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Judgment
Being aggrieved and dissatisfied by the judgment and award dated 30.10.2012 passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad in Motor Accident Claims Petition No.701 of 2005, the insurance company has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”).
The following facts emerge from the record of the appeal 2.1 That the deceased Mansinh was driving his motorbike bearing registration no.
GJ-7-AF 8403 on 05.02.2005 along with his friend Amarsinh being pillion rider and was going to Dakor. The record indicates that while deceased was passing through gayo-na-vada on Mahudha-Dakor road, the truck bearing registration no. GJ-7Y-92 was parked in a stationary condition without any reflector or tail lights because of which the motorbike dashed with the stationary truck at about 7.30 PM and the deceased received serious injuries and succumbed to the same. FIR was lodged with Dakor Police Station at Exhibit 55.
2.2 The respondents-original claimants preferred claim petition under section 166 of the Act and claimed compensation of Rs.40,00,000/. It was the case of the original claimants that the deceased was resident of village Khaladi and was working as Primary Teacher on monthly pay of Rs. 10,071/. One of the claimant, father of the deceased was examined at exhibit 29. The original claimants also examined one Bharatsinh at exhibit 39 who was working as a teacher in Bhana Pocha school and relying upon the circulars of the State Government, came to the conclusion that in 2007, the deceased would have earned Rs.23,000/ as salary and after deducting 1/4th by applying multiplier of 15, awarded Rs. 31,05,000/ as compensation under the head of loss of dependency and also further awarded Rs. 60,000/ towards medical expenses, Rs.1,00,000/ towards lost of estate, Rs.1,00,000/ as loss of expectation of life, Rs. 30,000/ towards loss of consortium, Rs. 6,400/ as damage to the bike, Rs.2,500/ as attendant charges, Rs. 2,000/ as transportation, Rs. 10,000 towards pain, shock and suffering and Rs. 5,000/ as funeral expenses and thus awarded total compensation of Rs. 34,20,900/. 2.3 The Tribunal considering the manner in which the accident had taken place, came to the conclusion that the driver of both the vehicles, i.e., the motorbike as well as the tempo traveller were negligent for the accident and considered that the deceased as driver of the motorbike was negligent to the extent of 20% and thus awarded Rs.27,36,800/ as net compensation along with 9% interest from the date of filing of the claim petition till its realisation. Being aggrieved by the said award, the insurance company has preferred this appeal.
Heard Mr. Dakshesh Mehta, learned advocate for the appellant and Mr. Mohsin Hakim, learned advocate for the original claimants. Though served, no one appears for respondent no.2 and have also perused the original record and proceedings of the Tribunal.
Mr. Dakshesh Mehta, learned advocate appearing for the appellant contended that the Tribunal has erred in considering the future rise in income and has wrongly come to the conclusion that in the year 2007, the appellant would be earning Rs. 23,000/ as salary. 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, Mr. Mehta contended that the evidence in form of pay-slip as well as deposition of Bharatsinh at exhibit 39 and even as per the case of the original claimants, the income of the deceased was Rs. 10,071/ per month on the date of the accident and therefore, Mr. Mehtal contended that the respondents-original claimants would be entitled to compensation under loss of dependency based upon the income on the date of the accident. It was also contended by Mr. Mehta that the Tribunal has materially erred in awarding Rs. 1,00,000/ under the head of loss of estate and Rs. 1,00,000/ under the head of loss of expectation of life. Mr. Mehta also contended that the Tribunal has wrongly come to the conclusion that the driver of the tempo traveller was negligent to the extent of 80%. According to Mr. Mehta, considering the manner in which the accident has occurred, the Tribunal ought to have held the driver of both the vehicles equally liable, i.e., to the extent of 50%. Mr. Mehta contended that thus, the Tribual has granted excessive compensation instead of just and adequate compensation and therefore, the appeal deserves to be allowed by modifying the award.
Per contra, Mr. Hakim has supported the impugned award. Mr. Hakim contended that the Tribunal has correctly assessed the income of the deceased to be Rs.23,000/ as deceased would have earned salary of Rs.23,000/ in the year 2007 as deposed by the witness of the original claimants at exhibit 39. It was also contended that the Tribunal has correctly granted Rs.1,00,000/ under the head of loss of estate and Rs. 1,00,000/ under the head of loss of expectation of life and the same does not require any modification. Relying upon the judgment of this Court in the case of National Insurance Company vs. Varshaben Bharatbhai Gohil & Ors. reported in 2013(1) GLR 405, Mr. Hakim contended that on the contrary, the Tribunal has erred in coming to the conclusion that the deceased who was driving the smaller vehicle, i.e., motorbike is negligent to the extent of 20%. Mr. Hakim contended that the evidence clearly shows that the tempo traveller was stationary without any back light or reflectors and the accident has occurred around 7.30 pm and because of darkness, the deceased dashed with the stationary truck and therefore submitted that the driver of the truck was solely negligent. Mr. Hakim also contended that the deceased had to undergo treatment and had to undergo expenses for attendant charges and transportation and even had to suffer pain, shock and suffering and this Court while awarding reasonable compensation under such heads, may enhance the same. Mr. Hakim submitted that thus the appeal by the insurance company is totally without any merits and the same deserves to be dismissed.
