Gujarat High Court
Gujarat State Road Transport ... vs Chandrikaben Keshubhai Ramani ... on 13 September, 2024
NEUTRAL CITATION
C/FA/130/2008 JUDGMENT DATED: 13/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 130 of 2008
With
R/FIRST APPEAL NO. 131 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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
Versus
CHANDRIKABEN KESHUBHAI RAMANI (DECD)THR'HEIRS & LR & ORS.
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1.1,1.2,1.3,1.4
RULE NOT RECD BACK for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/09/2024
COMMON ORAL JUDGMENT
1. The present First Appeals, under Section 173 of Motor Page 1 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined Vehicles Act, 1988, are preferred by the appellant-GSRTC, being aggrieved and dissatisfied with the common judgment and award dated 7.8.2006 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim Petition No. 271 and 272 of 2000, by which the Tribunal has awarded compensation of Rs.3,92,000/- and Rs.4,06,000/- with 7.5% per annum interest to the claimant/s, holding opponents nos.1 and 2, liable jointly and severally. The opponents nos.3 and 4 were exonerated from the liability.
2. Brief facts of the case are as under:
2.1 The claimants filed the claim petition stating that on 26.6.1999, the deceased Keshubhai Hirjibhai Ramani and deceased Chandrikaben Keshubhai Ramani were going by Maruti Car No.GJ.1K.2839 and at about 4.15 p.m. when they reached near Atkot cross road on Atkot-Jasdan road, at that time, driver of ST Bus No.GJ.18V.634 came by driving his bus will full speed and also in rash and negligent manner and dashed his bus from opposite side due to which both the deceased sustained serious bodily injuries and succumbed to the injuries; therefore, the claim petitions were filed by the claimants claiming compensation.Page 2 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024
NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined 2.2 Notices were served to the opponents. Opponents filed the written statements denying the contents of the claim petition. The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.3 Being aggrieved and dissatisfied with the common impugned judgment and award passed by the Tribunal, the present appeal is preferred by the appellant-GSRTC.
3. Learned advocate for the appellant-insurance company has assailed the impugned judgment and award on the ground of negligence and quantum. She vehemently submitted that the learned Tribunal has erred in holding the ST bus solely negligent for the accident without any evidence and that the manner in which the accident had taken place, the car driver is also negligent for the accident; that the Maruti car driver was also coming in full speed and while overtaking a rickshaw, collided with the ST bus and therefore the car driver is also negligent for the accident; that it is the duty of all the drivers plying any vehicle on road to take care and caution and if such care and caution would have Page 3 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined been taken by the car driver, the accident would have been avoided.
4. On the point of quantum, she submitted that deceased Chandrikaben was house wife and therefore the learned Tribunal erred in considering the income of the deceased at Rs.2,000/- and even though there is no proof with regard to agricultural income, the income is considered at R.2,000/- of the deceased Keshubhai and has also erred in awarding the compensation under other heads. She also submitted that one of the claimants is brother of the deceased and therefore he is not entitled to compensation as he cannot be said to be dependent of the deceased. Therefore, she submitted that even on that count, the compensation is required to be reduced proportionately. She, therefore, submitted to allow these appeals on both these counts.
5. Per contra, learned advocate for the claimants has submitted that the impugned judgment and award is just and proper and need not be interfered with. He relied on the judgments in the cases of Gurunath P Naik and Others V/s Narendra Govind Chodankar and others reported in 1996 ACJ 805, Vimal Devi and others V/s Hari Singh and others reported in 2004 ACJ 1586 and in the case of The Oriental Insurance Company Limited V/s Raman Purshothaman Nair Page 4 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined decided on 20.5.2022 in First Appeal No.2239 of 2015 on the points of negligence, the definition of dependents and legal representatives as per the MV Act and adverse inference to be taken against the negligent driver. He, therefore, submitted to dismiss these appeals.
6. Learned advocate for respondent no.4-insurance company of the Maruti car has submitted that there cannot be strict proof in accidental cases and the negligence should be decided on preponderance of probabilities and the FIR and panchanama are to be seen and also the deposition of the witnesses, and on discussing all this evidence, it is clearly proved that the maruti car driver was going on the correct and the ST bus driver came on wrong side and dashed with the maruti car and caused the accident and therefore, the learned Tribunal has held the ST bus driver negligent for the accident and therefore the driver and owner of the ST bus were made liable to pay the amount and exonerated the owner and insurance company of the maruti car. He submitted that there is no scope of any interference in the impugned judgment and award and therefore prayed to dismiss these appeals.
7. I have considered the submissions made by the respective parties. I have perused the record and proceedings. Page 5 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024
NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings of the parties before the Tribunal.
