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Judgment
Feeling aggrieved and dissatisfied with the impugned judgment and award dated 04.02.2011 passed by the learned Motor Accidents Claim Tribunal
(Auxi), Mehsana in MACP No.677 of 2007, the appellants original claimants have preferred this appeal under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as the “Actâ€).
2.0. That on 20.08.2007 the deceased Dashrathbhai went to his agriculture field on his motorcycle bearing registration no. GJÂ2Â ABÂ9032 and
parked his motorcycle and attempted to reach his agriculture field by crossing road at about 8.30 a.m. As the facts revealed that while deceased
Dashrathbhai was crossing the road, a truck bearing registration no. GJÂ13TÂ8182 being driving in excessive speed and in rash and negligent manner
came from other side and the deceased dashed with the truck and sustained serious injuries and succumb to the same. FIR was lodged with the
jurisdictional police at Exh.28 and the appellants â€" original claimants preferred the claim under Section 166 of the Act and originally claimed Rs.25
lakh as compensation. It is matter of record that by an application below Exh.23, the appellants enhanced the claim from Rs.25 lakh to Rs.50 lakh as
per the order dated 14.09.2010 passed by the learned Tribunal.
2.1. The appellants original claimants was examined at Exh.26 and over and above the same, one of the eyewitness Shri Vaghubha Hathisinh Jadeja
was examined at Exh. 27. Over and above same, the appellants also examined one witness Shri Kantibhai Keshavbhai Patel at Exh. 54 who happens
to be the Principal of the School where deceased was working. The appellants also examined one Shri Harishbhai A Patel who is Director of Eduction
at Exh.57. The appellants original claimants also relied upon the documentary evidence such as FIR at Exh.28, panchnama of the place of incident at
Exh. 29, inquest panchnama at Exh.30, postmortem note at Exh.32, charge sheet of the criminal case at Exh.31, R C Book of the Truck at Exh.44,
premium receipt of the insurance at Exh.45, school leaving certificate at Exh.34, Pan Card at Exh.36, Pay Slip of the deceased who was working as a
teacher at Exh.37, village form no.6 showing the agriculture land belonging to deceased at Exh.39, village form no. 8A at Exh.40 and form no.7/12 at
Exh.41. The Tribunal considered the net income of the deceased at Rs.10,000/Â after considering monthly income effect of prospective income and
1/3rd deduction towards personal expenses and applying 14 multiplier, awarded a sum of Rs.16,80,000/Â as compensation under the loss of
dependency and over and above the same, awarded Rs.30,000/Â as compensation under the different conventional heads including funeral charges
and thus, awarded compensation of Rs.17,10,000/Â. The Tribunal after appreciating the evidence on record, more particularly, FIR at Exh.28,
Panchanama of the scene of occurrence at Exh.29 came to the conclusion that driver as well as deceased both were negligent for the accident and
Tribunal attributed 40% negligence of the deceased and thus awarded net compensation of Rs.10,26,000/Â with 7.5% interest from the date of filing
claim petition till its realization.
2.2. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the appellants original claimants have preferred
the present appeal.
3.0. Heard Mr. J.M. Barot, learned advocate for the appellants original claimants and Mr. G. C. Mazmudar learned advocate for the respondent
no.3Â Insurance Company. Though served, nobody appears on behalf of the respondent nos. 1 and 2.
4.0. Mr. Barot, learned advocate for the appellants has contended as under:
4.1. That the Tribunal has committed an error in considering the income of the deceased at Rs.10,000/Â per month in toto after 1/3rd deduction. Mr.
Barot contended that the Tribunal ha also not appreciating the oral evidence led by the appellants original claimants especially deposition of Shri
Kantibhai Keshavbhai Patel â€" Principal of the Primary School where the deceased was working as a teacher at Exh.54 and so also oral deposition
of Shri Harishbhai A Patel at Exh.57.
4.2. Mr. Barot further contended that the Tribunal has also erred in considering the prospective income. Mr. Barot has further contended that as per
the evidence on record, more particularly, School Leave Certificate at Exh.34 the deceased was 41 years old on the date of accident. As the
deceased was working as a teacher, the appellants would be entitled to at least 30% increase in income by way of prospective income.
4.3. Mr. Barot also further contended that the Tribunal has wrongly come to the conclusion that the deceased was negligent to the extent of 40%. Mr.
