H.K. Rathod, J.
1. Heard learned advocate Mr MG Nagarkar appearing on behalf of the Ahmedabad Municipal Corporation through its Transport Manager - Appellant and learned advocate Mr Sandip C Shah appearing on behalf of the respondents -claimants in both the appeals. Claimant Urvi has filed cross-objection. All these matter are decided by this common judgment and order because it arise from one accident.
2. Learned advocate Mr. Nagarkar raised contention before this Court that the Tribunal has commited gross error in not considering the contributory negligence on the part of the scooterist who has no licence and three persons riding on the scooter. He also raised contention that Tribunal has totally ignored the driver's version as deposed before the Tribunal vide ex. 65. He also submitted that no cross has been made by the claimants of the driver for contributory negligence. He submitted that Ex. 20 written statement filed by the appellant where these contentions are raised by the appellant. He submitted that the Tribunal has committed gross error in holding the bus driver solely responsible for the accident. Except that, no other submission is made by learned advocate Mr Nagarkar.
3. In respect to FA No. 4092/1996, where Urvi is Respondent - claimant. Learned advocate has raised same contention that because of the contributory negligence, the award of compensation in favour of Urvi-claimant is on higher side.
4. Learned advocate Mr. Sandip Shah submitted that in respect to FA No. 4091/1996, a death of Nimish, Tribunal has rightly awarded compensation and for that Tribunal has not committed any error which requires interference. He submitted that Tribunal has rightly appreciated oral evidence of driver and Shefali and other two persons, therefore, this being appreciation of facts on the basis of record after considering the complaint and panchnama, this Court may not interfere in such findings of facts. Learned advocate Mr. Shah submitted that Nimish was having the licence which was produced before the Tribunal by the claimant.
5. Learned advocate Mr. Shah submitted that disability certificate of 29% produced on record, but it was agreed between the parties reducing 9% for the disability suffered by Urvi claimant but Tribunal has not awarded any compensation for this 9% disability while assessing the future prospectus of the claimant Urvi, therefore, cross objection is filed in case of Urvi claimant. The cross-objection is filed for remaining amount of Rs. 1,18,000/- which has not been granted by the claims Tribunal, meaning thereby, rest of the amount is claimed in the cross objection by the claimant.
6. I have considered the submissions made by both the learned advocates and I have perused the award passed by claims Tribunal. The accident occurred on 23.3.1988 when deceased Nimish was going on scooter bearing registration No. GJJ 8478. He was going to bring home his sister Urvi from the school where she had gone to appear in examination. He was returning from Naranpura and was passing by Commerce College vide Memnagar, at that time, his uncle's daughter Shefali was standing at the Commerce College bus stand. He gave her lift on the scooter. From there he was going towards Navrangpura road crossing. He was driving the scooter on the left hand side of the road at a moderate speed. When the scooter was passing by Navrangpura bus stand, one AMTS bus bearing registration No. GRU 8577 came from the direction of Navrangpura bus stand. It was being driven by the opponent No. 1 and owned by the opponent No. 2. The bus came at a great speed and was being driven rashly and negligently, therefore, front portion of the bus dashed with the left portion of the scooter. All the three scooterists were thrown aside and the scooter was dragged to some distance. All the three of them sustained injuries. Deceased Nimish succumbed to the injuries, Urvi and Shefali also recieived some injuries. Injuries to Urvi were more serious and the scooter was also damaged, therefore, claim petition was filed by respective claimants. Before the Claims Tribunal, appellant has filed reply vide Ex. 21 and 20 in respect to both the Claim Petitions, thereafter, the Claims Tribunal has framed the issue vide ex.25 and examined the matter first for negligence and then decided the compensation in both the cases.
