Gujarat High Court
Thaker Kannaiylal Ramanlal Through ... vs Jivanji Joitaji Thakore on 4 December, 2024
NEUTRAL CITATION
C/FA/4449/2009 ORDER DATED: 04/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4449 of 2009
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THAKER KANNAIYLAL RAMANLAL THROUGH LEGAL HEIRS & ORS.
Versus
JIVANJI JOITAJI THAKORE & ORS.
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Appearance:
APPEARANCE DELETED for the Appellant(s) No. 1
MS TEJAL A VASHI(2704) for the Appellant(s) No. 1.1,1.2,1.3,1.4
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/12/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - original claimants being aggrieved and dissatisfied with the judgment and award dated 03.08.2009 passed by the Motor Accident Claims Tribunal, Mehsana in Motor Accident Claim Petition No.1204 of 2005.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on 08.09.2005 at about 9.00 am, deceased Kanaiyalal Thaker was coming as pillion rider with one Kantilal Patel and when they reached opposite to Milk Distribution Center, said Kantilal dropped the deceased and deceased was crossing the road, at that time, at about 9.50 am, opponent No.1- driver of Tanker No.GJ-2Y-6306 owned by opponent No.2 drove the tanker in rash and negligent manner and dashed with the deceased. On Page 1 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined account of said road accident, the deceased sustained severe injuries and succumbed to the injuries. Therefore, offence to that effect is registered before the Mahesana Taluka Police Station vide FIR being I-C.R.No.233 of 2005. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.6,00,000/-. The learned Tribunal vide impugned judgment and award dated 03.08.2009 has granted compensation to the tune of Rs.1,54,000/-. Hence, the present appeal.
3. Learned advocate Ms.Tejal Vashi appearing for the appellants - claimants being kith and kin of the deceased Kanaiyalal Thaker assails the impugned judgment and award on the ground that at the time of road accident the deceased was pedestrian as he was crossing the road and yet the learned Tribunal assessed 30% negligency of him, which is complete erroneous approach on the part of the learned Tribunal. She would further submit that the pedestrian cannot be attributed any negligence in causing the road accident. The tanker driver admittedly was riding the tanker in rash and negligent manner with over speed endangering human life dashed with the deceased crossing the road without applying proper care and therefore, tanker driver is 100% negligent in causing the road accident. Yet learned Tribunal on its erroneous approach countenanced 30% negligence of the claimant which deserves to be quashed and set aside.
4. Another argument of learned advocate Ms.Vashi is that learned Tribunal did not consider the documentary evidence produced on record which contributes in proving the income of Page 2 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined the deceased. She would further submit that learned Tribunal has taken revenue record of only one agricultural land and did not notice revenue record of other agricultural lands owned by the deceased while arriving at the multiplicand for deciding dependency loss. She would further submit that claimants have examined one Mr.Darshan Thaker being son of the deceased at Exhibit-19 to prove income of the deceased. In addition thereto, claimants have examined one Mr.Kantilal Patel at Exhibit-25 who is stated to be administrator of Ramji Mandir and Ganpati Mandir at Palavasna. He deposed that deceased was working as 'Pujari' in both the Mandir and was earning good amount of income by doing 'Pujari' work. She would further submit that deceased was earning from Dudh Sagar Dairy as he was depositing milk. Apart from that at Exhibit-46, the Sarpanch of Palavasana Gram Panchayat on its letter pad certified that Kantilal Patel and Jayantilal are the administrators of the Ramji Mandir and Ganpati Mandir. She would submit that if collectively this evidence are taken into consideration the income assessed by the learned Tribunal proved to be on lower side. She would further submit that the evidence of the witness Patel Kantilal that deceased was Pujari of Ramji Mandir and Ganpati Mandir has gone unchallenged and therefore it has to be believed by the learned Tribunal and also the certificate issued by the Sarpanch since has not been questioned by the other side, said certificate also to be believed by the learned Tribunal. However, serious error has been committed by the learned Tribunal in not considering all these evidence on record to assess the income of the deceased and to further assess the loss of dependency.
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5. Another argument canvassed by learned advocate Ms.Tejal Vashi is that learned Tribunal has also committed serious error in not following the law laid down by the Hon'ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi
- 2017 (16) SCC 680, to grant compensation under the non- pecuniary heads. She would further submit that application of multiplier being 6.5 by learned Tribunal was never recognized by any statute or any formula to calculate the compensation, as also the deduction of personal and pocket expenses more than 1/4 th. In view of the above, she submits that the appeal deserves to be allowed and compensation is to be enhanced by recalculating it.
6. On the other hand, learned advocate Mr.Rituraj Meena appearing for the Insurance Company supports the finding of the learned Tribunal as far as assessment of the income is concerned. For the rest of the submissions of learned advocate Ms.Vashi, he would submit to pass necessary order in line of judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra).
7. I have heard learned advocates for both sides and perused the record and proceedings of the case and applied mind minutely.
