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Judgment
Feeling aggrieved and dissatisfied with the judgment and award dated 25th February 2003 passed by the Motor Accident Claims Tribunal (Aux.),
Bhavnagar (hereinafter referred to as “the Tribunal†for the sake of brevity) in Motor Accident Claim Petition No. 538 of 1996, the appellant-
Insurance Company has preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act†for the
sake of brevity).
As the issue of negligence is raised, this matter was directed to be heard with First Appeal No. 350 of 2006.
Following facts emerge from the record of the appeal:
3.1 That, deceased Madansang was driving A Jeep, bearing registration No. GAN-9600 of Nagarpalika on 11th June 1996. The deceased and
Chairman of Octroi Department, Vadhvan Nagarpalika were travelling towards Morbi. The record indicates that when he was travelling back on
Morbi-Vankaner Highway, deceased Madansang was driving the jeep slowly and on the correct side of the road and when jeep reached nearby Meldi
Mata Temple on Morbi Vankaner Highway at about 11.00 p.m., a truck, bearing registration No. MH-04-P-3135 was lying stationary on the middle of
road in clear breach and in violation of the Traffic rules without any indicator or any sign and thus, his Jeep dashed with the stationary truck on its rear
side and due to which, deceased received fatal injuries and died on the spot. The respondents No. 1, 1.2 to 1.6-original claimants, thereafter, preferred
a claim petition under Section 166 of the Act before the Tribunal and claimed compensation of Rs. 60,00,000/=.
3.2 Wife of the deceased, namely, Sajjanben was examined vide Ex. 26. Mr. Khumansinh Bhavsing, working as a conductor in ST Depot, Limbdi was
an eye witness of the incident, and he was examined vide Ex.40. Mr. Bhayabhai Jivanbhai, landlord of the house in which deceased was running a
Diamond factory was examined vide Ex. 41. Mr. Mahebubbhai R. Patha, Account Writer of Sanghavi Chimanlal Harjivandas was examined vide Ex.
Over and above the same, original claimants have also relied upon documentary evidence such as FIR Ex. 27, further statement Ex. 28,
panchnama of the place of accident Ex. 29 and other relevant documentary evidence.
3.3 The Tribunal, after appreciating evidence on record, came to the conclusion that the drivers of both the vehicles ie., Truck as well as jeep were
negligent. After appreciation of evidence and the manner in which accident took place and also considering the vital fact that the truck was lying
stationary/parked on the highway without any indicator or red light, has come to a conclusion that the driver of truck was negligent to the extent of
85% and the driver of Jeep was negligent to the extent of 15%. After appreciating the evidence on record, the Tribunal determined income of the
deceased; including prospective income, to the tune of Rs. 3,75,000/-per annum and after considering age of the deceased as 41 years, deducting 1/3rd
towards personal expenses of the deceased and applying 14 multiplier, the Tribunal awarded Rs. 35,00,000/- as compensation under the head of
“loss of dependencyâ€. In addition, the Tribunal also further awarded a sum of Rs. 10,000/- as compensation under the head of “loss of
consortium†and Rs. 10,000/- for the “loss of estateâ€, and thus, awarded total compensation of Rs. 35,20,000/- and after deducting 15% towards
negligency of the deceased, as a driver of the Jeep, the Tribunal awarded total compensation of Rs. 29,92,000/- to the original claimants with interest
@ 12% per annum from the date of filing of the claim petition till 31.12.2000 and interest @ 9% per annum from 01.01.2001 till its realization with
proportionate cost. Being aggrieved by the said award, the present Appeal is preferred by the Insurance Company.
Heard learned advocate Mr. Vibhuti Nanavati for the appellant and learned advocate Mr. S. B. Tolia for Mr. Harshit S. Tolia, learned advocate for
the respondents No.1, 1.1 to 1.6.
Mr. Vibhuti Nanavati, learned advocate for the appellant has contended that the learned Tribunal has wrongly decided the aspect of negligence.
