Gujarat High Court
New India Assurance Co. Ltd vs Jadeja Jitendrasinh Champaksinh & 3 on 7 April, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/568/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 568 of 2014
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NEW INDIA ASSURANCE CO. LTD.....Appellant(s)
Versus
JADEJA JITENDRASINH CHAMPAKSINH & 3....Defendant(s)
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Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
MR MA KHARADI, ADVOCATE for the Defendant(s) No. 3 - 4
MR R.K.MANSURI, ADVOCATE for the Defendant(s) No. 2
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 07/04/2014
ORAL ORDER
1. This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), at the instance of the insurance company, is directed against the judgment and award dated 31st July, 2013 passed by the Motor Accident Claims Tribunal (Auxiliary) & 2nd Additional District Court, Sabarkantha, Himmatnagar camp at Idar (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.724 of 1995, whereby the Tribunal has held the appellant as well as respondents No.1 and 2 herein to be jointly and severally liable to pay compensation of Rs.2,31,590/- with interest at the rate of 8% per annum to the respondents No.3 and 4 (original claimants).
2. The facts of the case stated briefly are that minor Page 1 of 9 C/FA/568/2014 ORDER Kantaben through her guardian filed a claim petition before the Tribunal to the effect that minor Kantaben and her father, Savji Bhemaji Pujara (the respondent No.4) had gone to Jab Chitariya village for the purpose of purchasing seeds and had stayed there overnight and on a next day, that is, on 07.07.1995, they were returning after purchasing the seeds. They had alighted at Ansol village and were going on foot towards Samera village when the respondent No.1 came from the opposite side driving a tractor at full speed and collided with Kantaben, as a result whereof she came under the wheel and sustained serious injuries. Kantaben was immediately taken to Samraji and admitted in Dr. Damor's hospital as an indoor patient. Accordingly, the claim petition came to be filed claiming compensation of Rs.2,50,000/- under different heads. However, Kantaben expired on 02.10.1996, while undergoing treatment, where after her parents (the respondents No.3 and
4) were brought on the record as claimants being the heirs and legal representatives of the deceased.
3. The Tribunal, after appreciating the evidence on record, came to the conclusion that the accident had taken place on account of the rash and negligent driving on the part of the driver of the tractor and awarded compensation of Rs.2,31,590/- to the claimants with interest at the rate of 8% per annum from the date of the filing of the claim petition till realization thereof. Being aggrieved, the insurance company is in appeal.
4. Mr. V.P. Nanavati, learned advocate for the appellant, vehemently assailed the impugned award by submitting that the Tribunal has miserably failed in appreciating the evidence Page 2 of 9 C/FA/568/2014 ORDER on record in proper perspective while coming to the conclusion that the deceased was going on foot along with her father and that the offending tractor had collided with against her and as a result thereof, she had sustained serious injuries. It was submitted that there are serious lacunas in the evidence led on behalf of the claimants, inasmuch as on the one hand the claimants have placed reliance upon the panchnama of the scene of accident drawn on 8th July, 1995, which shows the presence of the tractor, whereas in his cross-examination, Savji Bhemaji has stated that after the accident, they had gone in the very same tractor to lodge the first information report. It was submitted that if the claimant had gone in the very same tractor to lodge the complaint, it is difficult to comprehend as to how at the time of making the panchnama, the tractor was still found at the scene of the accident. It was further submitted that the investigation reveals that the deceased and her father were sitting on the mudguard of the tractor and had fallen down when the tractor took a turn. It was submitted that since the deceased was a gratuitous passenger, and therefore, was not entitled to claim any compensation from the insurance company, a different version has been put forth by the claimants stating that she was going on foot along with her father when the tractor dashed against her only with a view to fasten the liability to satisfy the award upon the insurance company. It was urged that on behalf of the appellant- insurance company all these contentions were raised before the Tribunal, however, the Tribunal, on an improper appreciation of the evidence on record, has come to the conclusion that the deceased was going on foot and the accident had taken place on account of the rash and negligent driving on the part of the driver of the vehicle. It was, Page 3 of 9 C/FA/568/2014 ORDER accordingly, urged that the matter requires consideration and, hence, the appeal deserves to be admitted.
5. On the other hand, Mr. M.A. Kharadi, learned advocate appearing on behalf of respondents No.3 and 4 - claimants opposed the appeal by submitting that the Tribunal has, after due appreciation of the evidence on record, recorded findings of fact, which are just, proper and legal and hence, there is no warrant for intervention by this court.
6. This court has also heard Mr. R.K. Mansuri, learned advocate for respondent No.2.
7. From the facts and contentions noted hereinabove, it is apparent that the main plank of the submissions advanced by the learned advocate for the insurance company is that the accident in question had not taken place in the manner as is sought to be put forth on behalf of the claimants. According to the learned counsel, the deceased was travelling on the mudguard with her father and had fallen down and sustained injuries and that subsequently, with a view to claim compensation from the insurance company, a different version has been given that the deceased was going on foot when the tractor had dashed against her. For the purpose of examining the merits of the said contention, it would be necessary to refer to the evidence on record.
