Gujarat High Court
Bhagvatiben Bhikhabhai Shambhudas ... vs Prabhatsinh Fuljibhai Parmar on 26 April, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2984/2021 JUDGMENT DATED: 26/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2984 of 2021
With
R/FIRST APPEAL NO. 4191 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 4191 of 2019
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022
In R/FIRST APPEAL NO. 4191 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK sd/-
==============================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
BHAGVATIBEN BHIKHABHAI SHAMBHUDAS PATEL
Versus
PRABHATSINH FULJIBHAI PARMAR
==============================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 26/04/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Feeling aggrieved and dissatisfied with the impugned Page 1 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 judgment and award dated 2.4.2019 passed in MACP No.464 of 2013 by the Motor Accident Claims Tribunal (Auxi), Gandhinagar, one of the Insurance Company has preferred First Appeal No.4191 of 2019 and application for additional evidence and the claimants have preferred First Appeal No.2984 of 2021 for enhancement of compensation under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2.0. Following facts emerge from the record of this appeal:
2.1. That the accident took place on 1.10.2013 at about 12 pm on Kanpar- Rangpur Road. It is the case of the claimants that Bhikhabhai Shambhudas Patel was traveling in Indica Car bearing registration No.GJ-6-YY-3352 and when it reached scene of occurrence, one Mini Bus bearing registration no. GJ-1-BV-
9529 being driven in rash and negligent manner dashed with the front side of the Indica Car, because of which, Bhikhabhai Patel sustained serious injuries and was admitted to the hospital at Bhavnagar and died during the treatment. An FIR was lodged with the jurisdictional police station at Exh.54. It was the case of the original claimants that deceased Bhikhabhai Patel was a pensioner and getting pension of Rs.36076/- from the Government of Gujarat and was also working as consultant for which he used to be paid Rs.2500/- per day basis for the duration of 300 days serving at Narmada Water Resources Water Supply and Kulpsar Department, Government of Gujarat and the present claim petition was filed under Section 166 of the Act and claimed compensation of Rs.1,00,00,000/-. The wife of the deceased Bhagvatiben Patel was examined at Exh.39 and claimants relied upon the following documentary evidence:
Page 2 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 Particulars Exh. No. Complaint 54 Panchnama of scene of accident 55 Final Form / Report 56 Inquest Panchnama 57 Postmortem Report 58 Medical Bills of Rs.11869 59 Income Tax Return for AY 2013-14. 36/11 R C Book of Indica Car 36/12 Insurance Policy of Indica Car 36/13 RC Book of Mini Bus 60 Insurance Policy of Mini Bus 61 Office Order No. KLP-72102 Kalpasar dated 36/16 8.8.2012 Resolution of KLP-112004-190 Kalpasar 41 Sachivalaya, Gandhinagar dated 3.12.2011 Form 3 issued by Under Secretary, Narmada 42 Water Resources, Water Supply and Kalpsar Department, Gandhinagar Pension Payment Slip 43 Bill Payment for the month of August and 44 September 2012 of Rs.83250/-
Bill Payment for the month of October and 45 November 2012 Rs.92250/-
Bill Payment for the month of December and 46 January 2012-13 Bill Payment for the month of February and 47 March 2013 Bill Payment for the month of April 2013 48 Bill Payment for the month of June 2013 49 Bill Payment for the month of July and August 50 2013 PAN Card 62 Birth Certificate 63 Order No.KLP-92011-PMG-19-Kalpsar dated 51 31.8.2012 Page 3 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 2.2. The insurer of Indica Car examined one Shri Bipinchandra Parmar from the office of RTO, Vadodara at Exh.69 and also relied upon the driving license at Exh.70. The Tribunal relied upon the FIR at Exh.54 and panchnama at Exh.55 as well as postmortem note at Exh.58 and came to be conclusion that the driver of both the vehicles i.e. Mini Bus bearing registration No.GJ-1-BV-9529 and Indica Car bearing No.GJ-6-YY-3352 were composite negligence in the ratio of 50:50.