7. Learned advocate Mr Nagarkar submitted that from Navrangpura bus stand the driver has took the bus outside the bus stand and crossed the divider going to right side, meanwhile the scooterist came and dashed with the bus. He submitted that Tribunal has not properly appreciated the evidence of driver vide ex. 65 and misunderstood the evidence of driver, therefore, the Tribunal has committed gross error. It is relevant to appreciate the discussion made by the Claims Tribunal after considering the complaint, panchnama and evidence of respective parties, therefore, para-5 of the award is quoted as under:
5. So far as the question of negligence is concerned, we have before us ocular evidence of eye witness Shefali ex. 61 who was on the scooter at the relevant time of the occurrence of the accident. On behalf of the opponent, driver of the bus Jeshingbhai Valabhai Solanki is also examined at ex. 65. Obviously, their versins appear to be an effort to fasten the liability of the accident on each otherside. Jaisingbhai examined at ex. 65. has stated that he was driving the bus cautiously but the three scooterists came at a great speed and dashed with the bus. Whereas, according to Shefali the bus came from the left hand side while coming out of Navrangpura bus stand. It came at a great speed and dashed with the scooter. Over and above the ocular evidence there is a complaint at ex. 49, panchnama of the scene of offence at ex.50. It is undisputed in this case that the bus was coming out of the bus stand when the accident occurred. In the cross-examination the driver of the bus Jaisingbhai ex. 65 has stated that when he saw the scooter for the first time it was at a distance of 10ft and at that time the bus was in motion and at that time the front left portion of the bus had come on the road i.e. Out of the bus stand. He has also admitted that the accident had not occurred at that place. Though he had tried to disown the liabilities stating that the accident has not occurred there, the panchnama ex. 50 reveals the distance of the place of occurrence and the edge of the road on the bus stand side which is much more than 4 ft. It undoubtedly goes to show that had he stopped the bus there and then when the scooter was coming at a distance of 10ft, he could have avoided the accident. Simply because deceased Nimish and other two persons were sitting on a scooter that itself does not fasten them with the responsibility of negligent driving and the fact that he had no licence if at all believed to be proved cannot brand him as negligent. In Lalchand v. Kanta : (1993)IIILLJ911MP , it is held that the insurance company had taken a defence that the driver of the vehicle in question had no licence but had failed to produce evidence in establishing that the driver had no licence. Despite the direction from the Court, the driver did not produce licence. In such a case adverse inference cannot be drawn against the driver and the insurance company is not exempted from the liability. It further held that the burden lies on the insurance company to prove that the driver do not possess the licence. Here when the opponent comes with the case that deceased Nimish had no licence, that contention has not been proved. Moreover, even if it is proved, it can be said that he is driving the vehicle in violation of R.T.O. Rules. A similar view is taken in United India Insurance Company Ltd. v. Jameela Beevi : AIR1991Ker380 . Thus, simply because there are three persons on the scooter or that the driver of the scooter had no licence, does not obsolve the driver of the bus from the liability of the accident which he could have very well avoided by stopping the bus the moment he saw the scooter coming from the right hand side. It is a very well known traffic rule that the vehicle going on the main road, must be permitted to pass first and therefore, the driver of the bus ought to have allowed the scooter to pass and ought to have brought out the bus slowly. Thus, in my opinion, the opponent No. 1 is solely responsible for the accident. I, therefore, decide issue No. 1 accordingly.
8. From the aforesaid discussion in para-5, ex. 49 is complaint and ex. 50 is panchnama, it was undisputed fact between the parties that bus was coming out of the bus stand when the accident occurred. Driver admitted in his evidence ex. 65 that when he saw the scooter for the first time, it was at a distance of 10 ft and at that time the bus was in motion and at that time the front left portion of the bus had come on the road, that is, out of the bus stand and accident was not occurred at that place, but panchnama ex. 50 reveals the distance of the place of occurrence and the edge of the road on the bus stand side which is much more than 4 ft. Therefore, it goes to show that had he stopped the bus there and then when the scooter was coming at a distance of 10 ft, he could have avoided the accident. Simply because deceased Nimish and other two persons were sitting on a scooter that itself does not fasten them with the responsibility of negligent driving [see : AIR2008MP18 MP Full Bench]. Ordinarily, the responsibility of the heavy vehicle is more in comparison to the small vehicles. From Navrangpura bus stand bus was coming out, from it, naturally right side turn must have to be taken which go to the extreme left side of the road and then to turn in the proper place on the road, on that occasion, he saw 10ft ahead scooterists, even though bus has not been stopped there, ultimately, it has been dashed to the left side of the scooter and looking to the photographs which were on record before the Claims Tribunal, a scooter was totally damaged lying in the front portion of the bus. The damage to bus on right side of the bumper of front portion and there was a dent of 1 ft and 8 inch on the bus and right side light was also broken and there was middle portion also having dent. Comparison to the damage to the bus and damage to the scooter, whole front portion of the scooter including chassis was broken, gavander also broken. The front seat also bent and carrier of back-side also broken and damage to the engine. This suggests the impact by bus to the scooter, otherwise, this much damage may not cause to the scooter, therefore, according to my opinion, there was no negligence on the part of the scooterist when he was ahead to 10 ft. from the bus as per the evidence of the driver Jaisingbhai ex. 65, then a care is to be taken by the driver of heavy vehicle after seeing the small vehicle to ahead 10 ft, but that care was not taken properly and due to carelessness of the driver accident had occurred and there was no contributory negligence at all of the scooterist. Therefore, according to my opinion, the finding given by the Tribunal holding solely the driver of the bus responsible, is correct finding based on record after considering the oral evidence, complaint and panchnama produced on record by the respective parties. For that, the Claims Tribunal has not committed any error, therefore, contention raised by learned advocate Mr. Nagarkar cannot be accepted and the same is rejected (see (2008)6 SCC 767).
