Gujarat High Court
Jagruti Shishir Banugariya (Patel ) vs Ravji Kanthan Ahir & 2 on 17 March, 2015
Bench: Jayant Patel, G.B.Shah
C/FA/3828/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3828 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
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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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JAGRUTI SHISHIR BANUGARIYA (PATEL )....Appellant(s)
Versus
RAVJI KANTHAN AHIR & 2....Defendant(s)
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Appearance:
MR MEHUL SHARAD SHAH, ADVOCATE for the Appellant(s) No. 1
MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 17/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgment and the award passed by the Tribunal in Motor Accident Claim Petition No. 75 of 1998 dated 05/10/2006 whereby the Tribunal has awarded Page 1 of 17 C/FA/3828/2007 JUDGMENT total compensation of Rs.1,90,500/ with interest @ 7.5% per annum out of which, the appellant - claimant would be entitled to 50% of the amount as per the apportionment given by the Tribunal between the appellant in the capacity of wife of the deceased with the other claimant, who was the mother of the deceased.
2. The short facts of the case appear to be that on 11/06/1995 when the deceased Dr. Shishirkumar with his wife Dr. Smt. Jagrutiben was going from Morbi to Rajkot on Kinetic motorcycle bearing registration No. GJ37127 of one Vipul Hasmukhbhai Vadgama and when they reached near Panchvati Ashram on the highway at about 9:30 a.m., one truck bearing registration No. GJ12T 6343 came from the back side and dashed with the motorcycle, resultantly, deceased Shishirkumar sustained injuries and he succumbed to the injuries whereas, his wife also sustained injuries. The aforesaid accident gave rise to two claim petitions, one filed by the mother of the deceased being claim petition No. 57 of 1998 for compensation of Rs.21 lakhs and the another was by the appellant in the capacity of wife of the deceased being claim petition No. 75 of 1998 for compensation of Rs.21 lakhs. It may also be recorded that the wife of the deceased filed a separate claim petition being No. 722 of 1995 for compensation due to the injuries sustained by her in the accident. So far as claim petition Nos.
Page 2 of 17C/FA/3828/2007 JUDGMENT 57 of 1998 and 75 of 1998 are concerned, they were consolidated and the Tribunal at Morbi ultimately passed the judgment and the award whereby, the abovereferred compensation has been awarded. It may be recorded that the compensation awarded by the Tribunal was 50% to the mother of the deceased being the petitioner in claim petition No. 57 of 1998 and 50% to the wife of the deceased being petitioner in claim petition No. 75 of 1998. So far as the petitioner of claim petition No. 57 of 1998 (mother of the deceased) is concerned, she has not preferred any appeal but the wife of the deceased, who was the petitioner in claim petition No. 75 of 1998, has preferred the present appeal for enhancement of the compensation.
3. We have heard Mr. Mehul Sharad Shah, learned counsel appearing for the appellant and Mr. Sunil B. Parikh, learned counsel appearing for the respondent No. 3 - insurance company. The other respondents are served but none appears on their behalf.
4. The first contention raised by the learned counsel for the appellant was on the aspects of negligence attributed by the Tribunal to the extent of 50% to the driver of the motorcycle i.e. the deceased and the driver of the truck insured with the respondent No. 3 - insurance Page 3 of 17 C/FA/3828/2007 JUDGMENT company. It was submitted by the learned counsel appearing for the appellant that claimant Jagrutiben was the eyewitness and when she has deposed to the extent that driver of the motorcycle - her husband was not negligent and when the driver of the truck had not entered into the witness box, there was no reason for the Tribunal to attribute 50% negligent to the driver of the motorcycle and to hold the driver of the truck 50% negligent. It was submitted that the Tribunal has erroneously considered the contents of the FIR by the owner of the motorcycle, who was not the eyewitness to the accident. In the submission of the learned counsel for the appellant, the driver of the truck was fully negligent for the accident and therefore, the Tribunal has committed error.
