Gujarat High Court
Gujarat State Road Transport ... vs Jitendra Alias Jignesh Alias Jigar ... on 20 October, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/FA/1825/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1825 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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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GUJARAT STATE ROAD TRANSPORT CORPORATION....Appellant(s)
Versus
JITENDRA ALIAS JIGNESH ALIAS JIGAR RAMANBHAI PANCHAL &
2....Defendant(s)
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Appearance:
MRS FALGUNI D PATEL, ADVOCATE for the Appellant(s) No. 1
MR HARSHADRAY A DAVE, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 20/10/2015
ORAL JUDGMENT
1. This appeal is filed by the State Road Transport Corporation ['GSRTC' for short] challenging judgement and award dated Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Oct 24 01:05:03 IST 2015 C/FA/1825/2005 JUDGMENT 18.05.2002 passed by the Motor Accident Claims Tribunal, Nadiyad in MACP No. 1538 of 1993. The Claim petition was filed by one Jitendrabhai Panchal, opponent No. 1 herein for a compensation of Rs. 7,50,000/- from the ST Corporation. The case of the applicant was that on 15.04.1993, he was travelling from Anand to Vadodara in a fiat car. On the highway, near Vaghasi village, he had tried to overtake a scooterist. At that time, the ST bus also tried to overtake a truck and, in the process, the two vehicles collided. According to the claimant, the scooter, due to this accident, dashed his car from behind. The claimant received serious injuries. His left eye had to be removed. There was reduction in eyesight in right eye. He also received leg injury. The claimant was a partner having 20% share in one Jay Vijay Engineering Works, which was engaged in manufacturing agriculture implements whose unit was situated at Anand.
2. The claimant was examined at Exh 38. He deposed that he had blown his horn and, when the scooter driver gave him side, he was overtaking the scooter. At that time, the truck was coming from the opposite direction and was followed by a bus. The bus driver tried to overtake the truck. He showed his headlights asking him to stop. The bus driver continued regardless and, in the process, the two vehicles collided. Regarding his income, he deposed that, he had 20% share in the partnership firm, from which, he would receive Rs. 2000/- per month in addition to salary of Rs. 1000/- paid by the firm.
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In the cross-examination, he denied the suggestion that the accident took-place because he was in the process of overtaking the scooter, due to which, his vehicle had gone on the wrong side.
3. The partnership deed was produced at Exh. 398 which was dated 12.07.1989 and showed 20% interest of the claimant in partnership. The claimant also produced acknowledgment of income tax returns or intimation of tax returns issued by the Assessing Officer under Section 143(1)(a) of the Income Tax Act, 1961 for the assessment years 1989-90 to 1991-92 filed by the partnership firm.
4. The claimant examined Dr. Vijay Shah regarding his injuries who, in his deposition, highlighted that the claimant had lost his left eye. He also had difficulty in seeing from the right eye. The right knee joint had reduced flexibility due to which he had difficulty in squatting & cross-leg position, in running and in climbing the stairs. The Doctor had issued disability certificate which was produced at Exh 51. In his assessment, the permanent disability would to the tune of 58% to the body as a whole.
In the cross examination, he admitted that in the certificate issued by Dr. Bipin there was no mention of reduced vision in the right eye.
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5. The FIR of the incident was lodged by the driver of the ST bus which was produced at Exh 23. Panchnama of the scene of accident was produced at Exh 24. Unfortunately, since the accident had taken place on a very busy national highway, the damaged vehicles had to be shifted to a side of the road to avoid traffic jam. By the time panchnama was drawn, therefore, the relevant position of the vehicles was lost. The panchnama therefore, does not help much in ascertaining the exact manner, in which, the accident might have taken place.
6. On the basis of such evidence, the Claims Tribunal attached 90% negligence on the ST bus driver and 10% on the injured claimant himself. The Tribunal believed the income of the claimant at the time of accident at Rs. 3000/- per month. Granting future increase, it was taken at Rs. 4500/- per month. The Tribunal applied disability of 58% and assessed monthly loss to the claimant at Rs. 2610/- applying multiplier of 18 actual loss of income was worked out at Rs. 5,63,760/-. Rs. 30,000/- was awarded for medical treatment, Rs. 40,000/- for loss of one eye, Rs. 20,000/- for medicines, Rs. 15,000/- towards pain, shock and suffering, Rs. 18,000/- was warded for actual loss of income of six months.
