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Judgment
The appellants  claimants have preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (“the Act†for short) challenging the
judgment and award dated 8th February, 2018 rendered in MACP No.1694/2004 passed by Motor Accident Claims Tribunal (Aux), 13th Additional
District Judge, Vadodara (“the Tribunal†for short).
Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned advocates for
the respective parties, the matter is taken up for final hearing.
Brief facts of the case Deceased Khodabhai Jijubhai Jeep No.GJ.06.W.2033 from are that on 24.09.2004, Salat was driving the Bodeli to Bakrol.
The DriverÂrespondent no.1 of the ST bus bearing Registration NO.GJ.1.Z.4392 came in very rash and negligent manner and dashed the bus with the
tempo and caused the accident. Due to this accident, the deceased Khodabhai Jijubhai Salat sustained grievous injuries and succumbed to the same at
the hospital. That appellantÂclaimant no.1 is the widow, appellant nos. 2 and 3 are the children and appellant nos. 5 to 6 are the parents of the
deceased. Respondent no.1 is the driver and respondent no.2 is the owner of ST Bus involved in the accident. The deceased was a jeep driver and
was earning the salary of Rs.4000/Â per month. The deceased was aged about 29 years old at the time of accident. Thus, the appellantsÂoriginal
claimants claimed Rs.15,00,000/Â by way of compensation from the respondents under various heads.
On service of summons, respondents no.1Âdriver has chosen not to appear before the Tribunal, whereas respondent no.2ÂCorporation appeared
and filed its written statement at Exh.12 denying the factum of name, age, occupation, income, nature of injuries and time, date and place of alleged
accident, involvment of bus averred in the claim petition.
The Tribunal, after framing the issues, considered the evidence of appellant no.1ÂSavitaben Wd/o. Khodabhai Jijubhai Salat produced at Exh.26 as
well as well as documents vide Exhs.21 to 25, 27 to 31, 47 to 50 and came to the conclusion that deceasedÂKhodabhai Jijubhai Salat as well as
respondent no.1Âdriver of the S.T.Bus were jointly liable. Late Khodabhai Jijubhai Salat had sustained injuries and succumbed to the same due to
equal contributory negligence of the respondent no.1Âdriver of the S.T.Bus. The Tribunal held that the FIR, complaint, panchnama, inquest
panchnama and post mortem report produced at Exhs.21 to 25 clearly reflects that the deceased himself was driving the jeep and as per
panchanama, the ST Bus was found on the left side of the road; whereas, the jeep was found 12' away from the bus in crossed direction headed
towards bus. It is also not in dispute that both the vehicles were crossing each other from the opposite side and the road was straight and having width
of 20'. The Tribunal further found from the panchnama that driver side front tyre of the bus was found airless. The bus was damaged from the driver
side and the frontal driver side of jeep was seriously damaged and front driverÂside tyre of the jeep was burst. The Tribunal, therefore, considering
the damaged parts of both the vehicles and the front driver side tyre having burst of both the vehicles came to the conclusion that the accident could
have taken place only if front driver sides of both the vehicles would have dashed from the opposite side. It was further found that there was
sufficient and comfortable crossing of two heavy vehicles on the road of total width of 20' i.e. up to 10' up and 10' down. It was also not the case of
either side that either of the vehicle was overtaking the third vehicle and while such overtaking, the opposite vehicle was driven on the wrong side and
accident took place. The Tribunal, therefore, found that the accident took place only because of the fact that both the drivers of the vehicles in
question were driving their vehicles by keeping their driverÂside touching the middle of the road. It was, therefore, presumed that both the drivers of
the vehicles were not ready and willing to backdown their respective vehicles on their left side to avoid the accident.
The Tribunal, thereafter, referred to deposition of respondent no.1 Â Driver of the Bus to rebut the evidences of the claimants. It was deposed by
him that he was driving bus slowly on his correct side. The bus was stopped on the left side of the road to outboard the passengers at the time of
accident and the deceased came in rash and negligently and dashed the jeep with the bus on his wrong side. However, it is an admitted fact that such
fact was revealed for the first time by the respondent no.1 in his deposition, but he did not state the said story before the police and in his written
statement. Moreover, there is no such defense raised by the respondent no.2ÂST Corporation in the written statement at Exh.12. Even the respondent
no.2 has not raised any such defense during the crossÂexamination of PW.1 examined at Exh.26. The Tribunal, therefore, came to the conclusion that
on the basis of panchnama that the bus was damaged from the driver side and the frontal driver side of jeep was seriously damaged and front
driverÂside tyre of the jeep was burst. Considering the damage part of both the vehicles, the involvement of both the vehicles were equally found to
be contributory negligent for the occurrence of the accident.
