FA/1972/2005 of GUJARAT STATE ROAD TRANSPORT CORPORATION Vs JYSTONABEN AJITKUMAR VYAS on 30 December 2008

Issues

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE MD SHAH)

Heard the learned advocates for the respective parties.

1. Being aggrieved by the part of the judgment and award dated 17.1.2003 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in MACP No.930 of 2000, the present appellant has preferred this First Appeal.

2. On account of the vehicular accident occurred on 11.9.2000 at about 10.30 am which resulted into death of one Ajitkumar who was riding his scooter and proceeding to the place of his service at Gandhinagar. The legal heirs of deceased Ajitkumar – present respondents No.1 and 2 have filed claim petition being MACP No. 930/2000 before the Motor Accident Claims Tribunal (Aux.), Court No.12, Ahmedabad for getting compensation of Rs. 15 lakhs from the present appellant (original opponent No.2) in the claim petition i.e., the Gujarat Road Transport Corporation and against the present respondent No.3 who was driver of the ST bus which

involved in the said accident.

3. The present appellant has filed written statement at Exh.13 but respondent No.3, though served, did not file any written statement before the Claims Tribunal.

The brief facts of the case are as under:

4. The accident took place on 11.9.2000 at about 10.30 am. On the day of the accident, deceased Ajitkumar was going on his scooter to reach the place of his service at Gandhinagar from Ahmedabad and when he was passing over from Chimanbhai Patel Overbridge, one ST Bus Mp/GJ-1-Z-690 came with full speed in a negligent manner and dashed with the scooterist from behind and the accident took place and the scooterist sustained serious injuries and died on the spot.

5. After recording evidenceand after taking into consideration the materials on record, the learned Tribunal has held that respondent No.3, i.e.

the driver of the ST bus was solely responsible for the accident. The Tribunal has partly allowed the Claim Petition and passed order to pay compensation of Rs. 11,94,840/- against the present appellant as well as respondent No.3 with interest at the rate of 12% per annum from the date of the petition till 31.12.1999 and the interest at the rate of 9% per annum from 1.1.2000 till realisation with the proportionate costs. The said judgment and award is challenged by the present appellant, ST Corporation mainly on the ground that the Tribunal has erred in holding that only the ST bus driver was negligent for the said accident and the compensation awarded by the Tribunal is not just and proper and not in accordance with law.

6. We have heard the learned advocate Ms. Roopal Patel, on behalf of the appellant. She has taken the court through the oral as well as the documentary evidence on record and also to the judgment and award passed by the Tribunal. Mainly she has argued that taking into consideration the panchnama and the complaint, deceased-Ajitkumar, the

scooterist also was liable for the accident and so this is a fit case of contributory evidence and in spite of that the learned Tribunal held only respondent No.3-the driver of the ST Corporation liable. In light of this argument, this court has gone through the FIR, panchnama as well as the oral evidence of respondent No.3. As far as the FIR is concerned, it speaks volumes about the sole negligence of the ST driver. It is pertinent to note that the complaint is lodged by one Ratanbhai Kanjibhai immediately after the incident took place. As per the complaint, when the complainant and his friend Jitendra were passing on motor cycle where this accident took place, the ST bus which involved in the accident came with full speed and dashed with the scooterist and thereafter dashed with his motor cycle and the complainant and his friend fell down from the motor cycle and the complainant also received injuries. This document is exhibited before the Tribunal and the same is not challenged by the present appellant by examining the complainant and thus, there is no reason to discard the FIR and the panchnama.

