Gujarat High Court
General vs Rakshit on 14 July, 2010
Author: R.Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
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FA/4397/1996 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4397 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GENERAL
MANAGER GUJARAT STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
RAKSHIT
BHARATBHAI PAREKH THRO'BHARATBHAI BABULAL PAREKH & 1 -
Defendant(s)
=========================================
Appearance :
MR
GAJENDRASINH BAGHEL for MR HS MUNSHAW
for Appellant(s) : 1,
MS
DEVYANI N DAVE for Defendant(s) : 1,
MR JT TRIVEDI for
Defendant(s) : 1,
NOTICE SERVED for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 14/07/2010
ORAL
JUDGMENT
1. Gujarat State Road Transport Corporation through its General Manager is before this Court being aggrieved by judgment and award dated 08.07.1996 passed by MACT (Main), Bhavnagar in MACP No.168 of 1992.
2. Heard learned Advocate Mr.Baghel for learned Advocate Mr.Munshaw for the appellant ST Corporation.
3. Learned Advocate for the appellant invited attention of the Court to the facts of the case which are set out in para-2 of the impugned judgment and award. The said para-2 is reproduced hereunder:-
2. The facts of the petitioner's case can briefly be narrated as under:-
On the day of incident, minor injured petitioner was going to the hospital of Dr.Vala as he was burn by the crackers. According to him, he was riding his bicycle slowly and on correct side of the road. When he reached near the scene of offence near Octroi Naka, opponent No.1 came there by driving his ST Bus No.GJ 1 Z 723 in a rash and negligent manner and also in excessive and uncontrollable speed and by driving his ST bus in such a fashion, he dashed his ST bus with the cycle of the injured. As a result thereof, injured fell down on the road and his right limb was ran over by the wheel of the said ST bus. According to the injured petitioner, the present incident has happened due to sole negligence on the part of opponent No.1 and therefore both the opponents are jointly and severally liable for the damages caused to him.
4. The petition filed for claiming compensation of Rs.5 lac under Section 166 of the Motor Vehicles Act, 1988 was contested by the ST Corporation by filing written statement at Exh.15. The contentions raised in that, are set out in para-3 of the impugned judgment and award. The same is reproduced so as to place it on record as to what contentions were raised by the ST Corporation.
3. Opponent No.2 ST Corporation has filed its written statement at Exh.15 and has admitted the incident. However, it is denied that opponent No.1 was rash and negligent in his driving and it is contended that minor petitioner was burnt on the previous day day by the crackers and was also suffering from partial paralysis and even though he was driving his cycle with great difficulty and that too by one hand in the busy crowded road and when the bus bye passed the bicycle of the applicant, the applicant lost balance and dashed with the rear right side of the bus sustaining injuries. Thus, according to ST Corporation, the present incident has not happened due to negligence on the part of opponent No.1 but it has happened due to sole negligence on the part of minor injured petitioner only. They have also denied the age, income, injuries etc. of the injured petitioner. It appears that they have denied all the averments averred by the petitioner regarding rash and negligent driving of opponent No.1 as well as quantum of compensation etc.
5. Learned Advocate for the appellant vehemently argued that the Tribunal has committed two grave errors, (1) in assessing the prospective income of the injured at Rs.2,000/- per month. He submitted that the Tribunal ought to have followed Schedule-2 with necessary changes therein because it is the submission of the learned Advocate for the ST Corporation that though the boy was aged 12 years and the table prescribes multiplier of 15 for the victims up to the age of 15, the same is taken without reducing the same, which according to the learned Advocate for the appellant, was required to be reduced because the table prescribes the highest multiplier. It is the submission of the learned Advocate for the appellant ST Corporation that these figures of multiplier are required to be reduced by the Tribunal by taking into consideration the facts of every case.
When it is put to the learned Advocate for the appellant as to what is the basis of making this submission, he submitted that it is his understanding that these figures of multiplier are the 'highest' multiplier figures and they are required to be reduced on the basis of the facts of each case.