8. The first ground raised by the appellant is that of negligence and that the ST bus driver should not be solely negligent for the accident. In this regard, the claimants have examined claimant no.3 that she has no personal knowledge about the accident but the deceased were travelling in the car and due to the rash and negligent driving of the driver of offending ST bus, the accident had taken place. The FIR and chargesheet is also filed against the driver of the ST bus. The ST bus driver, though has filed the written statement, has not entered into the witness box, to rebut the say of the claimants though he could be the best person to depose about the correct facts of the accident. As the driver of the maruti car and passenger driving in the maruti car, both have expired in the accident and therefore there is no question of examining the driver of the maruti car. Further, from the panchanama of scene of offence, it is evident that by going on wrong side, the ST bus dashed with maruti car. Therefore, adverse inference can be drawn against the ST bus driver.
9. In this backdrop of circumstances, if the judgments Page 6 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined relied on by learned advocate for the claimants is seen, then it is held in the case of Gurunath P Naik (supra), in paragraph no.8 as under:
"8. In our view, there is no place for importing the doctrine of contributory negligence in the present case and suffice to mention that the road on which the accident took place is a one-way street. This being so, the original claimant who was riding his motor cycle was entitled to travel and take the curve either on his left side as also on his right side. Merely because the accident took place by which it is clear that the motor-cyclist had to be on the right side of bus in question, that by itself does not enable the appellants to invoke the doctrine of contributory negligence. Counsel would have been right if that particular road was catering for two- way traffic. This being not the situation and in the absence of the evidence being tendered by driver of the tourist bus, there is no question of doctrine of contributory negligence."
10. In the case of Vimal Devi (supra), it is held in paragraph nos.14 and 20 as under:
"14. In defence DW-1 Shanker Singh was produced. In his deposition he stated that while he was walking on Geeta Bhawan Road another person was walking and on hearing sound of horn he stopped but the other person did not stop and he was hit by front wheel of the said bus. At that Page 7 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined time the said bus was not at a great speed. This witness could not answer various material questions put to him in cross-examination. There is no other eye witness of the occurrence produced by either of the parties. PW-5 Ashwini Kumar stated that he did not go to the police for making statement of the occurrence because he did not want to get himself involved with the police case. The police investigated the case and filed charge-sheet against the driver of the said bus. A certified copy of F.I.R., charge sheet, Site map, Site inspection note and other documents were placed on record. In the Site map the place of the accident is shown to be on the extreme left side to the road, which corroborates the testimony of PW-5 Ashwini Kumar. It is contended by learned counsel for the owner and driver that the Tribunal erred in relying on the testimony of PW-5 Ashwini Kumar, who was not examined in criminal case by the police and, therefore, he cannot be said to be a witness of occurrence. In the cross-examination this witness categorically stated that he was a passenger of the offending bus when the said bus caused the accident. However, he did not make a statement to the police as he-did not want to be involved in the police case. This witness is a direct witness, who has seen happening of the accident as he was a passenger of the offending bus. Merely because this witness happened to admit that he has not given a statement to the police could not be conclusive of the fact that he was not a witness of the occurrence. This witness Page 8 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined categorically stated on oath before the Tribunal that the deceased was walking on left side of the road with his back towards the offending bus. The offending bus was driven at a great speed, rashly and negligently knocked down the deceased and in that situation the accident speaks its own story and in absence of proper explanation on the part of the driver of the bus maxim 'res ipsa loquitur' is fully attracted. It is a well known fact that persons from public are not inclined to appear as a witness in a criminal case instituted by the police in order to avoid frequent attending of the court as they are busy in their own affairs. But merely because the police had not examined him as a witness his testimony cannot be disbelieved. This witness has not axe to grind by speaking against the driver of the offending bus as he is not related to even the deceased and the claimants and, therefore, he is absolutely an independent and disinterested person. There is no infirmity in the statement of PW-5. More so, the statement of this witness further finds corroboration from the defence witness produced by the owner, DW- 1 Shanker Singh, who also deposed that while he was walking on Geeta Bhawan Road, another person was also walking by the side of him and on blowing horn of the said bus he stopped but other person did not stop and he was hit from behind by front wheel of the said bus. Thus, the fact that the deceased was walking ahead of the bus on his correct side of the road i.e. left side of the road when he was hit from behind by the said bus and Page 9 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined sustained injuries which ultimately resulted fatal is amply proved.
20. Having considered the pleadings and the evidence of the parties, I am of the considered opinion that the conclusion reached by the Tribunal holding the bus driver responsible and negligent for the said accident cannot be said to be erroneous and, therefore, I find no error in the finding recorded by the Tribunal holding the bus driver Hari Singh negligent for the said accident."
11. Therefore, in view of the above and in view of the evidence on record, more particularly, the FIR and panchanama, the chargesheet and also on the principle of res ipsa loquitor, no other view can be taken other than that taken by the learned Tribunal holding the driver of the ST bus solely negligent for the accident. Therefore, these appeals are required to be dismissed on this ground.