With regard to just and fair compensation to be awarded by the Tribunal, the income of the deceased Khodabhai was considered at Rs.3200/Â per
month as against the claim of Rs.4000/Â per month. In absence of reliable proof of income in present case, the income of the deceased was estimated
on the notional basis after considering the settled law in case of Kishan Gopal and Another Vs. Lala & Others [2013 ACJ 2594]. The Tribunal
Considered the age of deceased Khodabhai to be about 28 years as per driving license produced at Exh.47. The Tribunal, thereafter, granted benefit
of additional 40% towards prospective income as per the decision of the Apex Court in the case of National Insurance Company Limited versus
Pranay Sethy & Ors. [2017 (16) SCC 680]. The Tribunal applied multiplier of 17 as per the judgment of Sarla Verma Vs. Delhi Transport Corporation
[2009 (6) S.C.C. 121]. The Tribunal deducted ¾ towards personal expenses and calculated compensation for loss of dependency benefits as
under:Â
=================================================
Monthly Income of the
Deceased                           Rs.3200 X
12=
38,400/Â per year
+ 40% Loss of Future Prospective Income:Â
= 15,360/Â
__________
= 53,760/Â
 1/4 towards personal expenses = 13,440/Â
__________
= 40,320/Â
Considering the age of the deceased 28 years, Multiplier X 17
__________
Rs.6,85,440/Â
+ Loss of Consortium: Rs.40,000/Â
+ Loss of Estate:Rs.15,000/Â
+ Loss of Funeral Expenses:
Rs.15,000/               Rs.        70,000/Â
______________
Rs.7,55,500/Â
 50% deduction towards
selfÂnegligence.Rs.3,77,720/Â
_______________
Rs.3,77,720/Â
Heard learned advocate Mr. Nishit Bhalodi for the appellants and learned advocate Mr. H.S.Munshaw for respondent no.2.
Learned advocate for the appellants submitted that the Tribunl has committed an error by coming to the conclusion that the deceased was equally
negligent for the accident. He submitted that the Tribunal ought to have considered that the FIR and chargeÂsheet is against the respondent no.1 after
thorough investigation by the police as he was found sole negligent for the accident.
Learned advocate for the appellants submitted that the bigger vehicle owe responsibility towards the smaller vehicles, and therefore, the
respondent no.1 ought to have taken utmost care in driving the S.T.Bus.
Learned advocate for the appellants submitted that the respondents have not produced any evidence before the Tribunal to confirm that the
respondent no.1 made any efforts to avoid accident. Therefore, the Tribunal ought to have considered sole negligence of the respondent no.1 and
ought to have held the respondents liable to pay 100% compensation to the appellants.
Learned advocate for the appellants submitted that the evidence led by the respondents is not considered by the Tribunal, as the story narrated on
oath was an afterthought by the respondents to save the liability of the respondents. Therefore, the Tribunal ought to have considered the respondents
100% liable to pay the compensation.
The Tribunal, on the basis of FIR, Panchnama and P.M.Report of the deceased produced at Exh.21 to 25, has arrived at finding of fact that the
deceased himself was driving in the Jeep involved in the accident. On perusal of the panchnama at Exh.23, the Tribunal found that the ST Bus was
found on the left side of the road; whereas Jeep was found 12' away from the bus in the crossed direction headed towards bus. Thus, both the
vehicles were crossing each other from the opposite side and the road was straight and having width of 20'.
On perusal of the panchnama at Exh.23, it also found by the Tribunal that the driver side front tyre of the bus was found airless and the bus was
damaged from the driver side, whereas front driver side part of the Jeep was seriously damaged and front driver side tyre of the Jeep was burst.
Therefore, considering the damaged part of both the vehicles and the front driver side tyre being burst of both the vehicles, the Tribunal concluded that
the accident occurred due to collusion of both the vehicles by front driver side. The Tribunal has also considered panchnama, wherein it is mentioned
that road was having the total width of 20' i.e. 10' up and 10' down. Therefore, it was more than sufficient for comfortable crossing of two heavy
vehicles.
It is not in dispute that neither of the vehicle was overtaking third vehicle and while such overtaking, the opposite vehicle was driven on the wrong
side and accident had occurred. The Tribunal, therefore, rightly concluded that the accident would only be possible if both the drivers of the vehicles in
question were driving their vehicles by keeping their driver side touching the middle of the road and both the drivers of the vehicles were not ready and
willing to down track their respective vehicles on their left side to avoid the accident, and therefore, the Tribunal has rightly held that the drivers of the
vehicles were equally negligent in driving their vehicles at the time of accident.
In view of the aforesaid finding, it cannot be said that the Tribunal has committed any error in arriving at the aforesaid conclusion in view of the
admitted facts emerging from the panchanama and other oral and documentary evidence on record.
With regard to just and fair compensation awarded by the Tribunal is concerned, the Tribunal has considered the income of the deceased at
Rs.3200/Â per month in absence of reliable proof of income on notional basis as per the existing minimum wages at the time of accident in the year
2004. The Tribunal, thereafter, by applying ratio of decision of Sarla Verma (supra) and Pranay Shetty (supra), rightly calculated the net amount of
compensation and awarded Rs.3,77,720/Â to the claimants. Therefore, no interference is required to be made in the impugned judgment and award.
In view of the aforesaid facts, there is no infirmity in the impugned judgment and award passed by the Tribunal. The appeal therefore, being
devoid of any merit is dismissed. No order as to cost.`