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Judgment
The present First Appeal has been filed by the appellant under Section 173 of the Motor Vehicles Act, 1988, being aggrieved with the impugned judgment and order passed in Motor Accident Claims Petition No.355 of 1995 by the learned Motor Accident Claims Tribunal (Auxi.), F.T.C. No.11, Vadodara vide its impugned judgment and order dated 01.11.2007.
The brief facts giving rise to the present First Appeal are as under: -
2.1 That on 03.10.1994 i.e. on the date of incident, one Jagdishchandra Joshi and his friend Shrikant Gavde were going on Scooter No.GJ-6-J-6367 from Dabhoi road towards Vadodara. Said scooter was driven by Jagdishchandra Joshi and Shrikant Gavde was a pillion rider of the scooter. Jagdishchandra was driving the scooter on the left side of the road, while reaching near Shramjivi Society at that time the opponent No.1 came driving with a Truck bearing registration No.GJ-16-T-6324 of the ownership of opponent No.2 in rash and negligent manner and dashed the Truck on the backside of the scooter. As a result of which, Jagdishchandra and Shrikant Gavde were thrown off from the scooter and sustained grievous injuries mainly on the head and due to such grievous injuries sustained, Jagdishchandra died on the spot and Shrikant Gavde died during the treatment in the Hospital after four days of the incident.
2.2 The legal heirs of the deceased Shrikant Gavde filed a claim petition No.355 of 1995 before the Tribunal claiming compensation of Rs.10,00,000/- on account of sad demise of the deceased husband/father of the applicants. As per the say of the applicants in the said petition, due to the accident, deceased Shrikant Gavde sustained severe injuries on his head, right hand wrist, left knee and other parts of the body. He was immediately shifted to Hospital and he died during the treatment at hospital after four days of accident i.o. On 08th October, 2014. As per the say of the applicants, deceased Shrikant Gavde, aged 30 years was hale and healthy, was serving as Technical Assistant in Gujarat Communications and Electronics Ltd. He was drawing his salary of Rs.4,500/- per month. It was averred that due to the accident, applicants lost their husband/father and parents have lost their son. Due to untimely death, the applicants underwent mental pain, shock and agony and have to spend huge amount for transportation and funeral expenses for deceased. In all, they have claimed Rs.10,00,000/- as compensation from the opponents under different heads.
2.3 The Tribunal issued notice to the respondents. Though duly served with the Notice, opponent No.1 driver and opponent No.2 owner of the vehicle did not appear nor file their written statement.
2.4 The opponent No.3, insurance company appeared and filed its written statement vide Exhibit 13 interalia contending that the claim petition preferred by the applicants was not correct and tenable as no cause of action arises. The averments made in the petition, in respect of the accident, were denied by the opponent No.3. It was further denied that deceased Shrikant Gavde was working with Gujarat Electronics and Communications Ltd. at Vadodara as Technical Assistant and was hale and healthy, was 30 years of age and drawing a salary of Rs.4,733.84/- per month. The grounds raised by the applicants in the petition were not accepted, as they were not correct, and hence, were denied by the respondent. As per the contention, the applicants were not entitled to get any compensation from the opponent No.3, and therefore, it was requested to dismiss the claim petition. The learned Judge of the Tribunal, after recording the evidence from the either sides, was pleased to allow the petition by granting compensation of Rs.10,00,000/- holding the liability of the opponents jointly and severally together with interest at the rate of 9% per annum from the date of claim petition till realization with proportionate cost after deducting the amount of NFL, if paid. The appellant insurance company, being dissatisfied with the impugned judgment and award passed by the Tribunal dated 1st November, 2007, has preferred this appeal challenging the impugned judgment and award.
2.5 Heard learned Counsl Mr.Palak H. Thakkar for the appellant and Mr.Mohsin M. Hakim for the respondent Nos.1, 2, 3 and 4. No arguments were advanced from the respondent Nos.5 and 6.