Barot contended that the Tribunal has misread the FIR at Exh.28 and the panchnama of the scene of accident at Exh.29. Mr. Barot contended that
the deceased was pedestrian and was not on any motor vehicle. Mr. Barot contended that even though the accident has occurred in broad day light at
8.30 am the truck was being driven in excessive speed, which is evident from the panchnama that even though the trucks were applied the break, the
deceased was crushed to death. Mr. Barot contended that the said fact on the contrary prove that the truck was being driven in excessive speed and
in rash and negligent manner and under such circumstances, the Tribunal ought to have held the driver of the truck solely negligent.
4.4. Mr. Barot also contended that the accident has occurred on 20.08.2007 and considering the prevailing bank rates, the Tribunal has awarded lesser
percentage of interest, which should be appropriately enhanced by this Court. On the aforesaid grounds, it was contended by Mr. Barot that impugned
judgment and award deserves to be modified by allowing the appeal as prayed for.
5.0. Per contra, Mr. Mazmudar, learned advocate for the respondent no.3Â Insurance Company has supported the impugned judgment and award.
Mr. Mazmudar referring to the pay slip of the deceased at Exh.37, the Tribunal has committed an error in considering the income of the deceased at
Rs.10,000/Â per month. Mr. Mazmudar contended that there is no evidence on record to show that the deceased had any other additional income or
income from agriculture source and except the fact that the deceased was one of the 11th coÂowner, no evidence is adduced by the appellants and
therefore, the Tribunal has rightly assessed the income of the deceased at Rs.10,000/Â per month. Mr. Mazmudar contended that the oral deposition
of Shri Kantibhai Keshavbhai Patel at Exh. 54 and Shri Harishbhai A Patel at Exh. 57 is not rightly believed by the Tribunal as the same relates to the
prospective / projected salary of the deceased and same does not in any way relate to or can be taken as evidence for the income on the date of
accident.
5.1. Mr. Mazmudar also contended that the panchnama at Exh.29 clearly shows that the accident has occurred because of negligence on the part of
the deceased also. Mr. Mazmudar referring to the panchnama at Exh.29 contended that width of the road as per the panchnama is 13 ft wide and the
accident has taken place on the middle part of the road. Mr. Mazmudar further contended that the panchnama shows that truck driver tried to take
appropriate care and caution by applying break which is evident from the Wheel Marks, which are found on the middle of the road. Mr. Mazmudar
contended that the panchnama shows that even though the deceased noticed that the truck is coming, he tried to cross over the road in a negligent
manner and dashed with the same. Mr. Mazmudar contended that the Tribunal has rightly appreciated the evidence on record and has correctly come
to the conclusion that the deceased was negligent to the extent of 40% and hence, the contention raised by the learned advocate for the appellants that
the driver of the truck was solely negligent, deserves to be negatived.
5.2. Mr. Mazmudar also contended that the Tribunal has rightly exercised the discretion and awarded 7.5% interest, which does not require any
modification.
5.3. It was contended by Mr. Mazmudar that considering the date of accident, the Tribunal has rightly awarded Rs.20,000/Â under the head of
consortium and Rs.10,000/Â under the head of funeral expenses and same also does not require to be altered or modified by this Court. On the
aforesaid ground, it was asserted by Mr. Mazmudar that appeal being merit less and same deserves to be dismissed.
6.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.
7.0. Having gone through the original Record and Proceedings of the case and considering the submissions made by the learned advocates for the
respective parties, it would be appropriate to refer to the salary slip of the deceased who was working as Primary School Teacher at Exh.37. As per
the pay slip at Exh.37, the gross salary of the deceased was Rs.14065/Â per month. It appears that except the deduction of Rs.80/Â per month
towards professional tax, other deductions which are taken into consideration by the Tribunal, cannot be deducted from the gross pay while
determining the net income of the deceased. Even considering the other evidence on record being Exhs. 39, 40 and 41 though the agriculture lands are
found to be joint property wherein the deceased was one of the coÂowner. The fact remains that the in the month of July which is relevant,
considering the date of accident, salary of the deceased which has to be based on the principle of gross pay minus tax would come to Rs.13,900/Â‐
(which can be rounded of Rs.14000/Â). Following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs.
