Gujarat High Court
Bhanuben P. Joshi And Ors. vs Kantilal B. Parmar And Anr. on 1 November, 1992
Equivalent citations: 1994ACJ714
JUDGMENT J.N. Bhatt, J.
1. The unsuccessful claimants have challenged the dismissal of their entire claim in Motor Accident Claim Petition No. 217 of 1988 by the Motor Accidents Claims Tribunal (Auxiliary), Sabarkantha, at Himatnagar, by invoking the aid of the provisions of Section 173 of the Motor Vehicles Act, 1988.
2. A conspectus of the material facts giving birth to the present appeal may shortly be narrated at the outset so as to appreciate the merits of the claim and challenge against it.
3. The accident in question occurred on 10.10.1986 at about 10.00 p.m. The deceased Pranshankar Jayshankar Joshi was travelling as a pillion rider on the motor cycle bearing No. GJU 5872 and driven by one Kantilal Babubhai Parmar, which was proceeding on the highway leading from Ambaji to Modasa. According to the case of the claimants, when the said motor cycle reached near Gajan Bus Stand, on Shamlaji Modasa Highway, at about 10.00 p.m., an unidentified truck dashed against the motor cycle driven by the opponent No. 1, Kantilal Babubhai Parmar, with the result, the deceased Pranshankar and the diiver of the motor cycle, that is original opponent No. 1, Kantilal Babubhai Parmar, were thrown on the road. The truck diiver ran away along with the truck after the occurrence of the accident. It is also the case of the claimants that the original opponent No. 1, Kantilal, was driving his motor cycle with excessive speed and in violation of the traffic rules and he was also contributory, responsible for the emergence of the unfortunate road accident.
4. The present appellants are the original claimants and the present respondents are the original opponents. Original claimant No. 1 is the widow and original claimant Nos. 2 and 3 are the sons of the deceased Pranshankar. Original opponent No. 1, Kantilal, is the driver-cum-owner of the offending motor cycle whereas original opponent No. 2 is the insurer in respect of the said motor cycle. For the sake of convenience and brevity, they are hereinafter referred to as 'the claimants' and 'the opponents'.
5. The claimants further contended that the deceased who was a businessman and dealing with kerosene and crude oil was earning about Rs. 20,000/- per annum by way of net profit. The deceased was the bread-winner of the family. Sons of the deceased were studying at the relevant time. The deceased survived for about 10 hours before he succumbed to the injuries. Therefore, the claimants filed the application for' compensation under the Motor Vehicles Act and claimed an amount of Rs. 2,25,000/-from the opponents.
6. Opponent No. 1, driver-cum-owner of the motor cycle, appeared and resisted the claim petition by filing written statement, at Exh. 30. He, inter alia, contended that one truck came from behind with an excessive speed and dashed against the motor cycle resulting into the accident. Opponent No. 2, the insurer of the offending motor cycle, contended that the driver of the motor cycle was not responsible for the accident. It was also contended that the accident in question occurred on account of the rashness and negligence on the part of the driver of the unidentified truck.
7. In view of the facts and circumstances, the issues came to be settled at Exh. 13. On appreciation of the facts and circumstances of the case, the learned Tribunal reached the conclusion that there was no rashness or negligence on the part of the driver of the motor cycle, that is, the opponent No. 1. Therefore, the claim petition came to be dismissed in its entirety. Hence, this appeal by the claimants.
8. We have been taken through the entire evidence on record. We have also heard the learned counsel appearing for the parties at marathon length and we are of the opinion that the conclusions reached by the Tribunal are unjust and illegal. There is patent mis-appreciation of evidence and glaring error of law in appreciating the principles governing the amount of compensation under the law of Tort.