9. Learned advocate Mr. Nagarkar raised contention that without any sufficient evidence on record, the Claims tribunal has decided the quantum of Rs. 1,95,000/- in favour of the claimants. He submitted that in light of Rs. 900/- salary received by the deceased Nimish, the Claims Tribunal has fixed Rs. 3000/- being loss of dependency of claimant,but he was unmarried therefore, Rs. 1000/- has been taken as dependency. Therefore, he submitted that only Rs. 1000/- considered to be income and cannot be considered to be future income of the deceased, therefore, Claims Tribunal committed gross error in granting the compensation in favour of the deceased.
10. I have considered the submissions made by learned advocate Mr. M.G. Nagarkar and Mr. Sandip Shah. The discussion in para-7 of the award made by the Tribunal while fixing the compensation is quoted as under:
So far as quantum in MACP No. 237/88 is concerned, petitioners No. 1 and 2 are father and mother of deceased Nimish. The occurrence of his death on account of a vehicular accident is not in dispute. Moreover, ex. 66 a copy of the post mortem report shows that he died on the date of the accident due to the injuries sustained by him during the accident. It also speaks about the history of the vehicular accident. Thus, the fact that Nimish died on account of the aforesaid vehicular accident is amply proved. His father Narendrabhai Lalbhai Shah ex. 27 has stated in his deposition that he was born on 7.5.1969. Ex. 52 is a document of his birth date, which means that on the date of the accident he was of 19 years of age. According to Narendrabhai his father, he was earning Rs. 900/- per month as commission and in all he was getting around Rs. 1,200/- per month. Virenbhai Purshottamdas Shah has stated in his deposition ex. 59 that deceased Nimish was serving with him. He was getting Rs. 900/- per month. Therefore, at the most, it can be believed that he was earning at least Rs. 900/- at the time of the accident at the age of 19. Obviously, in the years to come, he would have earned much more than that amount. However, taking into consideration imponderable factors, uncertainties of life and the factors that might have affected his working capacity adversely, a datum figure of Rs. 300O/- be taken to compute the loss of dependency of the petitioners. Nimish would have married and therefore the dependency of the petitioners can be taken as only one third of the aforesaid amount. Thus, Rs. 1000/- per month could be the dependency which per year would come to Rs. 12000/-. Looking to the age of the deceased, a multiplier of 16 can be applied and, therefore, the petitioners are entitled to Rs. 1,92,000/- by way of loss of dependency and Rs. 3000/- could be added to it by way of expenditure incurred for obsequies ceremony. Thus, Rs. 1,95,000/- would be the amount to which the petitioners are entitled. It can be seen that the petitioners have claimed only Rs. 1,30,000/- by way of compensation. But it is to be borne in mind that it is not a money suit arising out of any commercial transaction wherein the plaintiff gets what he has prayed for. This is a claim petition and the entire responsibility is upon the Tribunal to compute the amount of compensation to which the petitioners are entitled. It may be more or less or the same as prayed for by the petitioner. As per my calculation, as discussed above, the petitioners are entitled to Rs. 1,95,000/- by way of compensation. Hence, the opponents being the driver and owner of the AMTS bus involved in the accident are liable to pay the same. I, therefore, decide the issue accordingly.
11. There is sufficient evidence of Narendrabhai Lalbhai Shah Ex. 27, father of deceased Nimish, and Virenbhai Purshottamdas Shah Ex. 59 that deceased Nimish was serving with him and getting around Rs. 900/- p.m. He was aged 19 years and naturally he would have earned much more if he would have survived, however, Claims Tribunal has fixed datum figure of Rs. 3000/- towards loss of dependency of the deceased being future prospectus, but Nimish being unmarried, therefore, 2/3 deducted and 1/3 is given dependency to the family. Normally, a person who died having the marriageable age, then 1/3 is to be deducted and not 2/3 (See 2008 AIR SCW 5040). Apart from that, there is no cross objection filed by the claimant, therefore, according to my opinion, looking to Rs. 1000/- as dependency loss, Rs. 12000/- comes to per year after applying multiplier of 16, which comes to Rs. 1,92,000/- and thereafter, Rs. 3000/- has been added expenditure towards funeral ceremony and Claims Tribunal has has awarded Rs. 1,95,000/-. According to my opinion, this being a reasonable, fair and just compensation awarded by the Claims Tribunal, therefore, no interference is required by this Court and accordingly First Appeal No. 4091/1996 is dismissed.
