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Judgment
N.V.Anjaria, J
Heard learned advocate Mr. V. C. Thomas for the appellant insurance company and learned advocate Mr. Nishit Balodhi for the respondents
claimants.
The present first appeal is directed against judgment and award dated 3rd November, 2018, of the Motor Accident Claims Tribunal, Vadodara, in
Motor Accident Claim Petition No. 1003 of 2006 . The operative portion of the judgment and award reads as under,
“1. The present Claim Petition is hereby partly allowed with costs and interest against the opponent Nos. 2 to 4.
The present Claim Petition stands dismissed qua opponent Nos. 1 and 5.
Applicant do recover Rs. 2,32,800/- (Rupees Two Lakhs Thirty Tow Thousand Eight Hundred only) with interest @9% per annum from 16.3.2017
till realization alongwith proportionate costs from the opponents no.2 to 4, jointly and/or severally.
Accordingly, the opponent Nos. 2 to 4 shall jointly and/or severally deposit the aforesaid amount of compensation together with interest @9% per
anum from 16.3.2017 till realization alongwith proportionate costs in the office of this Tribunal, within one month from the date of this judgment.
Principal amount of interim / ad hoc compensation granted under section 140 of the MV Act, if any, shall be deducted from finally awarded
compensation.
Order for apportionment and disbursement shall be made after deposit of amount. However, Court Fees shall be first charged, if not paid.
Opponents are directed to scrupulously follow the guidelines issued by the Hon'ble High Court of Gujarat in the case ofH ansagauri Prafulchandra
Ladhani & Ors. vs. Oriental Insurance Co. Ltd. & Ors. [2007 ACJ 1897] qua TDS.
Award be drawn accordingly.â€
The proceedings of appeal arose out of the accident which took place between three vehicles at Vadodara-Mumbai highway on 15th September,
2005. The applicant was going to his factory in his Maruti Van bearing registration No. GJ-6-AA-3618. Tavera car bearing registration No. GJ-5-CF-
1764 was proceeding ahead whereas one another Maruti Zen Car bearing registration No. GJ-6AA-4752 was moving behind the Maruti Car of the
applicant. Tavera car appears to have applied sudden break. According to the claimant. application of sudden break by the Tavera car resulted into
dashing of Maruti van with Tavera. The Maruti Zen Car which was proceeding from behind also lost its control to dash with Maruti van.
In the impact, the deceased received comminuted fracture injury on shaft femur right with fracture of neck on 5th Metacarpal right and other other
bodily injuries.
3.1 The claim petition came to be filed before the Tribunal for compensation of Rs. 15,00,000/-. The applicant appears to have died subsequently
compensation was claimed for injuries it was unconnected with the accidental injuries.
3.2 The Tribunal appreciated the case of the applicant that he was doing business to earn yearly 1,75,000/- and on account of the accidental injuries,
his income stood reduced. The appellant insurance company appeared to contest the claim. The petition was however amongst three drivers, neither
driver of the Tavera vehicle nor that of Maruti zen vehicle appeared in the box to lead evidence. The widow of the applicant who entered the witness
box was not an eye witness.
3.3 In order to prove the income, the applicant relied on income tax returns for the financial years 2002-2003, 2003-2004 and 2004-2005 produced on
record together with the balance sheet and profit and loss account. The total income of three years taken at average to arrive at figure of Rs. 1,67,098
and after deducing the tax liability it was taken as 1,50,300/- since the age of the injured was 54 years and since the factum of road accident injury
died due to natural death after we years of road accident, multiplier of 11 was adopted as per the guidelines in Sarla Verma vs. Delhi Transport
Corporation [ (2009) 6 SCC 121].
3.4 On the basis of the physical disability certificate Exhibit 72 which revealed 40% physical impairment, the total functional loss of body as a whole
was taken as 15%. Accordingly, compensation of Rs. 2,47,995/- rounded upto 2,48,000/- was determined to be awarded by the Tribunal.
3.5 The Tribunal thereafter awarded Rs. 25000 towards pain shock and suffering plus Rs. 10,000/- towards special diet, attendant charges,
transpiration charges etc. totaling to Rs. 3,58,150/- in total.
Despite strenuous efforts by learned advocate for the appellant he could not demonstrate any error in the qauntum of compensation assessed by the
Tribunal as above. Learned advocate for the appellant next submitted that the Tribunal misdirected himself in assessing contributory negligence.
The Tribunal attributed negligence of Tavera car upto 65% whereas the deceased was held negligent to the extent of 35% having regard to the
nature and manner of accident. As noted above, there vehicles were involved in the accident. Ahead proceeding was Tavera car. Tavera car was
succeeded by Maruti Van driven by the deceased. It was followed by Maruvi Zen car. Tavera car proceeding first suddenly applied break in the
middle of the road. It resulted into dashing of Maruti van car with Tavera car. Maruti Zen car coming from behind was also collided with Maruti van.
The Tribunal observed that driver of Tavera car did not enter into the witness box. Therefore, evidence is not led to suggest that there was
occasion to apply break abruptly, however, at the same time evidence is not available to conclude that the deceased had kept sufficient distance while
proceeding behind the Tavera car as the panchnama of the place of the accident did not indicate the break marks on the road. The Tribunal held that
nothing was suggestive that any one of the vehicles had taken sufficient and due care.
6.1 Regulation 23 of Rules of the Road Regulations, 1989 requires driver of motor vehicle moving behind another vehicle to keep sufficient distance.
At the same time regulation 24 contemplates that no driver of vehicle shall apply break suddenly unless it is necessary to do so for safety reasons. On
either count as noted above, evidence was not available. The Tribunal has assessed negligence of Tavera car to the extent of 65% and that of the
deceased who was driving Maruti van car to the extent of 35% on the basis of the over all circumstances and from the manner and nature of the
accident. It could not be said that Tribunal faulted in assessing negligence in the totality of circumstances and in the context of facts and evidence
available.
For the foregoing reasons and discussion, the appeal stands meritless and the same is hereby dismissed.
Order in Civil Application
In view of dismissal of the main First Appeal, no orders are required to be passed in the Civil Application. Accordingly, the same stands disposed of.