9. Opponent No. 1, Kantilal Babubhai Parmar, the driver-cum-owner of the motor cycle, is examined at Exh. 30. Hasmukhbhai Ishwarbhai is examined at Exh. 38. The F.I.R. was lodged by one Ramanbhai Patel, which is produced at Exh. 39. Panchnama is produced at Exh. 25. It becomes very clear from the evidence on record that on the fateful day, two motor cycles were proceeding in the same direction. Deceased Pranshankar was sitting on the pillion seat while opponent No. 1, Kantilal, was driving the motor cycle No. GJU 5872, whereas Hasmukhbhai Ishwarbhai was sitting on the pillion seat and one Ramanbhai Patel was driving another motor cycle No. 4852. Both the vehicles were proceeding in the same direction-Ambaji Road side to Umreth side. The accident in question had occurred between 10 p.m. and 10.30 p.m. on 10.10.1986. It is found from the evidence on record that the accident occurred on account of composite negligence on the part of the driver of one unidentified truck and motor cycle, that is, opponent No. 1, Kantilal. Since the victims of the road accidents are entitled to claim compensation from all or any one of the joint tortfeasors, it would not be necessary in this case to apportion the extent of contribution of each driver for the happening of the unfortunate accident. The truck driver fled away immediately after dashing and he and the truck remained unidentified. Therefore, the claimants who are the heirs of the deceased have claimed compensation from one of the joint tortfeasors.
10. It may also be mentioned that witness Hasmukhbhai Patel, Exh. 38, has clearly testified that opponent No. 1, Kantilal, was driving the motor cycle without back-light and reflectors and sometime immediately before the accident, without headlights on. Hasmukhbhai Patel was sitting on the pillion seat of the motor cycle which was proceeding ahead of the offending motor cycle of Kantilal. After the accident, the F.I.R. was lodged by Ramanbhai Patel, who was riding another motor cycle. The F.I.R. is produced at Exh. 39. The F.I.R. is not relied on by the Tribunal stating that the details are not given in the F.I.R. by Ramanbhai Patel. Needless to reiterate that F.I.R. need not be a detailed or meticulous report or an account of narration of the accident or incident, more so in a case like one on hand. The F.I.R. is admitted in evidence with the consent of the parties. Therefore, the question of non-examination of the maker of the F.I.R. would not assume any survival value. There is also no dispute about the fact that the maker of the F.I.R., Ramanbhai Patel, was not examined as at the relevant time he was not in India and had gone abroad. Be that as it may. Since the F.I.R. is admitted in evidence it cannot be discarded merely on the ground that details are not furnished by the maker. This F.I.R. reinforces the version of the claimants. Thus, the case of the claimants is supported by the witness Hasmukhbhai Patel and F.I.R. at Exh. 39. Apart from that, it is found that opponent No. 1 was driving his motor cycle, few minutes before the occurrence of the accident, in flagrant violation of the traffic rules and regulations and more so in breach of Rule 146 of the Bombay Motor Vehicles Rules, 1959. There were also no reflectors as required under Rule 213 of the Rules. Even headlight of the offending motor cycle driven by the opponent No. 1 was also off at the time of the accident. All these facts and circumstances while taking into account would lead to an unerring inference that the offending motor cycle driven by opponent No. 1, Kantilal, was driven in a rash and negligent manner and the opponent No. 1, Kantilal, had also contributed to the emergence of the accident. Had he been driving the motor cycle in a controllable speed with lights and reflectors as required under the rule, and on the correct side of the road, the unfortunate dashing by the truck from behind could have been averted. In these circumstances, it leaves no manner of doubt that opponent No. 1, Kantilal Babubhai Parmar, was also rash and negligent and responsible for the happening of the unfortunate accident along with the driver of the unidentified truck. This aspect, unfortunately, with due respect, is ignored by the Tribunal. Even while assessing and examining the facts and circumstances on the anvil of the doctrine of res ipsa loquitur, it can safely be concluded that opponent No. 1, Kantilal, who was in-charge of the offending motor cycle at the relevant time, has also contributed in the emergence of the unfortunate road accident. No doubt, in the present case, there is evidence of Hasmukhbhai Patel, supported by the F.I.R. that opponent No. 1 was also driving his motor cycle at the relevant time in a rash and negligent manner. Having given anxious thought to the facts and circumstances emerging from the record, we are of the clear opinion that the finding of the Tribunal that there was no rashness or negligence on the part of the opponent No. 1, Kantilal, is not only erroneous but is illegal and it is, therefore, quashed.