12. As regards the submission that the elder brother is not dependent on the deceased, reference is required to be made to the judgment of this Court in the case of Raman Purshothaman Nair (supra), wherein this Court has in detail discussed the definition of legal representation and then concluded that the brother/sister is legal representative of the deceased and held in paragraph 6 as under: Page 10 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024
NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined "6. I have considered the rival submissions made at the Bar. I have considered the Section 166 of the Motor Vehicles Act. I have considered various judgments, more particularly, the judgment which squarely decides the issue about who can be considered as legal representative in view of the language of Section 166 of the Motor Vehicles Act.
The judgment of the Hon'ble Apex Court in the case of Smt. Manjuri Bera (supra) where the Hon'ble Apex Court has categorically held that married daughter is entitled to get compensation though she is not dependent on the deceased, but she is legal representative under Section 166. Another judgment which is also required to be considered is Montford Brothers (supra) where the Supreme Court has held to the extent that even collective entity may claim compensation as legal representative by considering the provisions of the Fatal Accident Act, 1855. The Hon'ble Apex Court has also considered once again the issue in the case of N. Jayasree (supra). Para 21 of that judgment is reads as under:
"21. Coming to the facts of the present case, the fourth appellant was the motherinlaw of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the motherinlaw to live with her daughter and soninlaw during her old age and be dependent upon her Page 11 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined soninlaw for her maintenance. Appellant no.4 herein may not be a legal heir of the 8 AIR 1987 Pat 239 deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition.
(II) Whether the High Court was justified in applying a split multiplier?"
Therefore, in that case, the mother-in-law is considered as the dependent of the son-in-law. The judgment rendered by this Court in the First Appeal No. 1792 of 2020 dated 09.08.2021 in the case of Bajaj Allianz General Insurance Co. Ltd. Pune v. Thakor Jayantibhai Piraji, this Court has held in the following terms in Paras 11.1, 11.2 and 12, which are relevant and being reproduced as under:-
"11.1 The law is well settled that the Motor Accident Act is a beneficial legislation enacted with the object to provide monetary relief to the victim or their family. The Hon'ble Supreme Court from time to time in its decisions referred to above has held that the term 'legal representative' is required to be given a wider interpretation for the purpose of Chapter XII of the Motor Vehicle Act and the interpretation should not be confined only to the spouse, parents and children of the deceased. The Act therefore calls for a liberal and wider interpretation to serve the Page 12 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined underlying purpose of the enactment and fulfillment of its legislative intent.
11.2 To maintain a claim petition it is sufficient for the claimant to establish that there is loss of dependency and every legal representative who suffers on account of death of a person in a motor vehicle accident have the remedy for realization of compensation.
12. In view of the above settled legal position, we are of the view that the opponent no.6 being the real sister of the deceased - Rakesh Shantilal Sharma is entitled to claim compensation in her capacity as a legal representative. We are not inclined to interfere with the findings recorded by the Tribunal. In our opinion, the Tribunal has taken into consideration all the above aspects in accordance with the law as well as per the ratio laid down by the Supreme Court in various decisions."
This Court has considered that real sister of the deceased is entitled to claim compensation in our capacity as legal representative. Therefore, I found that the Tribunal has not committed any error by considering the present claimants as legal representative."
13. Therefore, the submission of learned advocate for the appellant that one of the claimant who is brother of the Page 13 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024 NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined deceased is not dependent, cannot be accepted.
14. With regard to the quantum aspect, the claimant no.3 has deposed and stated that the deceased Chandrikaben and deceased Keshubhai was hale and healthy and aged about 35 years at the time of accident and was earning more than Rs.5,000/- per month at the time of accident. The accident is of the year 1999. Though no evidence is produced to substantiate the income, considering the nature of work done by the deceased and the agricultural land in the name of deceased by way of village form no.7 x 12, the learned Tribunal has assessed the income of Rs.2,000/- per month, in which no error is committed by the learned Tribunal. Looking to the age of the deceased, the prospective income is added and personal expenses are deducted and thereafter multiplier is applied. The same is in line with the ratio laid down by the Hon'ble Apex Court in the cases of National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680, Sarla Verma V/s Delhi Transport Corporation reported in (2009)6 SCC 121 and Magma General Insurance Company Ltd. V/s Nanu Ram and Others reported in (2018)18 SCC 130 and therefore no interference is required.
15. In view of above, the following order is passed. Page 14 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024
NEUTRAL CITATION C/FA/130/2008 JUDGMENT DATED: 13/09/2024 undefined 15.1 The present appeals are dismissed with no order as to costs.
15.2 The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
15.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 15 of 15 Uploaded by U. SRILATHA(HC00185) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 21:01:03 IST 2024