- (1.) CHALLENGE in these two appeals filed under Section 173 of the Motor Vehicles Act, 1988 ('the Act' for short) is to the correctness of the judgment and award dated 5.11.1996 rendered in MACP Nos.398 of 1995 and 399 of 1995 by the Motor Accident Claims Tribunal (Main), Bhavnagar, by which both the claim petitions filed under Section 166 of the Act by the respondents/claimants ('the claimants' for short) against the appellant as well as the driver and owner of the truck bearing registration No.GJ -1U -4428 to recover compensation of Rs.14 lakhs in each of the claim petitions on account of the untimely demise of Vallabhbhai Devshibhai Hirpara and Vallabhbhai Nanjibhai Vaghasia in a road accident which took place on 28.3.1995 at about 7 P.M., near village Kosamba, between Dhamrol and Surat, on Ahmedabad - Mumbai National Highway No.8A, has been partly allowed and thereby the claimants of MACP No.398 of 1995, who are the heirs and legal representatives of deceased Vallabhbhai Devshibhai Hirpara, were held entitled to a total compensation of Rs.12,20,000/ - and the claimants of MACP No.399 of 1995, who are the heirs and legal representatives of deceased Vallabhbhai Nanjibhai Vaghasia, were held entitled to a total compensation of Rs.12,40,000/ - together with interest and costs thereon from the date of the application till realization and accordingly the appellant, respondent driver and owner were directed to pay jointly and severally the amount of compensation to the claimants of both the claim petitions.
(2.) AS per the averments made in the claim petitions, on fateful day, Vallabhbhai Devshibhai Hirpara and Vallabhbhai Nanjibhai Vaghasia along with one Valjibhai Jadavbhai Savaliya, who was also injured in the accident, were proceeding in a Maruti Car bearing registration No. GJ -15C -3543 which was driven by Vallabhbhai Nanjibhai slowly and on the correct side of the road. The said car was of the ownership of Amar Textiles Fabrics of which Vallabhbhai Nanjibhai was a partner. All the three persons started their journey from village Savarkundla and they were proceeding towards Surat. When the said car reached near the place of occurrence, a truck bearing registration No.GJ -1U -4428 driven by its driver in a rash and negligent manner and completely on the wrong side of the road came from the opposite direction. It was the case of the claimants that another public career was going ahead of the offending truck. But without taking care of the other vehicles coming from the opposite direction, the driver of the offending truck overtook the truck which was going ahead of it and in that process he left the correct side of the road and came on the wrong side of the road, after leaving the white line divider and entered just opposite the Maruti car, driving it in a rash and negligent manner, in excessive and uncontrollable speed, and dashed his vehicle with the Maruti Car. As a result of the impact, the car was excessively damaged and Vallabhbhai Devshibhai Hirpara and Vallabhbhai Nanjibhai Vaghasia sustained serious injuries and the Valjibhai Jadavbhai Savaliya, who was accompanying them, sustained injuries. Vallabhbhai Devshibhai succumbed to the injuries immediately after the accident while Vallabhbhai Nanjibhai Vaghasia died on the same day during treatment in a hospital at Surat. In respect of the said accident an offence was registered against Punabhai Nanjibhai Koli, the driver of the offending truck, at Kosamba Police Station being CR No.61/1995. On registration of the offence, investigation was carried out. Bodies of both the deceased persons were sent for autopsy. It was further case of the claimants that the accident was the result of rash and negligent driving of the offending truck by its driver. It was further case of the claimants that Punabhai Nanjibhai Koli was the driver of the offending truck and, therefore, he being the tort -feasor was solely responsible for the accident and hence primarily liable to pay compensation to the claimants whereas Sukhdevsinh Ramsinh Jat was the owner of the offending truck and therefore he was liable under the principle of vicarious liability and the said truck was insured with the appellant - United India Insurance Company Limited and, therefore, the appellant is also liable as it has to indemnify the owner for the award passed against him being the insurance company of the offending truck. Therefore, the claimants claimed compensation from all the three opponents jointly and severally. 2.1. Putting forward the claim for compensation, the claimants of MACP No.398 of 1995, being heirs and legal representatives of deceased Vallabhbhai Devshibhai, claimed that the deceased was of 49 years at the relevant time. He was well built and was running diamond factories at Surat as well as at Savarkundla. He owned and possessed 60 bighas of agricultural land situated at two different places; 30 bighas of land situated near village Jasdan under Rajkot District and 30 bighas of land situated at village Karuka. The deceased was earning Rs.75,000/ - per annum from agriculture and Rs.1,50,000/ - per annum from the diamond business. The claimants were fully dependent upon the income of the deceased and on his demise they lost the dependency benefits and on all counts they claimed Rs.14 lakhs by way of compensation from the driver, owner and insurance company of the offending vehicle. 