Pranay Sethi reported in (2017) 16 SCC 680 as the deceased was 41 years of age on the date of accident, the appellants would be entitled to increase
in income by way of prospective income to the extent of 30%. Thus, the Tribunal has committed an error in determining the income of the deceased at
Rs.10,000/Â including prospective income and even deduction to the extent of 1/3rd towards personal expenses. Upon reÂappreciation of evidence,
we hold that income of the deceased has to be determined at Rs.14000/Â per month. Thus, the appellants would be entitled to compensation under the
loss of dependency as under:
“14000/ (per month income) + 4200 (30% prospective income) = 18200/  6667/ ( 1/3rd deduction towards personal expenses) = 11,533/Â‐
(Net per month income)â€
7.1. Furthermore, considering the notional effect of income tax at the rate of 10%, the net income of the deceased would come to Rs.10380/Â‐
(Rs.11533ÂRs. 1153/Â (10% of income tax). Thus, the early income of the deceased would come to Rs.1,24,560/Â and applying 14 multiplier, the
appellants would be entitled to compensation of Rs.17,43,840/Â. Over and above same, as per the judgment of the Hon'ble Supreme Court in the case
of Pranay Sethi (supra, the appellants would be entitled to Rs.70,000/Â additional compensation under the conventional heads including funeral
charges etc. Thus, the appellants would be entitled to total compensation of Rs.18,13,840/Â.
8.0. Upon reÂappreciation of evidence on record and considering the panchnama of the scene of accident at Exh.29, the motorcycle of the deceased
was found to be parked on the other side and Helmet being fixed on the rod of the mirror. The panchnama clearly shows that the deceased was trying
to cross the road, which was 13 ft wide. It is no doubt true that the Wheel marks of the truck were observed in the panchnama, which goes to show
that the driver of the truck tried to avoid accident and applied the break, however the very panchnama also shows, which is also recorded by the
Tribunal that Wheel marks with blood stains upto the distance of 25 ft with diameter of about 2 ft. The accident has occurred on the middle of the
road at 8.30 a.m in the morning. Even considering the time of accident, driver of the truck had ample opportunity to visualize the person i.e. deceased
is cross the road and he has already cover the half of the distance. Similarly, deceased also must have noticed the truck coming from other side.
However, considering the very Wheel marks on the truck and blood stains which are found and the manner in which nature of injuries sustained by the
deceased, which is evidence from the postmortem note at Exh.32, it can be said that the truck was being driven at an excessive speed in rash and
negligent manner and that the driver of the truck could not control the same and the deceased who was pedestrian dashed with the truck. Upon reÂ‐
appreciation of the evidence on record, we find that the Tribunal has committed an error in considering the deceased was pedestrian being negligent to
the extent of 40%. The truck in question was bigger vehicle and upon reÂappreciation of the evidence as discussed herein above, the driver of the
truck was much more negligent than the deceased who was pedestrian and in facts of this case, we hold that the driver of the truck was negligent to
the extent of 90%. Cumulatively, therefore, this Court is of the opinion that driver of the truck was more negligent than as determined by the Tribunal.
It has also come on evidence of the eyewitness Shri Vaghubha Hathisinh Jadeja at Exh. 27 that the truck was being driven in full speed and the driver
of the truck tried to take a wrong turn. Upon reÂappreciating the evidence and in the manner in which, the accident has occurred, the deceased was
also negligent to some extent and it would have avoided the accident by not taking risk of crossing highway without taking proper care and caution. In
facts of this case, we therefore, come to the conclusion that driver of the truck was negligent to the extent of 90% and deceased was negligent to the
extent of 10%.
9.0. As far as rate of interest is concerned, considering the date of accident being 20.08.2007, the Tribunal has rightly exercised the discretion and has
correctly awarded the interest at the rate of 7.5%, which does not require any modification.
In view of the above, the appellants would be entitled to total compensation of Rs.18,13,840/Â 1,81,384 (10% negligence of the deceased) =
16,32,456/. Thus, the appellants â€" original claimants would be entitled to total compensation of Rs.16,32,456/Âwith 7. 5% interest from the date of
filing of the claim petition till its realization. As the Tribunal has awarded Rs.10,26,000/Â, the appellants shall be entitled to additional amount of
Rs.06,06,456/Â with proportionate cost and interest. The respondent Insurance Company shall deposit the additional amount of Rs.06,06,456/Â with
interest and proportionate costs with the Tribunal within a period of 3 months from the date of receipt of the present order.
Appeal is thus, partly allowed and the impugned judgment and order is modified to the aforesaid extent. However, there shall be no order as to costs.
Registry is directed to transmit back the original record and proceedings of the case to the Tribunal forthwith.