7. We have also gone through the panchnama which is produced at Exh.23 which also clearly shows that the accident took place only because of the sole negligence on the part of the ST driver. We have also gone through the deposition of the respondent No.3-driver of the ST bus which is at Exh.48. Before discussing his oral evidence and oath before the Tribunal, it is required to be noted that though notice was duly served, he did not file any written statement and he has stated on oath before the Tribunal that he did not come to know that the scooterist had come under the rear wheel of the ST bus and he only came to know about this fact from the passenger of the bus. He also admitted that charge sheet is filed against him and criminal case is also pending before the criminal court. It is also to be noted that the ST driver did not report before the police regarding the accident nor he filed any written statement before the Tribunal. In these circumstances, in our opinion, the learned tribunal has, after discussing the evidence on record in great detail, rightly come to the conclusion that only due

to the negligence on the part of the ST bus driver, the accident took place.

8. As far as the quantum of compensation is concerned, the evidence of PW 1, Vaishali Ajitkumar, daughter of the deceased recorded on oath by the Tribunal which is at Exh. 37. As per her evidence, deceased Ajitkumar was working as Section Officer in the Revenue Department of Government of Gujarat, Gandhinagar and was earning Rs.12,500/-. In support of her say, she also produced copy of the Income Tax Assessment Order of the deceased along with challan for the year 1998-99 at Exh.27 and for the year 1999-2000 at Exh.28 respectively. Through her evidence, the statement of Pay of the deceased for the year 2000-2001 also proved and it was exhibited as Exh.31. The claimants have also examined PW 2-Kamalkant Baldev Shah at Exh.45 who was Dy.Section Officer in Sachivalaya and was serving with deceased Ajitbhai. According to this witness, at the time of the accident in question, his pay was Rs.13,700/- in the cadre of Dy.Section Officer and at present his pay is Rs.15,300/-. PW 2 also produced his pay slip

which is at Exhs. 43 and 44. According the evidence of this witness, if deceased Ajitbhai had not died in the accident, his salary would have been more than Rs.15,300/-. The pay slip at Exh.44 clearly shows that this witness Kamalkant Shah was Dy.Section Officer and his gross pay was Rs.15,300/- in the month of August, 2000. Taking into consideration this evidence, the learned Tribunal has rightly held that if the deceased was alive, he would have earned salary more than Rs. 15,300/-. It is also proved through evidence of this witness that post of the deceased was upgraded than the post on which this witness was serving.

9. After taking into consideration the judgment of the Hon'ble the Apex Court in the case of UP STATE ROAD TRANSPORT CORPORATION v TRILOK CHANDRA AND ORS. 1996 (2) GLH 11, the learned Tribunal has rightly calculated the compensation under the head of future loss of income by the method ofDavies' formula. Taking into consideration the age of the deceased at the time of the accident, the Tribunal has rightly applied

9/10JUDGMENT

multiplier of Rs. 12/- for calculating the future loss of income, in the opinion of this court, the Tribuanl has rightly came to the conclusion that the claimants are entitled to get compensation of Rs. 11,66,840/- under the head of future loss of income. So far as the amount of Rs.15,000/- as consortium to and an amount of Rs.2000/- as funeral expenses of the deceased as awarded by the Tribunal is also just and proper and in all the Tribunal has rightly held that the claimants are entitled to get Rs. 11,94,840/- as compensation. As far as the interest part is concerned, in the opinion of this court, it is not required to be interfered with by this court as just and adequate interest has been awarded by the Tribunal.

10. It is rightly submitted by Ms. Roopal Patel that the Tribunal has committed mistake in awarding interest from the date of the petition till 31.12.1999 as the accident took place on 11.9.2000. In the opinion of this court, this is merely a typographical error and it is required to be corrected. Therefore, this appeal is allowed only to

that extent.

11. For the foregoing reasons, this appeal is partly allowed qua, the interest part mentioned in the operative portion of the order of the Tribunal. The interest part is corrected to read as ”the claimants are entitled to interest at the rate of 12% per annum from the date of petition till 31.12.2000 and the interest at the rate of 9% per annum from 1.1.2001 till realisation with the proportionate costs.” So far as the rest of the judgment is concerned, the same will remain unaltered. No order as to costs.

[R P DHOLAKIA,J.]

[M.D. SHAH, J.]

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