8. The first fault found in the impugned judgment and award is that the learned Tribunal has assessed the self negligence of the deceased to the tune of 30% and deducted the amount of the compensation equal to such negligence from the total amount of compensation. Apt to note that the driver of the offending vehicle Tanker did not enter into the witness box and did not speak Page 4 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined about the manner in which the accident took place. The Insurance Company who has obtained permission under Section 170 of the Motor Vehicle Act, 1988 to contest the claim petition on all the grounds available to the owner and driver, did not lead evidence of the driver or any other eye witness. It is therefore fit case to draw adverse inference against the driver of the tanker. The principle of res ipsa liquitor would apply in the present case since no eye witness of the road accident has been examined. The FIR is given by Shri Kantilal Patel. According to the FIR (Exhibit-
26), the deceased was pillion rider in the two wheeler driven by first informant. The first informant dropped the deceased on the road near Nilkanth Cement and was about to cross the road, at that time, the tanker driven by its driver came in rash and negligent manner endangering human life had dashed with the pedestrian and left the deceased dead on the spot. The panchnama drawn post accident is produced at Exhibit-28 noted blood stains on the road which has width of 60 ft. It is sufficient evidence to say that driver of the tanker was fully negligent in causing the road accident and therefore attribution of 30% negligence to the deceased in causing the road accident is totally erroneous approach on the part of the learned Tribunal and it deserves to be set aside.
9. This Court in case of United India Insurance Company Limited vs. Yakum Alibhai Molvi and others, being First Appeal No.2355 of 2006, held in para 8 and 9 held as under :
"8. Regard being had to the rival submissions of learned advocates appearing for the respective parties, it is an admitting position that driver of the fiat car died in the road accident. The driver of the luxury car who is the best person and having specialized knowledge of all the Page 5 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined relevant facts of road accident in question and is duty bound to explain the accident did not enter into the witness box. In the present case, neither written statement was filed by luxury bus driver to contend that the averments made by the claimants are not true; nor the driver of the luxury bus was examined to deny such averments. In this circumstance, the principle of "res ipsa loquitur" would be attracted. (See 1976 (1) SCC 793 The Krishna Bus Services Ltd., vs Smt. Mangli & Ors.)
9. What further appears that driver of the luxury bus did not enter into witness box to explain the method and manner in which the accident took place who having specialized knowledge certainly permit the tribunal to draw adverse inference against him. In Iswar Bhai C. Patel & Bachu Bhai Patel vs Harihar Behera & Anr [1999 (3) SCC 457], the Supreme Court has held in paragraph 17 as under:
"17. Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act."Page 6 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024
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10. Thus, looking to the fact that driver of the tanker did not enter into witness box and deceased was pedestrian, I find that evidence on record does not indicate that the deceased was negligent in causing the road accident. In view of that finding of learned Tribunal to attribute 30% negligence to deceased causing road accident deserves to be set aside and accordingly, it is set aside.
11. Learned advocate Ms.Vashi has made two more submissions. She submits that learned Tribunal has not taken into consideration oral evidence of Mr.Kantilal Patel who said that he is administrator of the Ramji Mandir and Ganpati Mandir as well as certificate issued by Sarpanch of Palavasana Gram Panchayat at Exhibit-46. It is also submitted that since statement made by witness in chief examination has gone unchallenged, the statement has to be believed to countenance that deceased was Pujari and was earning sizeable income. To appreciate submission let refer oral evidence of Mr.Kantilal Patel (Exhibit-
45). In the cross-examination it is admitted by the witness that he has no documentary evidence which shows that deceased was Pujari of Ramji Mandir and Ganpati Mandir; he also admitted that he has no documentary evidence to prove that deceased was earning income of Rs.20,000/- from working as Pujari and he gets Rs.351/- from each home in village Palavasana. It is true that claim of Mr.Kantilal Patel that he is administrator of Ramji Mandir has not been questioned in the cross-examination, but that will not discharge his burden to prove that he is administrator of the Ramji Mandir. Merely the claim made by witness cannot be considered as gospel truth without being Page 7 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined backed by any evidence more particularly when he is claiming that he is holding some position in Ramji Mandir and Ganpati Mandir. Reading of Section 101 of Evidence Act clearly postulates that person who asserts some fact, has to prove it by documentary evidence. Thus, submission of learned advocate Ms.Vashi that since claim of witness Kantibhai that he was administrator of two Mandir has gone unchallenged, ought to have been believed true, cannot be accepted. Such submission is contrary to provisions of Evidence Act. Exhibit-46 is certificate issued by Sarpanch of Palavasana Gram Panchayat on the letter- head of Gram Panchayat certifying that Kantial Manilal and Jayantilal were administrators of the Ramji Mandir and Ganpati Mandir. This kind of writing barely has any legal presence. Under the Panchayats Act, the Sarpanch has no authority to issue such kind of certificate on the letter-head of Gram Panchayat as well as he cannot brand any person as administrator of any Mandir. Therefore, the oral evidence of Kantilal Manilal and documentary evidence at Exhibit-46 barely hold evidentiary value to prove the income of the deceased.