11. Next it brings into sharp focus the question of damages. Opponent No. 1 was the driver-cum-owner of the offending motor cycle and opponent No. 2 is the insurer. Since the claim petition came to be dismissed for want of proof of negligence, the assessment of compensation is not made by the Tribunal. In our opinion, in such cases alternatively the Tribunal should embark upon the inquiry of assessment of compensation. Be that as it may. The evidence is required to be analysed and examined so as to determine a just and reasonable amount of compensation for the untimely demise of deceased Pranshankar in an unfortunate road accident.
12. The deceased was 52 years old at the time when his life was cut short at the cruel hands of providence. He was a businessman dealing in kerosene and crude oil at village Kalsar. According to the case of the claimants, the deceased was by and large on an average earning Rs. 20,000/- per year by way of net profit. Claimant No. 1, widow of the deceased, is examined at Exh. 24 and she has testified that the deceased was contributing Rs. 1,200/- to Rs. 1,500/- per month for running the house out of the aforesaid income. The deceased was also doing motor cycle repairing work. The deceased was hale and hearty. He had sustained serious injuries and he succumbed to the injuries almost 10 hours after the accident, in Civil Hospital, at Ahmedabad.
13. The principles governing the amount of compensation in a case like one on hand are explicitly established and are well settled. No doubt, the human life is invaluable and we do not value the life or loss of limb. What we value is the dependency of the economic benefit lost by the claimants on account of the unfortunate demise of their bread-winner in the road accident. Even while taking a conservative view in the matter, it can safely be concluded that the deceased must be earning minimum Rs. 1,700/- per month at the time of the accident, out of his business. No doubt, he would have earned some more amount on advancement of his age. The deceased was 52 years old at the time of accident. The deceased had to shoulder the responsibility of the wife and two children, of whom one was college-going boy. From the evidence on record, it can safely be concluded that the annual utility of the deceased to the common family fund would not be in any case less than Rs. 14,400/-. In other words, after deducting the monthly personal and pocket expenses of the deceased from his earnings, the contribution of the deceased to the common family fund can be safely assessed at Rs. 1,200/- per month. Thus, the annual dependency of the deceased to the common family fund would come to Rs. 1,200 x 12 = Rs. 14,400/-. The deceased was 52 years old at the relevant time and considering the facts of the case, multiplier of 12, in our opinion, will be reasonable and appropriate in the present case. Therefore, the claimants would be entitled to Rs. 14,400 x 12 = Rs. 1,72,800/-under the head of the economic benefits to the dependants.
14. The next question which arises is that what reasonable amount should be awarded to the claimants under the head of loss of expectation of life. In this connection, it may be mentioned that the conventional amount under the head of loss of expectation of life is being revised from time to time. Initially, an amount of Rs. 3,000/- used to be awarded under this head. Subsequently, it was revised to Rs. 5,000/-, following the decision of this court, rendered in F.A. No. 524 of 1976; decided on 21.8.1978 by Division Bench consisting of M.P. Thakkar (as he then was) and N.H. Bhatt, JJ. Later on, this amount came to be upwardly revised to Rs. 10,000/-in a decision rendered by this court in the case of Rafla Sultan v. Oil & Natural Gas Commission 1986 ACJ 616 (Gujarat). The conventional figure which was being taken to be Rs. 5,000/- under this head thus came to be revised to Rs. 10,000/- in the aforesaid case. This court has laid down in two decisions, i.e., in the case of Chaturji Amarji v. Ahmad Rahimbux 1980 ACJ 368 (Gujarat) and in the case of Khodabhai Bhagwanbhai v. Hirji Tapu 1980 ACJ 237 (Gujarat) and later on in the aforesaid Rafia Sultan's case (supra) that proper damages to be assessed on different heads are required to be revised from time to time depending upon the changing time and extent of fall of purchasing power of rupee. The figure of Rs. 5,000/-was upwardly revised to Rs. 10,000/- in Rafia Sultan's case (supra), which was decided on 1.8.1985. Thereafter, the purchasing power of rupee is substantially affected. It is an admitted fact that the value of rupee is substantially eroded in the last 5 years. The sky-rocketing price and the fall in value of rupee have materially affected the consumer price index. Therefore, the amount of Rs. 10,000/- is required to be upwardly revised to Rs. 20,000/- under the head of loss of expectation of life. There is no dispute about the fact that the consumer price index is doubled during the period between 1984-85 and 1991-92. It is not disputed that urban non-manual workers' price index shows 197 in July, 1992, whereas it was 100 points in 1984-85. Apart from that, the runaway inflation and substantial erosion of the value of rupee are required to be considered and, therefore, the conventional figure of Rs. 10,000/- is required to be upwardly revised to Rs. 20,000/- under the head of loss of expectation of life.