2.3. The Tribunal considered the evidence of income as well as cross examination of the wife of the deceased at Exh.39 and considering bill payment at Exh.50 being Rs.1,03,500/- as raised and divided the same into two months and determined the income of the deceased at Rs.51750/-per month and after following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680, applied the multiplier 9 and granted 50% prospective income and after deducting 1/3rd towards personal expenses, awarded a sum of Rs.21,42,504/- as compensation under the loss of dependency and Rs.70,000/- towards conventional head including funeral expenses and thus while partly allowing the claim petition awarded a sum of Rs.22,12,504/- with 9% interest from the date of filing of claim petition till its realization. As aforesaid, Insurance Company of the Indica Car - respondent no.4 has filed appeal on the question of liability and negligence whereas original claimants have preferred appeal for enhancement of compensation. As observed herein above, application is filed for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
3.0. Heard Mr. Hiren Modi, learned advocate for the original Page 4 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 claimants and Mr. Mazmudar, learned advocate for the appellant Insurance Company i.e. insurer of Indica Car and Mr. Vibhuti Nanavati, learned advocate for the insurer of Mini Bus.
4.0. Mr. Modi, learned advocate for the original claimants submitted that the Tribunal has rightly considered the document at Exh.50 to determine the income, however, while taking the said amount of Rs.51750/- as base has took it twice which is not obvious error. According to Mr. Modi, income of the deceased based upon Exh.50 as well as pension papers is Rs.51750/- and after applying ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 as well as Pranay Sethi (supra), the appropriate amount of compensation next to be re-calculated under the head of loss of dependency. Mr. Modi on the aforesaid ground submitted that appeal filed by the claimants deserves to be allowed as prayed for.
5.0. Mr. Mazmudar, learned advocate for the appellant of First Appeal No.4191 of 2019 contended that a claim petition arising out of the same accident being MACP No.104 of 2014 was filed by the claimants before the Motor Accident Claims Tribunal at Bhavnagar, wherein the appellant as well as other Insurance Company viz. United India Insurance Company Limited was party and the Tribunal has while deciding the issue of negligence has come to the conclusion that driver of Mini Bus is sole negligent. According to Mr. Mazmudar, though said fact is known to the appellant as well as Insurance Company, the same was not brought to the notice of the Tribunal while deciding the present claim petition. Mr. Mazmudar however submitted that issue of negligence is decided between two insurance companies Page 5 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 earlier by the competent Tribunal and the same is binding and therefore, according to Mr. Mazmudar, application for additional evidence deserves to be allowed.
5.1. Mr. Mazmudar contended that the fact was known and no attempt is made to fill up any lacuna in the evidence. The fact remains that judgment by the competent Court should be permitted to be adduced as additional evidence before this Court. Mr. Mazmudar submitted that said judgment is not challenged by either of the Insurance Companies and therefore, it is binding upon both the Insurance Companies. Mr. Mazmudar contended that if said evidence have been adduced on record, the negligence which is already decided has to be applied in the instant case also and appellant Insurance Company deserves to be exonerated.
6.0. Per contra, Mr. Nanavati, learned counsel for other Insurance Company has opposed the application as well as appeal filed by the Insurance Company of Indica Car. Mr. Nanavati contended that the appellant ought not to be permitted to adduce fresh evidence at the appellate stage. Mr. Nanavati contended that such document was never produced by anybody before the Tribunal and therefore, it cannot be said that the Tribunal has committed any error. Mr. Nanavati also referring to the averment made in para 9 contended that in application it has not been explained and as to why document was not produced even though it was within the knowledge of the appellant - applicant. Therefore, evidence at the appellate stage ought not to be taken on record. On the aforesaid grounds, Mr. Nanavati contended that by filing application for additional evidence, the applicant cannot be permitted to fill up the lacuna Page 6 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 and blank or to patch up the work in the case before the Court below. In order to buttress his argument, Mr. Nanavati has relied upon the judgment of this Court in the case of State of Gujarat vs. Bharat Vijay Construction Co. reported in AIR 2021 Gujarat 58 and has submitted that appeal as well as application for additional evidence, deserves to be dismissed.
7.0. No other and further submissions/ contentions/ grounds have been raised by the learned advocates for the respective parties.