No other or further submissions have been made by the learned counsel appearing for the parties.
Upon considering the submissions made and on perusal of the impugned judgment and award as well as the original record and proceedings, the Tribunal has determined the income of the deceased at Rs. 23,000/ (rounded figure) considering the fact that in the year 2007, the deceased would have received such salary, however, the evidence on record clearly establishes the fact that on the date of the accident, i.e., on 05.02.2005, the deceased was working as a primary teacher at village Baladhi and had salary of Rs. 10,071/. It is also on record that the revision in pay was made effective from 01.01.2006, i.e., after the date of the accident and thus the Tribunal has committed an error in determining the income. The last pay certificate at exhibit 61, i.e., of the month of January 2005 to February 2005, the deceased had salary as under
Pay Rs.5,900/
Dearness Allowance Rs.3,776/
HRA Rs. 295/
Medical Rs. 100/
Total Rs.10,071/
Over and above the same, Rs.2,000/ was deducted towards regular gratuity fund, Rs. 1070/ as LIC premium, Rs. 100/ as group insurance premium, Rs. 3,825/ as payment towards loan to the society and Rs.60/ as professional tax.
Salary would mean gross pay minus tax and thus, at the time of the accident, the deceased was earning Rs. 10,071/ less Rs. 60/ towards tax, total would come to 10,011/ and thus, future pay based upon the calculation given by the Inspecting Officer, Taluka Panchayat, Mahudha, exhibit 84 and so also the report of service law consultant cannot be considered while determining the income at the time of the accident. Following the judgment of the Apex Court in the case of Pranay Sethi (supra), salary would mean gross pay minus tax and in the case on hand, the same would be Rs. 10,011/ which is rounded of to Rs. 10,100/. The claimants would therefore be entitled to compensation under the head of loss of dependency as under Rs.10,100/ + Rs.5,050/ (50% prospective income) = Rs. 15,150/ Rs.3,787/ (1/4th towards personal expenses) = Rs. 11,363/ X 12 = 1,36,356/ X 16 (multiplier) = 21,81,696/
Over and above the same, the respondents original claimants would be entitled to Rs. 70,000/ under the conventional head, Rs. 60,000/ as medical expenses as awarded by the Tribunal. Considering the manner in which the accident has taken place and the deceased had to undergo the treatment for almost a week, the respondents-original claimants would be entitled to Rs. 20,000/ under the head of pain, shock and suffering, Rs. 5,000/ as attendant charges and Rs. 3,000/ as transportation charges. However, the appellants would not be entitled to any compensation as damage to the bike. Having come to the aforesaid conclusion, the respondents-original claimants would be entitled to compensation as under
Loss of dependency Rs.21,81,696/
Conventional heads Rs. 70,000/
Medical expenses Rs. 60,000/
Pain, shock and suffering Rs. 20,000/
Attendant charges Rs. 5,000/
Transportation charges Rs. 3,000/
Total Rs.23,39,696/
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The evidence clearly shows that the truck involved in the accident was found to be in a stationary position without their being any back light or any reflectors. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Archit Saini & Anr. vs. Oriental Insurance Co. Ltd. reported in 2018 (3) SCC 365. The Hon'ble Apex Court has held as under “7.In the present appeals, the moot question is whether the High Court“ committed manifest error in reversing the well considered decision of the Tribunal on Issue 1 answered against the respondents, instead concluding that it was a case of 50% contributory negligence on the part Of the deceased driver of the Maruti car.
8.After having perused the evidence of PW 7, site map (Ext. P-45) and the detailed analysis undertaken by the Tribunal, we have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived at by the Tribunal on Issue 1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well-considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW 7 as being unreliable nor has it discarded his version that the driver of the Maruti car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The site plan (Ext. P-45) reinforces the version of PW 7 that the truck (Gas Tanker) was parked in the middle of the road but the High Court Opined to the contrary without assigning any reason whatsoever. In our view, the site plan (Ext. P-45) tiled along with the charge-sheet does not support the finding recorded by the High Court that the Gas Tanker was not parked in the middle of the road. Notably, the High Court has also not doubted the claimant’ s plea that the Gas Tanker/offending vehicle was parked without any indicator or parking lights. The fact that PW 7 who was standing on the opposite side of the road at a distance of about 70 ft, could see the Gas Tanker parked on the other side of the road does not discredit his version that the Maruti car coming from the opposite side could not spot the Gas Tanker due to flashlights of the oncoming traffic from the front side.