12. The second limb of argument of learned advocate Ms.Vashi is that the learned Tribunal has not considered the revenue record of various agricultural lands hold by the deceased produced from Exhibit-35 to 41. On perusal of the said evidence, it indicates that deceased Kanaiyalal was holding agricultural lands jointly with seven other co-owners. Therefore, he is not sole owner of the agricultural land. Apart from that it is settled principle of law that whatever agricultural produce derived from agricultural field will continue to receive by the claimants even after death of deceased Kanaiyalal. Two contradictory stands can Page 8 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined be noticed at this juncture. On one hand, it is said that deceased was Pujari in village Palavasana, District Mahesana and cultivating agricultural lands situated in Sinhor, District Vadodara. He cannot perform both the act simultaneously. It is difficult to do both the work at a time. But at the same time it cannot be denied that he was earning income from the agricultural land. In nutshell, evidence at Exhibit-35 to 41 can be taken into consideration for granting compensation for supervisory loss. On conjoint appreciation of the entire evidence on record, this Court comes to conclusion that insufficient evidence is produced by the claimants to prove the income of the deceased.
13. The PM report produced at Exhibit-29 shows the age of the deceased as 60 years and learned advocate Ms.Vashi also submitted that age of deceased was 60 years at the time of road accident. Now taking the age of the deceased as 60 years, being senior citizen and also taking the aspect that there is no evidence produced by the claimants to prove the income of the deceased, there is no option left with the Court but to take up rate of minimum wages to compute just and fair compensation. The rate of minimum wage at the relevant time was Rs.2,500-/. While taking said figure as income of the deceased and adding supervisory loss of agricultural fields, the amount of income of the deceased would come to Rs.3,000/- per month and Rs.36,000/- per year. In view of judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra), the deduction for personal and pocket expenses of deceased would be 1/4 th considering number of dependent being four. As there is no dispute about the age of the deceased being 60 years, 10% rise of the income is Page 9 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined required to be granted for calculating loss of future prospects. The multiplier of 9 would be applied by following the ratio laid down by the Hon'ble Supreme Court in case of Pranay Sethi (supra). Out of the four claimants, claimant No.1 is widow and claimants Nos.2 and 4 are daughters and claimant No.3 is son. So claimant No.1 would be entitled to get spousal consortium and claimant Nos.2 to 4 are entitled to get parental consortium. As per the judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra), each claimant is entitled to get compensation for loss of consortium of Rs.48,400/-. Alike for loss of estate and funeral expenses, the claimants would be entitled to get Rs.18,150/- under each head.
14. In the recent judgment in case of K. Ramya and others vs. National Insurance Company Limited and another - 2022 Live Law (SC) 816, the Hon'ble Supreme Court has held that Motor Vehicle Act, 1988 is a beneficial and welfare legislation which seeks to provide compensation as per the contemporaneous position of an individual which is essentially forward-looking. It is further held that :
"11. At the outset, it is pertinent to reiterate the concept of 'just' compensation under Section 168 of the Act. It is a settled proposition, now through a catena of decisions including the one rendered by the Constitution Bench in Pranay Sethi that compensation must be fair, reasonable and equitable. Further, the determination of quantum is a fact-dependent exercise which must be liberal and not parsimonious. It must be emphasized that compensation is a more comprehensive form of pecuniary relief which involves a broad-based approach unlike damages as noted by this court in Yadava Kumar v Divisional Manager, National Insurance Co. Ltd. The discussion in the abovementioned cases highlights that Tribunals under the Act have been granted reasonable flexibility in determining 'just' compensation and are not bound by Page 10 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024 NEUTRAL CITATION C/FA/4449/2009 ORDER DATED: 04/12/2024 undefined any rigid arithmetic rules or strict evidentiary standards to compute loss unlike in the case of damages. Hence, any interference by the Appellate Courts should ordinarily be allowed only when the compensation is 'exorbitant' or 'arbitrary'.
12. Furthermore, Motor Vehicles Act of 1988 is a beneficial and welfare legislation that seeks to provide compensation as per the contemporaneous position of an individual which is essentially forward-looking. Unlike tortious liability, which is chiefly concerned with making up for the past and reinstating a claimant to his original position, the compensation under the Act is concerned with providing stability and continuity in peoples' lives in the future. Keeping the abovementioned principles in the backdrop, we now move on to the facts at hand."
14.1 Therefore, total compensation would be as under, which the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 2,67,300/-
=Rs.3,000/- + 300 (10% rise)
=Rs.3,300/- minus 1/4 for personal exp.
=Rs.2,475/- x 12 months x 9 multiplier
Consortium : 1,93,600/-
Spousal consortium Rs.48,400/- plus
Parental Rs.48,400/- x 3 claimants
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Total 4,97,200/-
Less: Amount already awarded by Tribunal 1,54,000/-
Additional amount which is awarded 3,43,200/-
15. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs.3,43,200/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
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16. For the reasons recorded above, the following order is passed.
16.1 The present appeal is partly allowed.
16.2 The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order.
16.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
16.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
16.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 12 of 12 Uploaded by GAURAV J THAKER(HC00951) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:27:24 IST 2024