Dhanji Nanji Budhabhatti and Others vs Radhaben and Others

R.M. Chhaya, J.—The present appeals are directed against the common judgment and award passed in MAC Petitions No. 347/83, 348/83 and 354/83 dated 10.4.1989 by learned MAC Tribunal (Main) Kutch.

As the facts and the evidence on record are common and identical all these three appeals as well as respective cross objections are disposed of by this common judgment. The parties are described as per their position in the Tribunal for the sake of brevity.

The facts arising out of these appeals are as under.

(i) That on 11.11.1998 at about 12.30 p.m. one Shri Jethalal Mavji Bhudia, resident of Bhuj was driving his own Fiat Car bearing RTO Registration No. GJV 4445 accompanied by Shri Niranjan Keshavji Joshi, Kamalbhai Vaghajibhai Parmar as well as one Shri Pradip Thakkar. The Fiat Car was proceeding towards Bhuj and while it was about 9 kMs. away from Bhuj on Bhuj-Mandvi road, Mobile Motor Van (sic.Bus) bearing RTO registration No. GTY-3133, came from the otherside of the highway i.e. from Bhuj town side and it dashed with the Fiat Car, driven by Shri Jethalal, as the motor van was being driven at a excessive speed, in rash and negligent manner Opponent No. 1, driver of the Mobile Motor Van lost control over the steering of the vehicle, which was being driven on the wrong side of the road and it dashed and collided with a Fiat Car with such a force that car got badly damaged and was dragged about 30'' towards otherside of the road.

(ii).In the said accident, the driver of the Fiat Car Jethalal, the other two passengers Shri Niranjan Joshi and Shri Kamal Parmar received serious injuries and all the three of them succumbed to such injuries.

(iii). Widow, minor daughter and mother of deceased Jethalal filed Motor Accident Claim Petition before the Tribunal at Bhuj and initially claimed compensation under different heads to the tune of Rs. 42,75,000/-. However, at the time of trial restricted their claim to Rs. 15,00,000/-.

(iv). Similarly, widow, minor son, father and mother of deceased Niranjan Keshavlal Joshi filed claim petition before the MAC Tribunal at Kutch-Bhuj and initially claimed compensation of Rs. 8,65,086.66 under different heads. However, at the time of trial restricted their claim to Rs. 8 lacs.

(V) Widow of deceased Kamalbhai Vagjibhai Parmar filed claim petition before MAC Tribunal at Kutch-Bhuj and initially claimed compensation of Rs. 3,72,500/-, however at the time of trial restricted to Rs. 3,00,000/-.

As all the three claim petitions were relating to the same accident, the MAC Tribunal, Kutch-Bhuj, consolidated the same and after appreciating the evidence on record was pleased to partly allow all the three petitions as under:

(i) MACP No. 347/83 filed by heirs of deceased Jethalal was partly allowed and the Tribunal was pleased to pass judgment and award, awarding claim of Rs. 7,87,500/- with proportionate costs and interest @ 12% p.a. from the date of filing of the said petition till the date of depositing the amount in Court after deducting the amount of Rs. 15,000/-, already deposited by the opponents with a further condition that if the amount awarded is deposited within a period of two months from the date of the award and the interest would be calculated @ 9% p.a. instead of 12%.

(ii) In MCA No. 348 of 1983 filed by heirs of deceased Niranjan Keshavji Joshi, the Tribunal was pleased to pass a judgment and award to the tune of Rs. 3,39,000/-with 12% interest p.a. from the date of filing of the said petition till the date of depositing the amount in Court after deducting the amount of Rs. 15,000/-, already deposited by the opponents with a further condition that if the amount awarded is deposited within a period of two months from the date of the award and the interest would be calculated @ 9;

p.a. instead of 12%.

(iii) In MCA No. 354 of 1983 filed by Smt. Kanchanben wd/o. Shri Kamalbhai Vaghji Parmar, the Tribunal was pleased to pass a judgment and award to the tune of Rs. 2,40,500/-with 12% interest p.a. from the date of filing of the said petition till the date of depositing the amount in Court after deducting the amount of Rs. 15,000/-, already deposited by the opponents with a further condition that if the amount awarded is deposited within a period of two months from the date of the award and the interest would be calculated @ 9% p.a. instead of 12%.

Being aggrieved by the said judgment and award, the driver of the Mobile Motor Van as well as owner i.e. Bank of India, Bhuj branch and the Insurance Company have jointly preferred these appeals.

The Respondents-original claimants in all three Appeals have preferred Cross-Objections for enhancement of compensation before this Court.