It is not in dispute that the road is a busy road. In the cross-examination, neither has any attempt been made to discredit the version of PW 7 nor has any suggestion been made that no vehicle with flashlights on Was coming from the opposite direction of the parked Gas Tanker at the relevant time.”
Similar view is taken by the Division Bench of this Court in the case of National Insurance Company vs. Varshaben Bharatbhai Gohil (supra), wherein it was observed as under “7. It is clear from the evidence recorded before the tribunal and placed before this Court that cause of accident was parking on the highway of the truck without any reflectors or light and indicators during night hours. It is common place that all the vehicles and particularly cars are plied at high speed on the wider highways and the traffic is increasing by the day. Therefore, even without any specific evidence in that regard, it could be assumed that vehicles on both sides of the road would be plying at high speed and the vehicles approaching from opposite side with their headlights on would not allow the driver of any vehicle to see anything on his side of the road on account of being dazzled by the lights. There cannot be a presumption that driver of any vehicle would be so negligent as to dash into the back of another vehicle to commit a fatal accident inspite of seeing any obstruction on the left side of the road. Therefore, it is very difficult to attribute any negligence on the part of the driver dashing his vehicle into a parked vehicle. In the facts of the present case, the car was driven by brother of the deceased and he is not stated to have been seriously hurt, which leads to the inference that the driver would have tried to take a turn at the last moment after seeing the stationary truck standing ahead in the dark.
The panchnama of the scene of incident hardly sheds any clear light on the position of the vehicles at the site of the road. The provisions with regard to proper parking are codified in Chapter VIII of Motor Vehicles Act, 1988, but more often they are observed in their violation. This Court (Coram:M.B.Shah, J. as His Lordship then was), after detailed discussion of the circumstances on road in Saudagarsing Chhajusing and Others v. Jashodaben and Another [1986 ACJ 1070] has held as under:
“7. With regard to the first submission, in our opinion, the learned Tribunal has discussed this aspect in detail. He has taken into consideration the panchnama, Exh.28. The panchnama clearly shows that there was no reflector or any device at the back of the trailer which would make the existence of the parked trailer on the road visible to the driver of any vehicle arriving from the southern side in the darkness of early morning. Only one red cloth was kept tied to a rod in the right back of the trailer. The truck trailer which was parked on the road was a huge vehicle of width of 8 ½ feet and length of 72 ½ feet. The battery wires of the truck were hanging loose which would mean that the lights of the vehicle could not have been kept on. It is also an admitted fact that the right front tyre of the truck was in burst condition. ................. ....
It is an undisputed fact that Ranjitsinh was travelling as a pillion rider on the motor cycle. It is his say that the motor cycle was driven at a low speed and when they reached near the place of incident, one truck was seen arriving from Ahmedabad side in the left half portion of the road and the headlights of that oncoming truck were fully on with the result that he and Gemalsing were dazzled by the lights and the motor cycle dashed with the stationary truck trailer. .....................
.............
From the above discussion it is proved that at dark night time on a national highway where there was no other light and which was open to fast moving traffic the truck and trailer of 72 ½ feet length and 8 ½ feet width was parked without any parking light and with no reflectors and due to that the accident had occurred. Even assuming that the motor-cyclist was driving his vehicle slightly fast, yet it cannot be said that there was contributory negligence on his part because on a national highway and that too at night time it cannot be expected that the vehicle should be driven at a slow speed. Further it cannot be expected that the driver of a vehicle should visualize that there might be some stationary vehicle which could not be seen from a distance of few paces and therefore he should drive the vehicle slowly. Under section 81 of the Motor Vehicles Act it is provided that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a position or in such a condition or in such circumstances as to cause or to be likely to cause danger, obstruction or undue inconvenience to other users of the road. ......................”
Upon re-appreciation of the evidence on record, the accident has occurred only because of the sole negligence of the driver of the truck. The accident has occurred at 7.30 PM on 05.02.2005. The parties have also adduced evidence (Exhibit 82) to the effect that the sunset on 05.02.2005 took place at 6.32 PM. Even the statement of the driver of the truck before the police at exhibit 48, shows that the truck was stationary as the diesel was exhausted and the driver has not stated that there was any sign or reflector on the rear side of the truck which was loaded with stones. Upon re‐ appreciation of the evidence in form of panchnama as well as FIR, the driver of the truck alone was solely negligent for the accident.
Thus, in view of the aforesaid, the respondents original claimants would be entitled to total compensation of Rs.23,39,696/ with interest at the rate of 9% p.a. from the date of filing of the claim petition till its realisation. As the Tribunal has awarded Rs.27,36,800/, the appellant insurance company would be entitled to refund of Rs.3,97,104/ with proportionate cost and interest. The appeal is thus partly allowed. The impugned judgment and award stands modified to the aforesaid extent. Record and proceedings be transmitted back to the Tribunal forthwith.