2.2. Putting forward the claim for compensation, the claimants of MACP No.399 of 1995, being the heirs and legal representatives of deceased Vallabhbhai Nanjibhai, claimed that deceased Vallabhbhai Nanjibhai was aged 40 years at the relevant time and he was well built. He was also running a diamond factory at Savarkundla. He also owned and possessed 18 bighas of agricultural land situated within the local limits of Umrala village under Bhavnagar District. He was the partner in Amar Textiles Fabrics at Vapi. He was earning Rs.1,50,000/ - per annum from agriculture and Rs.50,000/ - per annum from diamond business. The entire family was fully dependent upon the income of deceased and on his death they lost dependency benefits. Therefore, they claimed Rs.14 lakhs by way of compensation from the driver, owner and insurance company of the offending truck. 2.3. It may be noted that the driver and owner of the offending truck, though duly served, elected not to remain present before the Tribunal. The appellant - insurance company contested the claim petitions by filing separate written statements in both the claim petitions. The insurance company has denied the factum of accident. It was also denied that the driver of the offending truck was rash and negligent in driving the truck at the relevant time. It was contended that the driver of the truck was driving the vehicle in contravention of the conditions incorporated in the insurance policy and, therefore, the insurer is not liable to pay the damages. It was also pleaded that the driver of the Maruti Car was driving his car in a rash and negligent manner and as a result of his rashness and negligence in driving the car, the accident took place. Therefore, according to the insurance company, the driver of the Maruti Car was solely responsible for the accident. In sum and substance the defence of the insurance company was that the driver of the Maruti car was totally negligent and as a result of his negligence in driving the car the accident took place and therefore the insurance company is not liable to pay compensation. 2.4. So far as the claim for compensation put forward by the claimants is concerned, the age, income and prospective income of both the deceased persons are denied. It was also emphasized that there was no loss to the claimants so far as income earned from the partnership firm as well as the income earned from agriculture by both the deceased persons are concerned. In sum and substance, the insurance company has denied the claim on all counts and prayed to dismiss both the claim petitions filed by the claimants. 2.5. The Tribunal, after considering the oral as well as documentary evidence and more particularly complaint Ex.95, panchnama Ex.19 and oral evidence of injured Valjibhai Jadavbhai recorded at Ex.91 who was travelling with both the deceased persons in the Maruti car and survived in the accident, came to the conclusion that the Maruti car was proceeding from north towards south and truck was coming from south towards north i.e., from the opposite direction and as per the panchnama the Maruti car was found completely on the eastern direction of the road which was the correct side of the car and the truck was found extremely on the wrong side of the road. From the above position, it was found that the truck, after coming on the wrong side, dashed with the Maruti car as a result of which the accident took place. Therefore the Tribunal held that the driver of the truck was solely responsible for causing the accident and on account of his rashness and negligence in driving the truck, the accident in question took place in which two persons lost their lives and one person was injured. 2.6. So far as quantum of compensation claimed by the claimants is concerned, the Tribunal has assessed the income of deceased Vallabhbhai Devshibhai at Rs.1,50,000/ - per annum and after deducting 1/3rd for personal upkeep, arrived at the dependency at Rs.1 lakh per annum and thereafter applied 12 multiplier and the datum figure was worked out at Rs.12 lakhs to which Rs.20,000/ - was added as conventional amount towards loss of estate and thus awarded Rs.12,20,000/ - together with interest and costs to the claimants of MACP No.398 of 1995 as compensation for the death of Vallabhbhai Devshibhai Hirpara whereas in MACP No.399 of 1995, the Tribunal has assessed the income of the deceased Vallabhbhai Nanjibhai at the same rate and applied the same multiplier and awarded Rs.12,00,000/ - under the head of loss of dependency benefit to which Rs.20,000/ - was added for mental pain, shock and sufferings and Rs.20,000/ - was also added for loss of expectation of life and thus awarded Rs.12,40,000/ - together with interest and costs to the claimants of MACP No.399 of 1995 as compensation for the death of Vallabhbhai Nanjibhai. 2.7. It is this judgment and award which has given rise to instant batch of two appeals at the instance of the insurance company - United India Insurance Company Limited.