We have heard learned Counsel Mr. Sunil Parikh for Mr. R.H. Mehta for the Appellant and Mr. Mehul S. Shah for the Respondents in all the appeals. We have perused the original Records & Proceedings in light of the submissions made by rival parties.

Mr. Parikh vehemently submitted that the evidence on record does not give real picture as to how the accident has occurred. Mr. Parikh further submitted that the oral evidence in form of deposition of so-called eye-witness Lakhabhai, Exh.122, is completely doubtful

and that the Hon''ble Tribunal has given more weightage to the oral testimony of the said witness. Mr. Parikh submitted that the place of accident is a ''S'' shape road and there is a slope going downwards and therefore the driver of the Mobile Motor Van carefully drew the vehicle. However, as the driver of the Fiat Car deceased Jethalal came suddenly from the otherside without observing rules of road and because of the rash and negligent driving of the vehicle by the deceased Jethalal the accident has occurred. Mr. Parikh further submitted that the Hon''ble Tribunal, without appreciating the evidence on record has wrongly recorded the findings as regards negligence of the driver of the Mobile Motor Van. Mr. Parikh further relying upon FIR (Exh.50) registered with Bhuj Taluka Police Station on 12.10.1993 argued that even the driver of the Mobile Motor Van had received injuries. Mr. Parikh relying upon panchnama (Exh. 51) of the scene of accident pointed out that the brake marks of Fiat Car were visible to such an extent that, the same indicates the fact that Fiat Car was being driven by Jethalal at such a speed that the driver of the Fiat Car could not control the vehicle. Mr. Parikh relying upon panchnama also pointed out that the findings recorded by the Hon''ble Tribunal that the Mobile Motor Van had come on wrong side and was on the middle of the road is erroneous and contrary to the record. Mr. Parikh, therefore, submitted that the appeals be allowed and the judgment and award passed by the Tribunal be set aside.

Against this, Mr. Mehul Shah for the Respondents - original claimants, supported the judgment and award passed by the Tribunal. Mr. Shah further submitted that the Tribunal has rightly come to the conclusion that the accident occurred only because of negligence of the driver of the Mobile Motor Van. Mr. Shah submitted that the driver of the Mobile Motor Van was driving such a huge vehicle at more speed in a rash and negligent

manner on the middle of the road and it has collided with the Fiat Car in such a manner that the vehicle in question had been damaged completely, causing injuries to all the accompanying passengers including driver Jethalal. Mr. Shah further submitted that even though the Tribunal has awarded amount as per the award the same is inadequate and the Tribunal has in fact, not read and considered the evidence properly and therefore the cross objections deserve to be allowed and the appeals are devoid of merits and same deserves to be dismissed.

It is note worthy that the Fiat Car is a small vehicle whereas Mobile Motor Van belonging to Appellant No. 2 was in fact a bus which had eight windows which can be appreciated from the photographs at exhibit 101, 102, 103 & 141. On examination of panchnama at Exhibit 51, it is crystal clear that the accident occurred in a broad day light at 12.30 p.m. on a road 23'' wide. It has been recorded in the panchnama at Exh. 51 that the Fiat Car was damaged in such a manner that the front side of the engine of the Fiat Car was completely crushed and the steering had also broken and the Fiat Car was found standing in trance condition and even the glasses were broken. We find that it has also been recorded in the panchnama that the right side of the front of the Mobile Motor Van was damaged and the radiator and the light of the Mobile Motor Van as well as mudguard were broken. It has also been recorded in the said panchnama that the Mobile Motor Van was found on a wrong side of the road. We find that the Tribunal has rightly examined the evidence on record taking into consideration the manner in which the accident had occurred.

Upon reading the oral evidence of Lakhabhai, Exh. 122, we find that he stopped his

Jeepcar near Pulia as he saw accident near ''S'' shape road on Bhuj - Mandvi road and has vividly described, the manner in which the two vehicles collided. We also find that he has stated that driver of the Fiat Car died on the spot, whereas he shifted other injured persons into the Jeep and rushed to the hospital. We also find that he has clearly stated that Fiat Car was coming slowly and the driver of the Fiat Car had given signal of his passing to the driver of the Mobile Motor Van which was coming at the speed of 60-70 kMs. per hour. We find that he has denied the suggestion that the driver of the Fiat Car was negligent. This witness has further stated that before taking injured persons to the hospital he informed the police about the accident. On reading and appreciating the evidence led by Mr. Lakhabhai we find that he is independent eye witness. He use to commute daily from Bhuj to Meghpar for selling the milk and therefore the Tribunal has rightly come to the conclusion that his presence at the scene of accident was natural.