8.0. Before reverting to the appeal filed by the claimants, it would be appropriate to consider first application for additional evidence which is field under Order 41 Rule 27 of the Code of Civil Procedure. In peculiar facts of this case, it is an admitted position that applicant as well as respondent Insurance Company of the Mini Bus was well aware about the judgment of the Tribunal at Bhavangar which is sought to be placed on record by the appellant. The said judgment has become final and admittedly it has not been challenged either of the Insurance Company. As far as knowledge is concerned, as aforesaid both the Insurance Company were aware about it. The said document is very vital for deciding the issue of negligence and therefore, as provided under Order 41 Rule 27 of the Code of Civil Procedure, this Court as an Appellate Court required said document to be produced to enable it to pronounce the judgment and for substantial cause. In this set of facts, therefore, the judgment relying upon by Mr. Nanavati will not be applicable. Reference is made to the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin & Anr reported in (2012) 8 SCC 148 and therefore, in order to arrive at correct conclusion Page 7 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 on negligence, it is necessary that the judgment which is sought to be placed on record by way of additional evidence be permitted and for this reason, we deem it fit to exercise the jurisdiction under Order 41 Rule 27 of the Code of Civil Procedure. As held by the Hon'ble Supreme Court in the case of Union of India (supra) the additional evidence which is sought to be adduced adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record and hence application for additional evidence deserves to be allowed and is hereby allowed.
9.0. As far as contention on quantum is concerned, Mr. Modi learned advocate for the appellant is correct in pointing out that even though base income of Rs.51750/- is rightly taken by the Tribunal while calculating the income and applying ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the Tribunal has divided the same into half twice. Accordingly, same deserves to be re-calculated basis the income of the deceased at Rs.51750/- per month. Having come to the aforesaid conclusion, as the deceased was 59 years old and was in service would be entitled to prospective income to the extent of 15% and after deducting 1/3rd personal expenses, appropriate multiplier would be that of 9. Over and above the same, the claimants would be entitled to additional amount of Rs.70000/- under the conventional heads including funeral expenses. Having come to the aforesaid conclusion, the appellants - original claimants would be entitled to compensation as under :
"Rs.51750/- per month(income) + Rs.7762/- (15% Page 8 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 prospective income) = 59512/- - 19,873/- (1/3 towards personal expenses = Rs.39,639/- X 12 = 4,75,688 X 9 (Multiplier as the age of the deceased was 59 years) = Rs.42,81,012/-"
The claimants would also be entitled to further amount of Rs.70,000/- under different conventional head and thus, the claimants would be entitled to compensation as under:
Particulars Amount (Rs.) Future loss of dependency 42,81,012/- Conventional heads including 70,000/- funeral charges Total Compensation 43,51,012/-
10. Thus, the claimants would be entitled to compensation of Rs.43,51,012/- . As the Tribunal has awarded an amount of Rs. 22,12,504/-, the concerned respondent Insurance Company shall deposit the additional amount of Rs.21,38,508/- awarded by this Court in with 6% interest from the date of claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order.
11. As far as appeal filed by the Insurance Company of the Indica Car is concerned, in view of the above, application filed for additional evidence is allowed and same is now placed on record. One of the person who was traveling in Mini Bus sustained serious injuries and filed claim petition under Section 166 of the Act before the Motor Accident Claims Tribunal, Bhavanagar and after considering the FIR and the Panchnama of the same accident, the Tribunal at Bhavnagar came to the conclusion that the accident occurred due to sole negligence of the driver of the Page 9 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022 C/FA/2984/2021 JUDGMENT DATED: 26/04/2022 Mini Bus. The said judgment and award has become final and the same is not challenged by insurer of Indica Car or other Insurance Company viz. National Insurance Company Limited. In light of the aforesaid, therefore, finding arrived at by the Tribunal that both the drivers have held composite negligence, deserves to be modified and the based upon the finding arrived at by other Tribunal as aforesaid has become final, the Driver of Mini Bus is held to be solely negligent for the accident.
12. Thus, appeal filed by the claimants i.e. First Appeal No.2984 of 2021 is partly allowed and the appeal filed by the Insurance Company of Indica Car i.e. First Appeal No.4191 of 2019 is also partly allowed. The respondent no.4 Insurance Company - The National Insurance Company Limited shall deposit the awarded amount as well as enhanced amount within a period of 8 weeks from the date of receipt of present order. The amount which is deposited by the appellant of First Appeal No.4191 of 2019 be refunded back to it by the Tribunal forthwith with 9% interest. As the appeals are disposed of, connected Civil Applications, if any, stands disposed of. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
sd/-
(R.M.CHHAYA,J) sd/-
(HEMANT M. PRACHCHHAK,J) KAUSHIK J. RATHOD Page 10 of 10 Downloaded on : Sat Dec 24 15:39:17 IST 2022