5. In our view, the said contention raised by the learned counsel for the appellant should not detain further in view of the decision taken by this Court in First Appeal No.910/10 in the Daxaben Parshottambhai vs. Leruji Dinaji Bhati decided on 11.03.2015, wherein more or less, similar contention came to be considered by the Court at paras 4 to 8, which reads as under "4. The learned counsel for the appellants raised the first contention that the contributory negligence attributed by the Tribunal to the deceased at 18% for the accident is erroneous because the Tribunal did not appreciate the aspect that there was Page 4 of 17 C/FA/3828/2007 JUDGMENT oral evidence of the eye witness and the driver of the truck had not entered the witness box. It was submitted that under these circumstances, the Tribunal ought to have held the driver of the truck 100% negligent for the accident.
5. Whereas, Mr. Meena, learned counsel for respondent no.3, by supporting the order passed by the Tribunal, contended that the Tribunal has taken reasonable view of the matter on the basis of the evidence of the panchnama and the situation in which the accident had happened. He submitted that merely because the driver was not examined on behalf of the insured vehicle it cannot be said that the Tribunal had no power to attribute the contributory negligence even if there was appropriate evidence of other document.
6. The examination of the contention shows that the chargesheet and the panchnama were produced in the evidence on behalf of the claimants through the deposition of Dakshaben Parshottambhai Dhami, exhibit 26. When the evidence was produced of charge sheet and panchnama for the scene of incident, it would not lie in the mouth of the claimants to contend that the evidence produced of police papers of chargesheet and panchnama and the FIR should not have been considered by the Tribunal for attribution of contributory negligence. The panchnama shows that the scooter of the deceased was found near white strip which is on the center of the road. The motorcycle had jerk marks on the right side. The story narrated by the complainant is that the truck came from the front side and dashed with the motorcycle resulting into the accident. If jerk is given by the truck to the motorcycle on the right side, the motorcycle may be thrown on the extreme left side of the road. In spite of that, the motorcycle, as per the panchnama, even after Page 5 of 17 C/FA/3828/2007 JUDGMENT the accident is found nearby the center of the road nearing white strip on the center of the road. The accident has happened during day time in the morning 7.00 o'clock. Therefore, had the deceased driving the vehicle on the extreme left of the road, the chances of avoiding the accident could not be ruled out. But at the same time, more care was required to be taken on the part of the driver of the truck for the small vehicles being driven by the persons coming from the front side. Under these circumstances, the Tribunal has assessed the contributory negligence to the extent of 18% to the driver of motorcycle, i.e., deceased and 82% to the driver of the truck. In our view, it cannot be said that the Tribunal has taken any unreasonable view, which may call for interference in exercise of the appellate power.
7. The attempt to contend that the oral evidence of eye witness Chhagan Devraj should have been given more weightage as against the evidence of panchnama and FIR cannot be countenanced for the simple reason that when the Tribunal has to form the opinion or make the assessment for contributory negligence, all evidences are to be considered. As against the oral evidence of Chhagan Devraj, the documentary evidence of FIR filed by the very person Chhagan Devraj and the panchnama has been considered by the Tribunal. If oral evidence of Chhagan Devraj, p.w.3, Exh.57 is considered with FIR, there are material contradiction in the narration of the incident, more particularly on the aspect of overtaking, which is completely silent in the FIR. Under these circumstances, if the Tribunal after appreciation of the evidence has taken into consideration the panchnama prepared for the scene of the accident, it cannot be said that the oral evidence is only to be believed and the documentary evidence, which is produced by the claimants Page 6 of 17 C/FA/3828/2007 JUDGMENT themselves ought to have been discarded.
8. The decision upon which the reliance has been placed by the learned counsel for the appellants in the case of Syed Sadiq Etc. vs. Divisional Manager, United India Ins. Co. reported at 2014 (1) SCALE 389 and the another decision of the Apex Court in the case of Jiju Kuruvila Vs. Kunjujamma Mohan reported at 2013 (0) GLHELSC 54170 are of no help to the learned counsel for the appellants since in none of such cases, the evidence was produced of the panchnama and the FIR by the claimants themselves. Under these circumstances, both the decisions cannot be made available to the facts of the present case."