Upon reading evidence of opponent No. 1 Dhanjibhai who was driving the Mobile Motor Van we find that opponent Dhanjibhai has admitted the fact that the photographs Exhibits 98 to 103 show the real position which existed at the time of accident. On appreciating contents of Exhibits 98 & 99 the Tribunal has correctly come to the conclusion that Fiat Car was on left hand side and Mobile Motor Van was wrong side. We, therefore, find that the Tribunal has correctly come to the conclusion that the accident took place due to rash and negligent driving by Dhanjibhai, driver of Mobile Motor Van and that there was No. negligence on the part of the driver of the Fiat Car. The contention raised by Mr. Parikh for the Appellants, that Lakhabhai is not an eye witness to the accident and therefore he should be disbelieved is contrary to the record. It is on the contrary proved by evidence led by opponent No. 1 Dhanjibhai.

As far as findings of quantum is concerned in First Appeal No. 478 of 1990, we find that deceased Jethalal was working in a private firm in Nairobi (Republic of Kenya) and had returned back to India i.e. Bhuj before 19 months from the date of accident. We find that the certificate issued by the ex-employer of deceased Jethalal (Exh.52) indicates that deceased Jethalal was paid monthly salary to the tune of Rs. 10,500/-Kenyan Shilling per month. We, however, find that certificate (Exh.52) is dated 11.2.1992, whereas the accident occurred on 10.10.1993 i.e. after 19 months and there is No. further evidence adduced by the original claimant as to what was his income during last 19 months. We find that the Tribunal has rightly assessed earning capacity of deceased Jethalal at Rs. 7,500/-p.m. taking into consideration his age, capacity and

experience. The Tribunal has rightly deducted 1/3rd from said amount and has correctly assessed the net dependency loss at Rs. 50,000/-per year. The Tribunal has rightly applied multiplier of 15, as deceased Jethalal was aged 40 years, on the date of accident, and has rightly come to the conclusion that the total dependency loss would be Rs. 7,50,000/-. The Tribunal has rightly awarded Rs. 10,000/-towards loss caused to estate, Rs. 2,500/-for expenses of obsequial ceremonies as well as Rs. 25,000/-towards damage caused to the Fiat Car, hence, rightly passed award of Rs. 7,87,500/-.

Similarly we find that while deciding the quantum in relation to First Appeal No. 479

of 2010 in Claim Petition No. 348 of 1993 the Tribunal has considered the fact that deceased Niranjan, was aged 28 years and was working as Clerk in Bank of India at Godpar Branch and after considering oral and documentary evidence, as per income statement of Niranjanbhai''s monthly salary, bonus and other benefits and statement of income tax, has rightly calculated the dependency loss at Rs. 1500/-p.m. for 18 years and by giving 18 multiplier has rightly come to the conclusion that the total dependency loss would be Rs. 3,24,000/-.

The Tribunal has rightly awarded Rs. 10,000/-for the loss caused to the estate, Rs. 2,500/-for expenses and obsequies ceremonies and medical expenses of Rs. 2,500/-and has rightly passed the accumulated the award of Rs. 3,39,000/-. We find that the Tribunal has in absence of any finding as regards mental shock, pain and suffering has denied the claim made by the claimants and the Tribunal has rightly passed the award of Rs. 3,39,000/-.

Similarly in case of First Appeal No. 480 of 1990 the Tribunal after considering the fact that deceased Kamalbhai Parmar was working as Peon in Bank of India and considering the fact that deceased Kamalbhai aged 26 years was getting salary as per Exh.96 salary certificate has rightly awarded 19 multiplier to the dependency loss of Rs. 1,000/-p.m. and has rightly come to the conclusion that the net dependency loss would be Rs. 2,28,000/-and has therefore rightly awarded Rs. 2,40,500/-. We find that the Tribunal has correctly assessed the dependency loss taking into consideration all relevant factors.

Sum total of the above discussion therefore is, that the judgment and award of the learned Tribunal is based on appreciation of the evidence on record and the same does not require any interference by this Court in its appellate jurisdiction. We also find that the cross objections are devoid of any merits and the Tribunal as aforesaid, on proper appreciation of oral as well as documentary evidence on record has rightly applied the principles of compensation and has rightly assessed the dependency loss in all the three cases.

We therefore find that the appeals as well as cross objections are devoid of merits and same are dismissed and the judgment and award of the learned Tribunal stands confirmed.

In facts of the case the parties to bear their own costs.

Registry is directed to send back Record & Proceedings to the Tribunal.