15. It is very clear from the evidence on record that the deceased had sustained serious injuries. He was initially shifted to Modasa where he was administered primary treatment from where he was shifted to the Civil Hospital, Ahmedabad, under medical advice. He was conscious till he succumbed to the injuries. Thus, it is very clear from the evidence that the deceased had survived for a spell of almost 10 hours after the accident and he must have suffered extreme pain during that spell. The tortfeasors are also liable to pay reasonable amount of compensation for the excruciating pain and shock arising out of the accident to the victims or heirs of the victims and this proposition of law is very well settled. Since the deceased survived for a spell of about 10 hours after the accident and he remained conscious, an amount of at least Rs. 10,000/- should be awarded under the head of pain, shock and suffering of the deceased before he succumbed to the serious injuries suffered by him. Therefore, the claimants are entitled to Rs. 10,000/- under that head. It is an admitted fact that the deceased had suffered serious injuries and he was required to be taken to the Primary Health Centre, Modasa and from there to the Civil Hospital, Ahmedabad and he was conscious throughout. After his death, his body was shifted to his native place. Therefore, the claimants are to be entitled to an amount of Rs. 5,000/- for transport and other incidental expenses after the accident.
16. Having regard to the facts and circumstances emerging from the evidence on record, we find that the claimants are entitled to a sum of Rs. 2,07,800/- in all by way of compensation under economic and non-economic heads from the opponents. It is not in dispute that opponent No. 1 was the driver-cum-owner of the offending motor cycle. He was compositely rash and negligent as found by us hereinbefore. The insurance policy is produced at Exh. 33. It is an admitted fact that no special defence is raised against the liability of the payment of compensation by the insurance company. No witness was examined by the insurer. Apart from that, considering the policy and the circular in this behalf produced by the insurer before this court in this appeal, we are of the clear opinion that the insurance company is equally liable to indemnify the insured. In the net result they are jointly and severally liable for payment of compensation to the claimants.
17. Now the question arises with regard to the apportionment of the amount of compensation. In the facts and circumstances, it would be just and reasonable to apportion the awarded amount in the ratio of 50 : 25 : 25 between the three claimants, that is, the widow and two sons of the deceased.
18. In the facts and circumstances discussed hereinabove, the claimants are found entitled to, in aggregate, an amount of Rs. 2,07,800/- by way of compensation with 15 per cent interest from the date of the application till realisation with proportionate costs.
19. Out of the amount awarded, 90 per cent amount coming to the share of each claimant shall be invested in fixed deposit receipt of any nationalised bank or in any Government security of their choice or in any recognised security under the scheme of Unit Trust of India for a period not less than 72 months. The claimants will be entitled to the interest which shall accrue due thereon periodically. However, we may make it clear that the claimants shall not be entitled to create any charge, loan or encumbrance on the said deposit without prior approval of the Tribunal. Remaining 10 per cent amount of the compensation shall be given to each claimant by way of account payee cheque only.
20. In the result, the appeal is allowed to the aforesaid extent with proportionate costs throughout.