6. Apart from the above referred observations made by this Court in the above referred decision, one of the relevant aspect is that though Jagrutiben, claimant, is the eye witness, she herself is an interested witness in both ways, one in the present petition, she is the claimant as well as she has also preferred separate petition for compensation due to injury sustained by her before the other Tribunal. When the claimant or the witness is the interested witness, her testimony or the deposition is required to be scanned and can be evaluated with the help of other reliable evidence. The contents of the FIR shows that the owner of Honda motorcycle and whose motorcycle was being driven by the deceased himself has stated that there was overtaking of rickshaw by the deceased when he was driving the motorcycle and simultaneously, the truck had also overtaken the rickshaw. Meaning thereby, there Page 7 of 17 C/FA/3828/2007 JUDGMENT were two vehicles, viz., motorcycle as well as truck had overtaken the rickshaw and during that course, the truck dashed the motorcycle. The said fact gets corroboration through the evidence of panchnama wherein the jerk marks are found on the leftcleaner side of the truck. Under these circumstances, the view taken by the Tribunal could not be said to be unreasonable, which may call for interference in exercise of the appellate power. Hence the contention cannot be accepted.
7. The learned counsel for the appellant next contended that the compensation awarded by the Tribunal is on a much lower side. It was submitted that the assessment of income of the deceased who was a homeopathic doctor is too less and the Tribunal ought to have considered the income more than Rs.3,000/ though the claimant had stated the income of the deceased Rs.7,000/. He also submitted that the Tribunal has committed error in deducting 2/3rd of the amount towards personal expenses and averaging out the age of the claimants for the purpose of multiplier instead of considering the age of the deceased at the time of the accident. He submitted that remarriage by the wife of the deceased is irrelevant aspect and therefore, this Court may enhance the compensation.
8. Whereas, Mr.Parikh, learned counsel appearing for the respondent insurance company contended that Page 8 of 17 C/FA/3828/2007 JUDGMENT the wife of the deceased claimant was also a Doctor and as per the crossexamination of the mother of the deceased, she was practicing with the deceased and even subsequently also, in the crossexamination of claimant Jagrutiben, it was found that she was practicing in Kutch as a medical practitioner. Therefore, she could not be said as dependent, but in any case, she had also remarried and once she remarries, she would not be entitled for compensation. The mother, another claimant, has accepted the compensation and if the compensation is enhanced in the case of wife, the appellant herein, the uniformity in the compensation would not be maintained and therefore, this Court may not enhance the compensation.
9. On the aspect of remarriage by the appellant, we may record that this Court [(Jayant Patel, J.) (one of us)] had an occasion to consider the issue in First Appeal No. 4492/07 in the case of National Insurance Company Ltd. vs. Bhartiben Bhupatbhai and others decided on 07.09.2007. This Court in the said decision, at paras 3 to 5, observed as under
3. The learned counsel for the appellant first contended that the wife of the deceased would not be entitled to the compensation because she has remarried after the incident and in furtherance to his submission, he contended that as per the deposition of the motherinlaw, who is one of the claimant, the accident occurred one day after the marriage and after about three Page 9 of 17 C/FA/3828/2007 JUDGMENT months, she has remarried and since she has remarried, she cannot be said as dependent entitled for compensation. The learned counsel further contended that the mother of the deceased would only be entitled to the compensation and not the widow of the deceased who has remarried. The learned counsel further contended that as per Section 166 of the Motor Vehicles Act, only legal representative is entitled to file a claim petition. If the wife has remarried, she would cease to be the legal representative and therefore, not entitled to claim the compensation as per the Act. The aforesaid aspects are not considered by the Tribunal and there is an error committed by the Tribunal.
4. The examination of the said contention shows that the basis of the contention is on the wrong premise. The tortuous liability would accrue on the date of accident. Merely because the adjudication has taken place on a later stage is not a relevant circumstance to get away from the liability or to repudiate the liability of the tortfeaser. Therefore, if such principles are applied on the date of the accident, the lawfully wedded wife or the widow of the deceased would be entitled to the compensation. Merely because at a later stage she remarried, is absolutely not justifiable ground to deprive her from the compensation nor the insurance company which is otherwise liable to pay the compensation can get away from the liability. This Court had considered the similar question in the First Appeal No.3299 of 2007 which came to be decided on 10.08.2007 in which the Court has observed as under:
3. The learned Counsel for the appellant raised the only contention that the claimants were only father and mother of the deceased since the wife of the deceased has remarried and on account of Page 10 of 17 C/FA/3828/2007 JUDGMENT her abandonment of the claim pending the claim petition and, therefore, the Tribunal ought to have awarded 1/3rd of the amount of dependency benefit, instead of 2/3rd of the benefits and, therefore, there is an error committed by the Tribunal in awarding the compensation to the extent of 2/3rd dependency benefit.