2.6 It was vehemently submitted by the learned Counsel for the appellant that the order passed by the learned Tribunal is not correct nor legal, as the Tribunal has failed to consider the contributory negligence on the part of the deceased scooter driver. That, the Tribunal ought to have considered 50% negligency of the scooter driver, as the Panchnama, Exhibit 30 was clearly speaking that the truck was lying at the edge of the road and front portion of the truck was towards eastern side and backside was towards western side. That, as per the Panchnama, scooter was lying between two wheels of the truck and front portion of the scooter was towards southern side and back portion was towards northern side. The deceased along with his friend were coming from Dabhoi to Vadodara, therefore, the truck did not dash with the scooter from behind. That, the truck was on the correct side of the road as it was on the edge of the road and scooter was on the wrong side of the road. It was further submitted by learned Counsel for the appellant that no documentary evidence showing the actual income of the deceased at the time of the accident was produced by the applicants before the Tribunal. That, considering the minimum salary of a skilled worker at the time of accident, salary of the deceased may be considered at Rs.1,100/- per month only. That, as per the case of Sarla Verma, age of the deceased was 30 years and therefore, the multiplier can be considered only of 16 years, however, the Tribunal has considered the multiplier of 18 years. That, the compensation awarded by the Tribunal to the applicant was erroneous and on the higher side. It was requested to allow this appeal holding the negligency of the scooter driver at 50% and considering the income of the deceased at Rs.1,100/- per month only and modify the order passed by the Tribunal.
2.7 From the other side, learned Counsel for the respondent Nos.1 to 4 supported the judgment and findings arrived at by the Tribunal arguing that both the scooter driver as well as pillion rider were expired due to grievous injuries sustained by them in this motor vehicle accident. That, the opponent No.3 has never tried to examine the driver of the truck who was the eye witness of the incident. That, deceased as a pillion rider was travelling from Dabhoi to Vadodara on his friend's scooter and deceased Jagdishchandra was driving his scooter on correct side of the road. The Inquest Panchnama produced on record, which clearly speaks about the grievous injuries sustained by deceased Shrikant Gavde in a motor vehicle accident. That, adverse inference would require to be drawn against the driver of the truck, who drove his vehicle rashly and negligently and collided with the scooter from the backside. The driver of the truck fled away from the place of accident immediately. That, salary slip of the deceased was produced before the Tribunal at Exhibit 33 and salary certificate of the deceased was produced at Exhibit 34 and Tribunal has rightly considered the exact salary of the deceased. That, in fact considering the dependency, 1/4th portion of the salary would require to be deducted as per the case of Sarla Verma, and however, the Tribunal has deducted 1/3rd amount of salary which is clearly against the settled principles of law. That however, the applicants were entitled to claim of Rs.70,000/- towards conventional account, the Tribunal has awarded Rs.45,000/- only which is less of their entitlement. Learned Counsel further requested that however, lesser amount was awarded to the applicants and they have not preferred any cross objections against this appeal; that amount of compensation may not be reduced or deducted as awarded by the Tribunal in favour of the applicants. There was no negligency on the part of the deceased scooter driver in occurring the accident. That, in a case reported in AIR 2018 Supreme Court 2088, 100% proportionate rise to income was given by the Hon'ble Apex Court. Ultimately, it was requested by the learned Counsel to dismiss the appeal.
