AI Structured Summary
Not yet generated for this judgment
Judgment
Feeling aggrieved by and dissatisfied with the common judgment and award dated 27.11.2013 passed by learned Motor Accident Claims Tribunal
(Main), Ahmedabad, (hereinafter referred to as ""the Tribunal"" for short), in Motor Accident Claim Petition Nos.790 and 791 of 2005, the appellant â€
Insurance Company preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ""the Act"" for short);
As both these appeals arising out of the same accident, same were heard together and are disposed of by this common judgment.
Heard Mr.H.G.Mazmudar, learned counsel for the appellant and Mr.Saurabh Amin, learned counsel for respondent Nos.1 to 3 â€" Original
claimants.
The following noteworthy facts emerge from the record of the appeal:Â
4.1 That, on 21.03.20015 at about 1:30 P.M, deceased Chetankumar Bharatbhai Mehta and deceased Shwetaben Chetankumar Mehta were returning
from Dhandhuka to Ahmedabad in their car and while they reached near village GundaÂnaÂpara on Bagodara â€" Dhandhuka highway, at that time,
one truck bearing registration No.GJÂ4ÂTÂ5605 came with full speed and in rash and negligent manner and dashed with the car of the deceased,
due to which, deceased Chetankumar Bharatbhai Mehta and deceased Shwetaben Chetankumar Mehta received serious injuries and died.
4.2 In connection with the said accident, FIR being C.R.No.18/2005 came to be registered at Bagodara Police Station, Dist. Ahmedabad (Rural).
4.3 It is the case of the claimants that the said accident occurred due to rash and negligent driving of driver of the truck.
4.4 It is further the case of the claimants that both the deceased Chetankumar and Shwetaben were doing the business of furnishing items in the name
of ABC Associates and had income of Rs.1,01,992/Â.
4.5 The original claimants filed two claim petitions i.e. M.A.C.P No.790/2005 and claimed compensation of Rs.37,65,000/Â and M.A.C.P
No.791/2005 and claimed compensation of Rs.17,25,000/Â before the Tribunal under Section 166 of the Act, wherein the Tribunal partly allowed the
claim petitions and awarded compensation of Rs.18,73,415/Â in MACP No.790/2005 and Rs.11,96,490/Â in MACP No.791/2005 along with costs and
interest @ 9 % per annum from the date of filing of claim petitions till its realization.
Being dissatisfied with the said compensation, the appellant â€" Insurance Company has filed present appeals.
Learned counsel for the appellant contended as under:
(i) That, considering the FIR at Exh:36 and the panchnama at Exh:37, the Tribunal has wrongly come to the conclusion that the driver of the truck was
solely negligent;
(ii) That, considering the manner in which the accident has occurred, the Tribunal ought to have held the driver of both the vehicles equally liable for
the accident and ought to have come to the conclusion that the driver of both the vehicles are negligent to the extent of 50/50 %;
(iii) That, the Tribunal has also erred in considering the income of the deceased and has wrongly awarded compensation under the head of loss of
dependency in both the claim petitions;
(iv) That, the Tribunal has granted Rs.1,00,000/Â as compensation under the head of loss of love and guidance and Rs.25,000/Â for funeral expenses
on higher side and therefore, relying upon the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported
in 2017 (16) SCC 680, learned counsel for the appellant submitted that the same should be reduced to Rs.70,000/Â.
On the above mentioned contentions, learned counsel for the appellant has submitted that present appeals deserve to be allowed, as prayed for.
Per contra, Mr. Saurabh Amin, learned counsel for the respondents has supported the impugned judgment and award and contended that, the
manner in which the accident has occurred and considering the panchnama at Exh:37, it can be asserted that the accident has occurred only because
of sole negligent of the driver of the truck. He further invited the attention of this Court to the panchnama at Exh:37, and contended that the accident
has occurred on 22 feet wide road and car was stuck inside the truck and it was dragged inside the truck at least 25 feet as recorded in the
panchnama and as observed by the Tribunal in the impugned judgment and award and therefore, the Tribunal has rightly come to the conclusion that,
the driver of the truck was solely negligent. He also contended that the accident has occurred on 21.03.2005 and on the date of the accident, deceased
Chetanbhai Mehta, who was 36 years old, was a businessman. Mr. Amin Relying upon the income tax returns at Exhs:30 and 31 for the assessment
year 2002Â03 and 2003Â04 respectively and income tax returns in Form No.2D for the assessment year 2004Â05, income is mentioned as
Rs.1,42,614/Â p.a., however, the fact remains that the Tribunal has committed an error in considering the income of both the deceased. He also
contended that the accident has occurred on 21.03.2005 and the Tribunal has such as committed an error in averaging the income as the income for
the assessment year when the accident has occurred was Rs.1,42,614/Â. He further submitted that it is true that as per the judgment of the Apex
Court in the case of Pranay Sethi (supra), the respondent claimants would be entitled to get compensation under different conventional heads
maximum at Rs.70,000/Â.