6. Learned Advocate for the appellant submitted that a victim up to the age of 15 years, all cannot be granted multiplier of 15. Similarly, when a victim is between 15 to 20 years, all cannot be granted multiplier of
16. So the Tribunal is bound to reduce the same according to the facts of the case.
The submission is found to be made only with whims and no logic is found behind the said submission. If the legislation had such intention, it could have provided accordingly. Even the Hon'ble the Apex Court has pronounced that the 2nd Schedule is required to be followed in the matters under Section 163(A) and the details set out therein are required to be taken as guidelines and they should be followed as far as practicable.
7. In the considered opinion of this Court, there is no reason found for which the Tribunal should have taken any other figure in place of 15 as multiplier in the facts of the present case. The victim was studying in 7 standard and was aged 12 years. There is no reason put forward by the learned Advocate for the appellant ST Corporation for which the figure should have been lower one. Hence, this Court finds this submission to be without any substance and the same is rejected.
It will be appropriate to note that the application was under Section 166 and not under Section 163(A) of the Motor Vehicles Act.
8. Coming to the income part, it is contended by the learned Advocate for the appellant ST Corporation that it is assessed on higher side.
This Court is of the opinion that this submission is also without any merit inasmuch as, the victim of 12 years, studying in 7 standard, father running a shop in Talaja Town and deriving income, for which he is required to pay income tax, by any standards he will certainly make his child able to earn atleast Rs.2,000/- per month. Taking into consideration the family background of the victim, i.e. father having a shop and being an income tax payer, it can be very well said that he was in 'upper middle class' and he would not have spared any attempt in making his child a well placed citizen by getting him well educated and once he is well educated, he would have had atleast income of Rs.2,000/- per month. It is very easy to say that the Tribunal assessed the income of the victim on higher side, but before that, learned Advocate for the appellant must make out a specific reason. In absence of any such reason being made out, this Court is left with no other alternative than to put its seal of approval that the Tribunal has assessed the prospective income correctly.
9. Learned Advocate for the appellant ST Corporation did not raise any other contentions than which are dealt with.
10. The fact that there is no appeal filed by the claimants, this Court is not able to enhance the amount awarded by the Tribunal. This Court is of the considered opinion that in a case like this where a 12 years old boy sustained injuries on account of the wheel of the bus ran over from his right limb; he sustained serious fracture and crush injuries in this incident; his right leg was completely crushed and he sustained serious injuries of three ribs; he also sustained serious injuries on his right hand and after the incident he was taken to CHC Talaja, wherefrom he was taken to Sir T.Hospital, Bhavnagar where he was admitted as an indoor patient; he was also operated upon his right leg and a steel rod was inserted there; he was removed to Civil Hospital, Ahmedabad for treatment, where he was admitted as an indoor patient for 2 days and was advised to come after every 20 day; he also took treatment of Shyamsunder Physiotherapist at Bhavnagar and at Viramgam also; he was also taken at Bombay for treatment of Dr.Zal Ambadia as well as Dr.Brijbhushan at Bombay and his treatment lasted for long at Bombay and he was also treated by Dr.Prakash Shah of Ahmedabad for two and half months, for all these prolonged agonies inflicted by rash and negligent driving of an ST Bus driver, who is supposed to be very cautious while crossing a busy road of Taluka Town, the total amount awarded is definitely on a lower side. Rs.30,000/- is awarded for mental agony, pain, shock and suffering, Rs.35,000/- is awarded for medical expenses, transportation charges, special diet, attendance charges and other misc. expenses, Rs.25,000/- is awarded for loss of matrimonial prospects, Rs.25,000/- is awarded for loss of study and academic carrier, and Rs.25,000/- is awarded for loss of enjoyment and amenities of life. This Court restrains itself from commenting upon the aforesaid amount. This Court is of the firm opinion that the amounts awarded under different heads is on lower side.
(emphasis supplied)
11. Be that as it may, one thing is certain that the First Appeal is without any merit and the same deserves nothing else than dismissal and it is accordingly dismissed. The stay granted earlier against execution of the impugned judgment and award is vacated forthwith.
(Ravi R.Tripathi, J.) *Shitole Top