Having considered the facts of the case, submissions made by the learned Counsels of the respective parties as well as from the record of the Tribunal, it appears that the complaint of this accident was lodged by one Sureshbhai Balkrushna Bhatt on 4th October, 1994, which was produced vide Exhibit 29. He happens to be relative of the another deceased Jagdishchandra Jamiyatram Joshi. As per the averments made in the complaint, deceased was brother in law of the complainant, who was serving in the Raopura Branch of the State Bank of India. On the day of this accident, it was informed by the police in the night rise that his brother in law namely Jagdishchandra met with an motor vehicle accident and was expired. He came to know that while his brother in law was returning on his Scooter No.GJ-6-J-6367, one driver of the Truck bearing registration No.GJ-16-T-6324 dashed with the scooter and therefore, he received grievous injuries and succumbed to death on 3rd October, 1994. The Panchnama of the place of offence was produced before the Tribunal vide Exhibit 30. From the Panchnama, it appears that the scooter was heavily damaged at the place of accident and was lying below the truck. The front two wheels of the scooter were on the middle part of the road; right side of the chasis of the front part was completely bended; right side of the handle of the scooter was also damaged; back side of the scooter was also got squizzed. Inquest Panchnama was also produced before the Tribunal vide Exhibit 31. The dead body was identified by the relatives of the deceased and deceased had received severe injuries on the various parts of the body. The wife of the deceased Shrutikaben Shrikant Gavde has deposed before the Tribunal narrating the accident occurred with her husband on 3rd October, 1994. Certainly, she was not an eye witness of this accident, but whatever information was received by her was declared before the Tribunal on oath. The complaint lodged by the relative of the deceased Jagdishchandra before the police, Panchnama of place of offence describing the damage condition of the scooter as well as of the truck and surrounding circumstance of the place of the accident, injuries received by the deceased, supports the theory of the applicants of complete negligence on the part of the truck driver. There was an ample opportunity to examine the truck driver by the insurance company before the Tribunal and to place the correct facts of the incident, but it appears that no attempt was made by the insurance company to examine him against whom the allegations of negligence were averred by the applicants. The scooter driver as well as pillion rider who were going on scooter met with an accident and later on expired therefore, they were not available to depose before the Tribunal as a witness. The wife of the deceased who was not present at the time of accident would never expected in such type of cases by the Court that she must be an eye witness of the accident. Under the circumstances, the Tribunal has rightly held the complete negligence on the part of the truck driver and holding the liability of the insurance company of paying the compensation.
It appears from the record that at the time of accident, deceased was serving as a Technical Assistant in the Gujarat Communications and Electronics Ltd. and was earning Rs.4,500/- per month by way of salary. It appears from the record that wife of the deceased Shrutikaben Shrikant Gavde has deposed before the Tribunal that at the time of accident the age of her deceased husband was 30 years. As per the certified xerox copy of school leaving certificate produced vide Exhibit 43 before the Tribunal, his birth date was 10th January, 1966. As per the certified copy of the confirmation of appointment letter produced vide Exhibit 46 as well as as per the Agreement produced vide Exhibit 47 before the Tribunal, it appears that the deceased joined his service in the Gujarat Communications and Electronics Ltd. on 08th October, 1987. It appears from the records that, the Tribunal has erred in holding that the applicants have not produced any documentary evidence regarding income of the deceased at the time of accident. In fact, the Salary Slip and Salary Certificate of the deceased issued by Gujarat Communications and Electronics Ltd. were produced vide Exhibit 34 and 33 respectively showing that the salary of the deceased at the time of accident was Rs.4,528/-. However, the Tribunal has rightly considered the future prospective income taking into account future increase of the income at the time of the death enhance by 1½. Tribunal has rightly considered the future salary at Rs.9,000/- only adding by one month salary and deducting ½ of the above and round off figure was Rs.6,750/-only. As per the case of Sarla Verma, the Tribunal was required to deduct ¼ amount towards self-expediency from the income of the deceased, however, it has deducted 1/3 amount. This issue was not examined by this Court as well as of the entitlement to getting 18 years multiplier instead of 16 years because on other counts lesser amount was given to the applicants. This Court is of the opinion that Tribunal has committed no error in calculating the income of the deceased at Rs.6,750/- only. The total amount awarded by the Tribunal is just and reasonable amount. In a case reported in AIR 2018 Supreme Court 2088, the Tribunal has considered increasing amount for future rise in income by 100%. The High Court reduced it to 50%, but the Hon'ble Apex Court found it erroneous and set aside.
For the reasons, recorded in the judgment, this Court is of the opinion that the Tribunal has committed no error in awarding compensation in favour of the claimants and hence this Court would not like to interfere with the impugned judgment and order passed by the Tribunal. Therefore, this appeal has no merits and it fails and is hereby dismissed. The impugned judgment and order passed by the Motor Accident Claims Tribunal (Auxi.), F.T.C. No.11, Vadodara in Motor Accident Claims Petition No.355 of 1995 dated 01.11.2007 is hereby confirmed. If any amount is deposited by the insurance company - appellant before the Registry of this Court and is lying with it, shall be transmitted to the Tribunal. Record and proceedings be sent back to Tribunal forthwith.