7. Having heard learned counsel for the parties and having perused the evidence on record, two areas which required some attention are the extent of negligence of the claimant and the future loss Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Oct 24 01:05:03 IST 2015 C/FA/1825/2005 JUDGMENT of income. Regarding the negligence, admittedly, the accident took place during the day time on the highway which was sufficiently wide. One of the two or may be both the vehicles had to have travelled on the wrong side of the road to cause head on collusion. Though the panchnama does not reveal the exact spot where the impact might have taken place it does so that both the vehicles were severely damaged thus, suggesting considerable speed of both the vehicles. The claimant himself had admitted that he had tried to overtake scooter going in front of him. He, however, tried to save his position by suggesting that the scooterist hit from behind after his car was dashed by the ST bus. Thus, suggesting that he had completed the process of overtaking the scooter and had come to his right side of the road when the ST bus collided. However, in the panchnama, there is no indication of any damage to his car from behind. Thus, completely belie his theory that the scooter dashed against his car from behind. Going by his deposition before the Tribunal and the nature of damage suffered by both the vehicles, as recorded in the panchnama, there appears little doubt that both the vehicles were trying to overtake the vehicles in front of them when, in the process, the accident would have occurred. Being the heavier vehicle, ST bus driver would carry a greater portion of such responsibility, nevertheless, the same cannot be to the extent of 90%. Instead, I attach the negligence on ST bus driver and the car driver in the ratio of 70:30.
8. Coming to the income of the claimant, the income tax returns Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Oct 24 01:05:03 IST 2015 C/FA/1825/2005 JUDGMENT showed a degree of fluctuation. For the assessment year 1990- 91 the total income disclosed was Rs. 90,740/-. For the assessment year 1991-92, income written was Rs. 1,08,890/-. For the assessment year, 1992-93, the firm filed a return declaring total income of Rs. 1,08,861/- for which, advance tax was also paid. The return of the income for the assessment year 1992-93 was also filed on 27.08.1992 i.e. before the date of accident. The claimant, therefore, would have received close to Rs. 22,000/- of his share of profit during the said year. There is, however, no evidence of any salary being paid to him by the firm. Adopting income of Rs. 2000/- per month, it could be increased to Rs. 3000/- for prospective consideration looking to the steady increase in the profit of the firm. However, the assessment of 58% of disability of the body as a whole was certainly on the higher side. It is true that the claimant lost his left eye. He also suffered knee injury which reduced its mobility. As per his deposition, he would travel often on a scooter for sales related work. His movement therefore, would certainly be reduced but mere loss of flexibility in the knee joint coupled with loss of one eye would not by any imagination, result in the reduced earning capacity to 60%. For want of better judgement, I may payback such disability to 40% of the body as a whole.
9. The assessment of future loss of income would, therefore, work out as under:
Page 6 of 7HC-NIC Page 6 of 7 Created On Sat Oct 24 01:05:03 IST 2015 C/FA/1825/2005 JUDGMENT Prospective income Rs. 3000/- @ 40% disability. There would be loss of Rs. 1200/- per month or Rs. 14,400/- per year. Multiplier of 17 would make future loss of income Rs. 2,44,800/-. Remaining amount remain unchanged. The total loss would, therefore, be Rs. 2,44,800/- plus Rs. 1,23,000/- would come to Rs. 3,67,800/-. Out of such amount, deducting 30% reduced amount of Rs. 1,10,340/- would come to Rs. 2,57,460/-.
10. The claimant would, therefore, receive compensation of Rs. 2,57,460/- instead of Rs. 6,09,000/- awarded by the Claims Tribunal. Appeal is allowed in part and disposed of accordingly. R & P to be transmitted back to the Trial Court.
(AKIL KURESHI, J.) Jyoti Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Oct 24 01:05:03 IST 2015