Mr. Nanavati, relying upon panchnama of the place of occurrence (Ex. 29), contended that the manner in which accident took place ie., at about 11.00
p.m., the driver of Jeep was equally negligent, and therefore, learned Tribunal ought to have considered that drivers of both the vehicles were equally
liable and negligent for the accident. Mr. Nanavati, having taken this Court to the observations made by learned Tribunal on the aspect to determine
the income of the deceased, contended that even though there was no evidence to determine income of the deceased from the agricultural activity as
well as from Diamond factory, so also there was no cogent evidence produced by the original claimants as regards income of the deceased, learned
Tribunal has assessed income of the deceased; including prospective income at Rs. 3,75,000/- which is exorbitant and the same is without there being
any basis. On the aforesaid ground, Mr. Nanavati contended that the appeal deserves to be allowed and the impugned judgment and award deserves
to be modified.
Per contra, learned advocate Mr. S. B. Tolia for Mr. Harshit S. Tolia, learned advocate for the respondents No.1, 1.1 to 1.6-original claimants
submitted that on the contrary the learned Tribunal has not assessed actual income, but calculated prospective income. Relying upon decisions of the
Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680 and Sarla
Verma and others vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121, it was contended by Mr. Tolia that the original claimants
would be entitled to more compensation, as there are seven dependents of the deceased, and thus, instead of 1/3rd deduction towards personal
expenses, 1/7th deduction should be considered. Mr. Tolia has further contended that the appellant would be entitled to Rs. 70,000/- under different
conventional heads, instead of Rs.20,000/-. Mr. Tolia also submitted that, in fact, original claimants had filed cross objections, however, the same were
not pursued further. Learned advocate Mr. Tolia submitted that as the appeal being meritless, it deserves to be dismissed.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Upon considering panchnama of the place of incident Ex. 29 and FIR Ex. 27, it is crystal clear that accident took place during the night at about
11.00 p.m. on the highway between Morbi-Vankaner. A truck is involved in the accident, as per panchnama of the place of occurrence and as per the
evidence on record, this truck was found without there being any indicator and any other sign and was lying stationary. The Tribunal, after properly
appreciating the evidence on record, has rightly come to a conclusion that the stationary truck is a heavy vehicle and thus, the driver of truck was
more negligent than the driver of Jeep. As per the judgment of Apex Court in the case of Archit Saini & Anr. v. Oriental Insurance Company Limited
and Ors., the Tribunal has committed no error in appreciating evidence on record such as FIR and panchnama has correctly determined the
negligence of the driver of the truck. As the stationary truck was lying on the highway without there being any indicator and sign, the same is rightly
considered by Tribunal more negligent than the jeep driver. On the aforesaid ground, therefore, the contention raised by learned advocate Mr.
Nanavati as regard negligency is not accepted.
As far as income of deceased is concerned, though we find that the learned Tribunal has considered and assessed income of the deceased at Rs.
3,37,000/- per annum by considering three different sources of income, and even documentary evidence on record, the original claimants have proved
that the deceased had income from Diamond business, Agricultural activity as well as “Class-B†Contractor. Upon re-appreciation of evidence
available on record, on the contrary, we find that the Tribunal has straightway considered prospective income of the deceased and after considering
his prospective income, itself assessed the total income including, prospective income, at Rs. 3,75,000/- which in our opinion, would be just
compensation.
Mr. Nanavaty, learned advocate for the appellant has contended that the Tribunal has not deducted income tax from the compensation. However,
considering the facts of the case, there were more than 5 dependents and the Tribunal, in fact, ought to have deducted 1/5th amount towards personal
expenses. It is also noteworthy that as per the judgment of Hon’ble Supreme Court in case of Pranay Sethi (Supra), original claimants should have
been granted Rs. 70,000/-under the different conventional heads;. including funeral expenses.
Upon re-appreciation of evidence on record on the aspect of income of the deceased is concerned, we deem it fit to hold that the award passed by
the Tribunal is just and adequate and does not require any interference. Appeal, therefore, deserves to be dismissed and is hereby dismissed.
However, there shall be no order as to the cost in this Appeal.
Registry is directed to send back record and proceedings to the Tribunal forthwith.