Mr.Amin has also relied upon the judgment of the Apex Court in the case of Divisional Manager, Oriental Insurance Company Ltd. Vs. Swapna
Nayak & Ors. [(2017) 3 SCC 598] and has urged that even if compensation under the head of conventional amount is reduced from Rs.1,25,000/Â to
Rs.70,000/Â, considering the error committed by the Tribunal while computing income, amount as awarded by the Tribunal in both the claim petitions
is just and reasonable and therefore, as held by the Apex Court in the case of Divisional Manager, Oriental Insurance Company Ltd. (supra), this
Court may not interfere with the impugned judgment and award.
On the aforesaid contentions, Mr. Amin, learned counsel for the respondentsÂclaimants submitted that, present appeals being meritless, deserve to be
dismissed.
No other or further submissions have been made by learned counsel for the parties.
Similarly, the deceased Shwetaben was also in the business of selling Venetian Blind, Vertical Blind and Mosquito nets and as per the claimants,
relying upon the income tax returns at Exhs:Rs.33, 34 and 35, it was contended by Mr. Amin that in case while calculating the income of the deceased
 Shwetaben, the Tribunal has committed a similar error by averaging her income.
Have perused the original record and proceedings. Upon reappreciation of the evidence on record, more particularly, the panchnama at Exh:37, the
manner in which the accident has occurred and the impact of the accident on fiat car, it is proved beyond doubt that the truck was being driven in an
excessive speed in such a manner that the fiat car was below the truck and was dragged at least 20 feet on the road. The Tribunal has considered the
said aspect in para 7 of the impugned judgment and award, which reads as under:
“7. First of all the FIR Exh:36 lodged by the claimant Bharatbhai Chunilal Mehta is concerned, as discussed above he had not seen the accident
personally. However, he had stated in FIR that accident was occurred due to rash and negligent driving on the part of the driver of vehicle Truck
bearing No.GjÂ4ÂTÂ 5606. The panchnama of scene of incident Exh:37 would reveal that the accident was occurred near village Gandanapura on
Bagodara â€" Dhandhuka road and the vehicle Truck was lying on the eastern edge of the road. It is also mentioned in the Panchnama that the road
was 22 ft. in width. The car was struck 5 ft. inside and below the truck car was dragged at least 20 ft. from the place of incident by the truck. The
surface of the road was unearthened meaning thereby the vehicle Truck was in so excessive speed so that the driver could not control the steering at
the relevant point of time of accident. It is also mentioned in the panchnama that the front side of the car, bonnet, engine, windscreen, roof of the car
were damaged to the extent of Rs.2 lakh and also caused damage to the truck to the extent of Rs.50,000/Â. Meaning thereby the driver of the vehicle
Truck No.GJÂ4ÂTÂ5605 is sole negligent for the accident.
We are in total agreement with the reasonings given by the Tribunal. The appellant  Insurance Company has not examined the driver and upon
reappreciation of the evidence on record, more particularly the FIR at Exh:36 and the panchnama at Exh:37, contention raised by Mr.Mazmudar, that
the driver of both the vehicles were equally negligent, deserves to be rejected outright.
It is true that the Tribunal in both cases has been pleased to award Rs.1,00,000/Â under the head of loss of love and guidance and Rs.25,000/Â as
funeral expenses, which should be reduced to Rs.70,000/Â in both the appeals. However, considering the judgment of the Apex Court in the case of
Divisional Manager, Oriental Insurance Company Ltd. (supra), the Tribunal in both the claim petitions has taken average of income of both the
deceased for 3 years.
Upon reappreciation of the said evidence, we are of the opinion that the Tribunal ought to have considered the last income tax returns, which is
more proximity to the date of accident and determine the income.
At this juncture, it would also be appropriate to refer to the judgment of the Apex Court in the case of Ranjana Prakash & Ors. Vs. Divisional
Manager & Anr. [(2011) 14 SCC 639], wherein the Apex Court has observed thus:
“7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought
to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal
or cross objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the
Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to
litigation r to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek
compensation against the owner and the insurer 0f the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner
challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even
though the claimants had not challenged the nonÂgrant of relief against the insurer. Be that as it may.
Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is
to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the
compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the
owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court
will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/ insurer for reduction. The High Court cannot obviously
increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the
claimants seeking enhancement of compensation.â€
In peculiar facts and circumstances arising out of these appeals, if the income of the deceased in both the claim petitions is taken into
consideration, the respondents â€" claimants would be entitled to more compensation under the head of loss of dependency.
In light of the aforesaid facts, the compensation as awarded by the Tribunal is just and reasonable and in peculiar facts arising in these appeals,
impugned judgment and award does not require any alteration of modification. By applying the ratio laid down by the Apex Court in the case of
Pranay Sethi (supra), the amount awarded under the conventional head may be reduced to Rs.55,000/Â in both the claim petitions. However, as the
Tribunal has not correctly determined the income as observed hereinabove, the claimants would be entitled to get higher amount of compensation
under the head of loss of dependency and under such circumstances, the appeals are liable to be dismissed in order to see that the original claimants
be awarded just and reasonable compensation in the facts of the case.
Accordingly, impugned common judgment and award dated 27.11.2013 passed by learned Motor Accident Claims Tribunal (Main), Ahmedabad, in
M.A.C.P Nos.790 and 791 of 2005 stands confirmed and hence, present appeals are dismissed. In the facts of the case, no order as to costs. Record
and proceedings be transmitted back to the concerned Tribunal forthwith.