4. The learned Counsel for the original claimants, during the course of hearing placed on record the application for deletion, the order passed by this Court and the affidavit of the wife of the deceased and also the recent affidavit dated 18.7.2007 for the declaration by the wife, who has remarried to the effect that she has abandoned the right in favour of the parents of the deceased.
5. It appears that as per the principles of tortuous liability the relevant event is the date of the accident and no the subsequent circumstances of the dependent members of the deceased, who expired in the accident. It is not in dispute that on the date of the accident the deceased was married and the wife as well as the parents namely; father and mother both were dependents of the deceased. Therefore, the liability, if any, in accordance with law did accrue for the appellant Insurance Company or the other tort feasors, as the case may be. It is true that in the present case, pending the claim petition, the wife of the deceased has abandoned the claim and on account of the same, her name was deleted, but under such circumstances, the reasonable construction would be that the wife is not interested to succeed the property or the dependency benefit realised therefrom of the Page 11 of 17 C/FA/3828/2007 JUDGMENT deceased. Even as a successor of any person, who is governed by Hindu Succession Act, wife, father and mother are in the first degree of the successor. On account of either non existence of any of the members of successor in the first degree, the properties are to be enjoyed by the remaining members falling in the category of first degree succession. It may be that the number of persons, who are dependent upon the deceased may have the relevance while ascertaining the compensation, but after the accident, if the wife has remarried or that one of the parents, either father or mother has expired, would not be a justifiable ground to contend that the Insurance Company would not be liable to pay the compensation, though liability already accrued in accordance with law on the date of accident.
6. Therefore, keeping in view the aforesaid aspects, if the present case is considered, it cannot be said that the Tribunal has committed error in awarding 2/3rd amount as compensation.
As observed earlier, the appellant Insurance Company would not be entitled to take any benefit of the deletion of the name of the wife. Further, it also deserves to be recorded that the affidavit is filed, which shows that the wife has abandoned her right in favour of the parents of the deceased. Such circumstances are not unknown in cases where on account of the accident the person concerned has expired and the wife has remarried. It appears that if the legal liability based on the principles of law of tort read with the provisions of the Motor Vehicle Act has accrued on the date of accident, the Insurance Company cannot validly contended that the Tribunal ought not to Page 12 of 17 C/FA/3828/2007 JUDGMENT have awarded the compensation merely because the wife has remarried or she has abandoned her right or got herself deleted by abandoning the right in favour of the parents of the deceased.
7. The reference may also be made to the decision of the Division Bench of this Court in case of New Indian Insurance Company Limited v. Ramsinh Abhesinh Rathod & Ors.", reported in 2006(0) GLHEL 217371, wherein the Division Bench of this Court, on account of the death of one of the parents, observed that the quantum of compensation would continue, if subsequent to the date of the accident, even if one of the surviving parents has continued to hold the interest.
8. In view of the above, it cannot be said that the Tribunal has committed error in awarding the compensation of 2/3rd of the dependency benefit.
9. Hence, the appeal is meritless and, therefore, deserves to be dismissed.
5. Therefore, the contention as sought to be canvassed cannot be accepted. The attempt on the part of the learned counsel to contend that the marriage was only for one day and the wife is now not dependent upon the income of the deceased on account of the remarriage, cannot be countenanced at the instance of the Insurance Company and this Court is not called upon to decide the inter se dispute between the motherinlaw and the wife. So far as the insurance company is concerned, as the tortuous liability has accrued, it is not absolved or cannot get away from the liability to pay the compensation as per the Act to the legal heirs of the deceased. Wife of the deceased, even if married at a later stage would continue to represent the estate for Page 13 of 17 C/FA/3828/2007 JUDGMENT claiming the compensation under Section 166 of the Act which is based on the cause of action on the date of the accident and therefore, the said contention cannot be accepted and is rejected."
The aforesaid observations show that this Court by relying upon the earlier decision, wherein the reference of another decision of the Division Bench is also made, the contention raised by the Insurance company to avoid liability on account of remarriage of wife of the deceased was expressly negatived.