8. A perusal of the first information report lodged on 7th July, 1995 at 17:30 hours reveals that it was the case of the Savji Bhemaji, the first informant that at about 10:00 clock in the morning while returning from Jab Chitariya village, he and his Page 4 of 9 C/FA/568/2014 ORDER daughter alighted at Ansol village and were going on foot on the side of the road. In the meanwhile, from the direction of Mota Samra, a tractor approached and while coming down the slope, all of a sudden, the driver lost control over the steering and the tractor collided with his daughter who fell down on the road and the tyre of the trolley ran over her waist and thighs. The driver of the offending vehicle left the tractor and fled from the scene. Hearing their cries, people from the neighbourhood came to be spot and, thereafter, they had taken his daughter to the Shamlaji General Hospital for the purpose of treatment. Thus, in the first information report which has been lodged at the first point of time, the claimant has stated that he was walking on the road along with his daughter when the tractor along with trolley had dashed against his daughter, due to which, she had sustained injuries. A panchnama of the scene of accident (exhibit-55) came to be drawn on 8th July, 1995 at 18:30 hours, which records the scene of accident to be a place where there is a dip in the road and near the slope of the dip, a tractor is lying along with a trolley. The panchnama further shows blood stains on the road near the trolley as well as on the right wheel of the trolley. Evidently, therefore, the offending vehicle was involved in the accident. The claimant Savjibhai, in his deposition, has stated that the accident had taken place because of the tractor dashing against his daughter and as a result whereof, she had sustained serious injuries. That immediately thereafter, his daughter was taken to Shamlaji in another vehicle to the Hospital of Dr. Damor, where she was admitted as an indoor patient. It is true that in his cross-examination, he has stated that after the accident, they had gone to Dehgamda to lodge the complaint in the very same tractor. The evidence on record Page 5 of 9 C/FA/568/2014 ORDER further reveals that the deceased had sustained injuries on account of a vehicular accident and was throughout under treatment, till the time she died. Insofar as the contention that the deceased was sitting on the mudguard is concerned, a suggestion has been put to Dr. Babubhai Damor (exhibit-121) in his cross-examination, wherein he has stated that if the deceased was sitting on the mudguard of the tractor and had fallen down, it was possible for her to sustain such injuries.
9. A perusal of the record of the case shows that except for the above suggestion put to Dr. Damor, there is no evidence whatsoever to even suggest that the deceased and her father were sitting on the mudguard of the tractor at the time when the accident took place. In the first information report which was lodged first in point of time after the accident, the case of the claimant was that the deceased and he were walking on the road when the tractor dashed against the deceased and she fell down after which wheel of the trolley ran over her. A perusal of the impugned award reveals that the Tribunal has dealt with the contentions advanced on behalf of the appellant-insurance company with reference to the statement coming in the cross-examination of the claimant that they have gone in the same tractor to lodge the complaint at Dehgamda. According to the Tribunal, the said answer appears to have been given by the claimant on a misconception of the query put to him. Having regard to the totality of the evidence which has come on record, this court is in full agreement with the reasoning adopted by the Tribunal, inasmuch as, there is no evidence on record to suggest that the claimant had gone in the same tractor to the police station to lodge the complaint. Besides, the panchnama of the scene of offence which is Page 6 of 9 C/FA/568/2014 ORDER recorded on 8th July, 1995 clearly shows the presence of the tractor as well as blood stains near and on the tyre of the trolley. Thus, it appears that due to some misconception as regards the query which was put to him, the claimant has stated that they had gone in the same tractor to lodge the first information report.
10. Having regard to the evidence which has come on record by way of the first information report, the panchnama of the scene of accident, as well as the deposition of the claimant, this court is of the view that on a preponderance of probabilities, the version given by the claimant appears to be more plausible and is also supported by the evidence on record. The Tribunal, therefore, did not commit any error in coming to the conclusion that the deceased had died on account of the injuries sustained by her in the vehicular accident which had occurred while she was walking on the road and the offending tractor collided with her.
11. On the question of quantum of compensation, the impugned award has been assailed on the ground that the deceased being a minor child aged only five years, a multiplier of 15 ought to have been applied instead of 18 as has been done in the present case. Moreover, the Tribunal has deducted only 1/3rd towards the personal expenses of the deceased, whereas one half ought to have been deducted in terms of the principles laid down by the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . In this regard, a perusal of the impugned award reveals that while computing the compensation, the Tribunal has deducted 1/3rd towards personal expenses of the deceased and has Page 7 of 9 C/FA/568/2014 ORDER applied a multiplier of 18 for the purpose of computing the annual dependency loss. In terms of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (supra), where the deceased is a bachelor, 50% of the income is required to be deducted towards personal expenses, whereas in case of a minor child, a multiplier of 15 is required to be applied. If the total dependency is computed by deducting one half of the income towards personal expenses and applying a multiplier of 15, the total loss of dependency comes to Rs. 1,12,500/-, whereas the Tribunal has awarded Rs.1,80,000/- under the said head. Therefore, there is a difference of Rs.59,500/-. At this juncture, it may be noted that the accident in question took place on 07.07.1995, whereas the deceased expired on 2 nd October, 1996 after a considerable period of time. However, the Tribunal has not awarded any amount towards pain, shock and suffering. Besides, the Tribunal has awarded Rs.5,000/- under the head of loss of estate and Rs.4,000/- towards funeral expenses. In these circumstances, having regard to the fact that no amount has been awarded towards pain, shock and suffering, though the deceased had undergone treatment for a considerable period of time as well as having regard to the meagre amount of compensation awarded under the head of loss of estate, the court is of this view that there is no warrant for interference with the compensation awarded by the Tribunal, inasmuch as, even if the compensation awarded under the head of loss of dependency were reduced, the compensation under the head of loss of estate would correspondingly be required to be enhanced and some compensation would be required to be awarded under the head of pain, shock and suffering. The quantum of Page 8 of 9 C/FA/568/2014 ORDER compensation to be awarded as above would be more or less the same as awarded by the Tribunal.
12. In the light of the above discussion, in the peculiar facts and circumstances of this case, the appeal fails and is, accordingly, dismissed.
13. The Registry shall forthwith send back the record and proceedings of the case.
(HARSHA DEVANI, J.) Vahid Page 9 of 9