last 15 years prior to his death, hence, accordingly considered his monthly income as Rs.2,400/-, and the prospective rise of income was added, and, therefore the Page 14 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined Tribunal came to the conclusion of considering his income as Rs.3,600/-.
10.1 This Court, in line of the judgment of Minu Rout (supra), is of a view that the job of the driver is of a skilled person. The judicial notice is required to be taken of the said fact. The judgment, which has been referred, is of the accident which had taken place on 08.11.2004. The minimum wages schedule has to be kept in mind for the date of 08.11.2004 of the state, then the skilled person would be in the category of 'A' Division and entitled for the minimum wage of Rs.2,400/-, while the Tribunal has considered the same in the present matter, for the accident which had taken place on 12.12.1996. If 15 years experience of the deceased to drive heavy vehicle is considered, then assessment of Rs.2,400/- as monthly income should be considered as rightly appreciated.
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NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined 10.2 The deceased was 39 years at the time of death, hence, prospective rise of the income would be 40%. As has been shown by Advocate Ms. Dave for the Insurance Company, the Tribunal has erred in adding 50% income for considering the prospective rise; while according to the judgment in National Insurance Company Ltd. v. Pranay Sethi and Ors., reported in AIR 2017 SC 5157, for the age below 40 years, addition of 40% towards the future prospective rise is required to be considered in the income of Rs.2,400/-. 10.3 Hence, the prospective income would come to Rs.3,360/- [2,400 + 960 (2,400 x 40%)]. The deduction of 1/3rd is not in line, since the judgment of Sarla Verma and Others vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121, has set standard for deduction towards personal and leaving expenses of the deceased considering the dependent family members, which are here six in number, hence, Page 16 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined deduction of 1/4th is required to be made, which comes to Rs.840/-. Hence, the monthly dependency would come to Rs.2,520/- (3,360 - 840). Applying the multiplier of 15, annually the dependency loss would be Rs.4,53,600/- (2,520 x 12 x 15). 10.4 When the deceased died, he had left behind him the dependents as widow and three minors, while both the parents had died during the trial. Considering the judgment of Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782], Rs.1,60,000/- (40,000 x 4) for four claimants is granted as consortium loss. 10.5 For funeral expense and loss to estate Rs.15,000/- each under both the heads is considered, as has been laid down in the judgment of Pranay Sethi and Ors. (supra).
11. In view of the above, compensation under Page 17 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined different heads would be:
Heads Amount
Loss of Dependency Rs. 4,53,600/-
Consortium Loss Rs. 1,60,000/-
Funeral Expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Total Rs. 6,43,600/-
12. The Tribunal has awarded total
compensation as Rs.4,16,000/-. Thus, the enhanced amount would be Rs.2,27,600/- (6,43,600 - 4,16,000). The enhanced amount be deposited within a period of Eight Weeks at the interest rate of 7.5%.
12.1 After depositing of the amount, the Tribunal concerned is directed to disburse 70% thereof to the widow and 30% be disbursed to the rest of the claimants in equal proportion by RTGS or NEFT on proper verification.
13. As has been discussed hereinabove, the Page 18 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined liability would be on the United India Insurance Company of Truck No.RNC-6411.
14. In the result, First Appeal No.4930 of 2006 is partly allowed. The impugned judgment and order dated 15.05.2006 passed by Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP No.880 of 1997 stands modified to the aforesaid extent. No order as to costs.
First Appeal No.2251 of 2016
1. The New India Assurance Company Ltd. has filed the present appeal under Section 30 of the Workmen's Compensation Act, 1923, aggrieved by the judgment and order dated 28.07.2016 passed by the ex officio Commissioner, Workmen's compensation Act, Labour Court, Jamnagar in Workmen Compensation Application Fatal No.13 of 2006.
2. The judgment of M.A.C.P No.880 of 1997 Page 19 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined was decided on 15.05.2006, and after almost 10 years, the Commissioner has allowed the petition, and has granted compensation as Rs.3,73,800/-. The order was against the Truck owner Sajanbhai Kulubhai Palia and the New India Assurance Company Ltd.
3. The facts of the judgment of M.A.C.P. No.880 of 1997 was put to the claimant in the cross examination, where it was admitted that the claim compensation has been ordered by the Motor Accident Claims Tribunal.
4. Mr. Vibhuti Nanavati, learned advocate for the Insurance Company, referring to the provision of section 167 of the Motor Vehicle Act, 1988 submitted that the claimants have to exercise an option for compensation. Mr. Nanavati stated that despite anything contained in Workmen's Compensation Act, 1923, the death or bodily injury of any person gives rise to the Page 20 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined claim for compensation under the M.V. Act, and also under the Workmen's Compensation Act, 1923, then person entitled to compensation may without prejudice to the provisions of Chapter X, claim such compensation, under either of these Acts, but not under both.
4.1 Advocate Mr. Nanavati, thus, submitted that Workmen Compensation Commissioner was required to take this fact into notice that in the cross-examination the claimant had admitted about the compensation received under Motor Vehicle Act, 1988, and, when the claimant herself had admitted the said fact, learned advocate Mr. Nanavati submitted that Commissioner was required to reject the application under Workmen's Compensation Act outright without any further details.
4.2 Advocate Mr. Nanavati has relied on the judgment dated 23.06.2017 in case of Madinabibi Page 21 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined Dasotbhai Sheikh And Anr. Vs. Jagdishchandra Ramnlal Kachiya & Ors., in First Appeal No.1998 of 2017.
5. Section 167 of the M.V. Act reads as under:
"167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmens Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
6. As admitted by the claimants, by the judgment in MACP No.880 of 1997, the compensation was granted to the claimants and being aggrieved, the claimants had approached this Court in the Page 22 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024 NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined present appeal being First Appeal No.4930 of 2006, as referred hereinabove. The claimants cannot go before both the forums. 6.1 Section 167 of the M.V. Act clarifies that the claimant is required to exercise an option for the compensation. Here, when the claimants had already exercised the option by filing MACP No.880 of 1997 to deal with the facts of vehicular accident by the provision of M.V. Act, the claimants ought not to have gone under the Workmen's Compensation Act. 6.2 The judgment pronounced by the ex officio Commissioner under Workmen's Compensation Act, Labour Court, Jamnagar dated 28.07.2016 in Workmen Compensation Application Fatal No.13 of 2006, is against the provision of the law. The claimants cannot have the benefits from both the forums. The restrained was to be followed as provided under section 167 of the M.V. Act. Page 23 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024
NEUTRAL CITATION C/FA/4930/2006 JUDGMENT DATED: 22/04/2024 undefined 6.3 The workmen Commissioner had fallen in error by entertaining the application under Workmen Compensation Act, though, the fact had brought to his notice of the claim compensation received under M.V. Act.
7. Hence, in view of the provision of law, the appeal is allowed. The order dated 28.07.2016 passed by the ex officio Commissioner, Workmen's compensation Act, Labour Court, Jamnagar in Workmen Compensation Application Fatal No.13 of 2006 stands quashed and set aside.
8. In the result, the total amount, which has been deposited, in view of the order of ex officio Commissioner, Workmen's compensation Act, Labour Court, Jamnagar be deposited back along with interest before the Labour Court, Jamnagar and the Commissioner, is, thus, directed to refund the amount along with accrued interest to the appellant - New India Assurance Company Ltd. Page 24 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024
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9. Record and Proceedings be sent back to the concerned Court forthwith, if received.
(GITA GOPI,J) Pankaj Page 25 of 25 Downloaded on : Fri May 10 20:52:22 IST 2024