Kantilal Mohanlal Pandya (Deleted) and 5 vs Pradyumansinh Prahladsinh Mangalsinh Parmar and 2

Honourable Mr. Justice KS Jhaveri

First Appeal No. 5323 of 1997 is filed by the original claimants seeking enhancement of the compensation awarded to them by the Motor Accident Claims Tribunal, Surendranagar in Motor Accident Claims Petition No. 142 of 1988 vide award dated 10.10.1997 whereby amount of Rs. 1,44,600/- was awarded as compensation.

1.1 First Appeal No. 5324 of 1997 is filed by the original claimants seeking enhancement of the compensation awarded to them for the damages caused to the Ambassador Car by the Motor Accident Claims Tribunal, Surendranagar in Motor Accident Claims Petition No. 143 of 1988 vide award dated 10.10.1997 whereby amount of Rs. 15000/- was awarded as compensation.

It is the case of the appellants that all the injured and deceased were travelling in an Ambassador Car No. GAN 9836 on 11.10.1987. While they reached village Kotharia, a truck bearing registration no. GTX 5792 came from the opposite direction and collided with the car. The driver of the car died due to the said collision. The legal heirs and representatives of the deceased therefore filed claim petitions for compensation for the death of the driver to the tune of Rs. 3 lakhs and damage to the car to the tune of Rs. 40000/-. The Tribunal after hearing the parties passed the aforesaid award.

Mr. Rawal, learned advocate appearing for the appellants submitted that the Tribunal seriously erred in holding that the deceased Rajendrabhai contributed for the negligence and that too to the extent of 25%. He submitted that the Tribunal failed to appreciate that for the purpose of deciding the aspect of negligence, panchnama is a very material piece of evidence and the same in the present case is very self eloquent. The accident occurred due to the rash and negligent driving of the driver of the truck and therefore the Tribunal ought not to have attributed contributory negligence on the part of the car driver - deceased.

3.1 Mr. Rawal further contended that the Tribunal did not take into consideration the correct procedure for calculating future loss of income and thereby did not award correct compensation under the said head. He also submitted that the Tribunal awarded compensation for the damages caused to the ambassador car. He submitted that the assessment arrived at by the surveyor to the tune of Rs. 28551.50 ought to have been accepted by the Tribunal.

Mr. Shah, learned advocate appearing for the respondents supported the award of the Tribunal. He submitted that the Tribunal has rightly attributed contributory negligence on part of both the drivers after going through the panchnama. He submitted that the quantum of compensation does not call for any interference by this Court. He also contended that the compensation for damages caused to the Car is just and proper in view of the fact that the car was of the year 1971 and the accident occurred after a period of 16 years by which the book value of car was almost nil.

Heard learned advocates for both the sides and perused the papers on record. While considering the panchnama on record, it is very clear that the width of the road was around 32 feet. The truck was on the wrong side of the road while the car was on correct direction. From the position of the vehicles on the road it appears that the truck was in an excessive speed. The truck driver seems to have tried to avoid the collision and taken the vehicle to the correct side. The front portion of the truck had been to the left side and there were circular tyre marks for about 48 feet which means that the truck was in a high speed. The car was going at a moderate speed in the right direction as deposed by the witnesses. In that view of the matter, though it is true that the car could also have avoided the accident, the contributory negligence of 25% attributed to the driver of the ambassador car is on the higher side. Interest of justice will be served if the contributory negligence is at 12.5%.

5.1 Even as far as the quantum of compensation is concerned, the Tribunal has not taken into consideration the future loss. As the salary of the deceased was Rs. 986, it can be rounded off to Rs. 1000/-. In view of U.P. State Road Transport Corporation and Ors. Vs. Trilok Chandra & Ors. reported in 1996 (3) GLR 136 the future loss of income should be calculated on the basis of average of double the income which comes to Rs. 1500/- in the present case. After deducting 1/4 for expenses, the amount comes to Rs. 1125/- per month (1500-375(1500*1/4)).

The Tribunal has in the present case applied the multiplier of 16 years which in my opinion is just and proper. Hence, the future loss of income shall come to Rs. 2,16,000/- (Rs. 1125*12*16). Considering the contributory negligence at 12.5%, that amount payable under future loss of income shall come to Rs. 1,89,000/-. Adding Rs. 20,000/- towards conventional expenses would make the compensation amount to Rs. 2,09,000/-. Therefore, since the Tribunal has already awarded Rs. 1,49,600/-, an additional amount of Rs. 59,400/- shall be awarded to the appellant under the head of future loss of income.

As far as the appeal no. 5324 of 1997 is concerned, the Tribunal has assessed the damages at Rs. 2000/-. Deducting contributory negligence at 12.5%, the amount of Rs. 17500/- is payable to the original claimants. Hence an additional amount of Rs. 2500/- shall be paid to the original claimants for the damages to the ambassador car.

In the premises aforesaid, appeals are partly allowed. The original claimants shall be entitled to an additional amount of Rs. 59,400/- towards compensation for the death of Shri Rajendrabhai and Rs. 2500/- towards the damage caused to the car at 7.5% running interest from the date of application i.e. 29.12.1987 till realisation. The award of the Tribunal is modified accordingly. No costs.