(3.) MR . Vibhuti Nanavati, learned advocate for the appellant -insurance company in both the appeals, has contended that he challenges the award to the extent of Rs.7,20,000/ - in First Appeal No.1311 of 1997 whereas Rs.7,40,000/ - in First Appeal No.1312 of 1997. 3.1. So far as the negligence on the part of the driver is concerned, it is contented by him that the Tribunal, without appreciating the documentary evidence in the form panchnama Ex.19 showing the damage caused to the Maruti car and damage caused to the truck held that the driver of the truck was solely responsible for causing the accident. If the evidence with respect to negligence is properly appreciated it would be clear that the driver of the Maruti car was negligent at least to the extent of 50%. 3.2. According to him, the Tribunal has wrongly assessed the prospective income of both the deceased at Rs.1,50,000/ - per annum by accepting uncorroborated testimonies. It is emphasized by him that it is settled by catena of decisions that for assessing the income of a deceased person derived from agriculture, it has to be calculated in terms of the managerial capacity of the deceased to manage agricultural operations. In the instant case, there is not an iota of evidence on record as to what was the exact income earned by the deceased persons from agriculture. It is also contended by him that to establish that the deceased were running diamond polishing business, nothing is produced on record. In sum and substance, according to Mr. Nanavati, there is no evidence on record, except the income tax returns showing the income of the deceased from diamond polishing business. It is also highlighted by him that even if it is accepted that both the deceased were carrying on business of diamond polishing, the capital invested in the said business has remained intact and same can be employed by their heirs in some other investment so that they can earn income from them. It is therefore submitted by him that the impugned award under the appeals is excessive and exorbitant and it is on higher side and hence it requires to be modified by awarding compensation to the extent of Rs.5 lakhs only to the claimants in both the claim petitions. He, therefore, urged to reduce the compensation to RS.5 lakhs with proportionate costs and interest thereon in each claim petition and allow both the appeals partly. In counter submission, Mr. A.A. Qureshi, learned advocate for Mr. Shakeel Qureshi, learned advocate for the claimants in both the claim petitions, has contended that the FIR and Panchnama speak volumes about the negligence on the part of the driver of the offending truck. There is no evidence to the effect that the driver of the Maruti car - Vallabhbhai Nanjibhai Vaghasia was negligent in driving the car. On the contrary, there is evidence on record to show that he was driving the car at a moderate speed and on the correct side of the road. In this connection, has has drawn the attention of this court to the oral evidence of sole eye witness Valjibhai Jadavbhai Savaliya who was travelling in the Maruti car at the relevant time and also received injuries in the very accident. He has unequivocally deposed before the Court that the driver of the offending truck was extremely on wrong side of the road and he was driving the truck at an excessive speed which has caused the accident. Therefore, the Tribunal has rightly reached to the conclusion that the driver of the offending truck was solely responsible for causing the accident. 4.1. So far as the income of the deceased persons from the business is concerned, according to him, both the deceased persons were running diamond polishing business and deceased Vallabhbhai Nanjibhai was also a partner in the partnership business in the name and style of Amar Textiles Fabrics and also holding agricultural land. Therefore, the Tribunal has rightly assessed the prospective income of both the deceased persons at Rs.1,50,000/ - per annum and assessed the dependency benefits at Rs.1 lakh per annum. Mr. Qureshi, therefore, submitted that the impugned award is neither excessive nor on higher side requiring interference of this Court. He, therefore, urged to dismiss both the appeals.;