10. However, Mr.Parikh, learned counsel appearing for the respondent insurance company by relying upon the decision of the Apex Court in the case of Anju Mukhi & Anr. v. Satish K. Bhatia & Ors. reported at (2010) 15 SCC 630 contended that the Apex Court had approved the view of the High Court of Madhya Pradesh in the case of parties before the High Court reported at 1998 ACJ 400.
11. The examination of the said contention shows that the High Court of Madhya Pradesh in its decision at paragraph 3, recorded the fact that the income of the husband was Rs.1,500/ per month and further took note of the fact that the wife of the deceased had admitted in the cross examination that she is happy with the marital life. It is in light of the facts and circumstances, the view was taken by the High Court was not interfered with by the Apex Court. In the present case, no evidence has come on Page 14 of 17 C/FA/3828/2007 JUDGMENT record about the income of the husband nor the satisfaction of the wife of the deceased about the quality of life after remarriage. Under these circumstances, the said decisions are of no help to the learned counsel for the insurance company.
12. No evidence was produced before the Tribunal that the deceased was paying income tax or was filing income tax return or not. In the year 19951996 and 19961997, the exempted income limit was of Rs.40,000/ So per month, it may be around Rs.3250/. As against the same, if the Tribunal has assessed the income of Rs.3,000/ and has considered the prospective income at Rs.4,500/ such view cannot be said to be unreasonable on the part of the Tribunal which may call for interference. However, the Tribunal committed two apparent errors. One is for considering the deduction towards personal expenses and another is for application of the multiplier. As per the decision of the Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation & Anr. reported at (2009) 6 SCC 121, 1/3rd of the amount was required to be deducted towards personal expenses and therefore, if 1/3rd of the amount is deduced towards personal expenses, the loss of income would be Rs.3,000/ per month being 2/3rd of Rs.4,500/ and not Rs.2,000/, as assessed by the Tribunal. The multiplier of 15 is applied by the Tribunal. Whereas, as per the decision of the Apex Court in the case Sarla Verma (supra) appropriate multiplier is 18 since the deceased Page 15 of 17 C/FA/3828/2007 JUDGMENT was in the age group of 21 to 25 years. Accordingly, the amount of compensation would come to Rs.6,48,000/ (Rs.36,000/ per year X
18). Whereas the Tribunal has erroneously assessed the said amount at Rs.3,60,000/.
13. The Tribunal has awarded no amount towards loss of estate and has only awarded amount of Rs.15,000/ towards loss of consortium and loss of love and affection and has awarded only Rs.3,000/ towards funeral expenses which we find it on lower side. Considering the facts and circumstances, we find it appropriate to award an amount of Rs.50,000/ towards loss of estate, loss of consortium and loss of love and affection, and Rs.5,000/ towards funeral expenses as per the cost structure prevailing in the year 1995. The other amount awarded by the Tribunal of Rs.3,000/ towards transportation expenses calls for no interference.
14. In view of the aforesaid observation and discussion, the total amount towards economic loss and other heads of compensation would come to Rs.6,48,000/ + Rs.50,000/ + Rs.3,000/ + Rs.5,000/ = Rs. 7,06,000/. Out of the aforesaid amount, since 50% liability is held to be of the driver of the motorcycle, which comes to Rs.3,53,000/. As per the view taken by the Tribunal, the apportionment between mother and wife of the deceased was 50% each and as the mother of the deceased has not preferred any Page 16 of 17 C/FA/3828/2007 JUDGMENT appeal and the appeal has been preferred by the appellant only, wife of the deceased, she would be entitled to the compensation of Rs.1,76,500/ being 50% of the total amount of compensation as observed earlier. The interest awarded by the Tribunal is at 7.5%, which we find it to be reasonable.
15. Hence, it is observed and held that the appellantoriginal claimant would be entitled to compensation of Rs.1,76,500/ as against Rs.95,250/ already awarded by the Tribunal. Hence, the additional compensation would be Rs.81,250/ plus interest at the rate of 7.5% p.a.
16. Appeal is partly allowed to the aforesaid extent.
Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) (G.B.SHAH, J.) bjoy Page 17 of 17