12. First Appeal No. 4092/1996 and Cross Objection No. 307/2001 is considered by this Court, where Rs. 82000/- has been awarded by the Claims Tribunal to the claimant Urvi, but learned advocate Mr. Shah raised contention in Cross Objection that Claims Tribunal has committed gross error in not considering the disability certificate which was produced on record and exhibited, and thereafter pursis was filed to consider disability of 9%. Therefore, it is the duty of the Claims Tribunal to consider future prospectus of the claimant on the basis of 9% disability which has been totally ignored by the Claims Tribunal. The Tribunal has not assessed notional income of the claimant Urvi because at that time she was studying in 12th Std. and was of 17 years age. She remained in hospital about 40 days unconscious and her left femur bone was fractured and leg was kept in traction. She was totally bed ridden during this time was being attended by the relatives and six bottles blood was given and discharged from the hospital on 23.5.1988, the medical certificate produced vide Exh. 57 and 58 and 33 to 37 where injury specified, therefore, Claims Tribunal has considered Rs. 30,000/- towards medicines and Rs. 5000/- for special food and transport,Rs. 25,000/- for pain, shock and suffering and Rs. 6000/- for the expenses incurred towards service of attendants and Rs. 6000/- towards the expenditure incurred by attendants, but Tribunal has not considered the medical certificate where disability is certified at 29.3% as a part of pertaining disability certificate by Dr. Shantilal Patel which was exhibited and subsequently by pursis which s exhibited, which has been reduced to 9%, so in absence of notional income assessed by the Claims Tribunal, the claimant is entitled to 9% benefit of disability. Therefore, considering the notional income as a non-earning member comes to Rs. 15,000/- as per 2nd Schedule,out of that, 9% comes to Rs. 1350/, which has to be multiplied by 16 and that comes to Rs. 21,600/-. This amount has been totally ignored while calculating the compensation in favour of claimant Urvi by the Claims Tribunal. Therefore, according to my opinion, the contention raised by Mr Nagarkar challenging the awarded passed in favour of claimant Urvi for Rs. 50,000/- only on the ground of contributory negligence, but that aspect has been examined by this Court in earlier appeal, therefore, appeal filed by appellant has no merits and therefore, the same is required to be dismissed, but the Cross Objection filed by the claimant is required to be allowed while considering the notional income at Rs. 15000/- of the claimant Urvi and 9% disability as agreed by the claimant which total comes to Rs. 21,600/- after applying 16 multiplier as per 2nd Schedule. Therefore, that much claim is to be enhanced in favour of Urvi claimant. The appellant - Corporation is directed to pay Rs. 21,600/- being the enhanced amount of compensation to the claimant Urvi by A/c payee cheque with 12% interest from the date of filing of the claim petition till 30.8.2008 and, thereafter, rate of interest is 7.5% up to the date of actual payment made to the claimant Urvi. Accordingly, Cross Objection No. 307/2001 filed by the Claimant Urvi is partly allowed.
13. The Appellant - Ahmedabad Muncipal Corporation through its Transport Manager of Ahmedabad Municipal Transport Service, is directed in First Appeal No. 4091/1996 to deposit remaining amount 50% before the Claims Tribunal, Ahmedabad within a period of six weeks from the date of receiving the copy of the order together with interest and costs as awarded by the Claims Tribunal. After realising the amount from the appellant and the amount which are already lying with the Claims Tribunal, it is directed to the Claims Tribunal, Ahmedabad to pay the total amount of compensation including interest as well as accruing interest on FDR and costs to the respondents - claimants by A/c payee cheque in the name of Narendrabhai Lalbhai Shah. Similarly, in case of claimant Urvi, whatever amount is deposited by the appellant - Ahmedabad Municipal Corporation, through its Transport Manager together with costs and interest and thereafter whatever interest has been accrued on that, the Claims Tribunal shall have to pay the said amount together with interest and costs with accruing interest by A/c payee cheque in the name of claimant Urvi Narendrabhai Shah in MACP No. 381/1988 and First Appeal No. 4092/1996 and Cross Objection No. 307/2001 without fail.
14. In First Appeal No. 4091/1996, this Court while admitting the matter directed the appellant to deposit 50% amount before the Claims Tribunal as per order dated 26.12.1996. The said amount comes to Rs. 1,93,991/- and out of that, Rs. 1,80,000/- is invested in FDR and remaining amount is paid to the claimant, therefore, only 50% amount is deposited. Now, the appellant shall have to deposit rest of the 50% amount with interest and costs before the Claims Tribunal as per award within a period of 6 weeks and claimants are entitled the amount of Rs. 1,80,000/- with accrued interest which has to be paid by the Claims Tribunal to the claimants by A/c payee cheque in the name of Narenrabhai Lalbhai Shah.
15. The both the Appeals, First Appeal No. 4091/1996 and First Appeal No. 4092/1996 are dismissed with no order of costs and Cross Objection No. 307/2001 is partly allowed as referred above.