Gujarat High Court
Ahmedabad Municipal Corporation vs Vimlesh Pramodchandra Doshi & 2 on 10 April, 2014
C/FA/404/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.404 of 2014
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AHMEDABAD MUNICIPAL CORPORATION....Appellant(s)
Versus
VIMLESH PRAMODCHANDRA DOSHI & 2....Defendant(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No.1
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 10/04/2014
ORAL ORDER
1. By this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), the appellant - Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation") has challenged the judgment and award dated 10th December, 2013 passed by the Motor Accident Claims Tribunal (Auxiliary), City Civil Court, Court No.19, Ahmedabad (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.964/2001.
2. The facts giving rise to the present appeal are that the respondents herein filed claim petition before the Claims Tribunal seeking compensation in respect of the death of one Pramodchandra Shivlal Doshi. The case of the claimants was that on 29th August, 2001 at about 6:00 p.m., their father Pramodchandra Shivlal Doshi was returning from Mithakhali Six Roads towards Ashram Road for the purpose of going to his shop which is near the under-bridge at Gandhi road where the C/FA/404/2014 ORDER deceased was serving. The deceased who was going on foot had crossed the Mithakhali bridge, at which point of time an AMTS bus of Route No.500 which was driven by the driver in excessive speed and in a rash and negligent manner dashed against the deceased from behind and consequently the deceased fell down and died on the spot. A witness who was present there at the time when the accident took place, informed one Kanubhai Narsinhbhai Patel about the manner in which the incident had taken place, pursuant to which, the said Kanubhai lodged a first information report. The claimants, accordingly, filed a claim petition to recover compensation of Rs.10 lakhs with interest and costs from the appellant herein.
3. The Tribunal, after appreciating the evidence on record, found that the accident had occurred on account of the rash and negligent driving on the part of the driver of the AMTS bus and awarded compensation of Rs.4,55,600/- with interest at the rate of 7.5% per annum in favour of the respondents. Being aggrieved, the Corporation is in appeal.
4. Mr. Hemant Munshaw, learned advocate for the appellant, vehemently assailed the impugned award by submitting that the Tribunal has miserably failed to appreciate the evidence on record in proper perspective, inasmuch as, no evidence had been led by the claimants to establish that, in fact, the deceased had died on account of an accident involving an AMTS bus. It was submitted that the person who had lodged the first information report was not an eye-witness and hence, the first information report had been lodged on the basis of hearsay and therefore, the same could not have been relied upon by the Tribunal. It was submitted that the C/FA/404/2014 ORDER claimants are not eye-witnesses and hence, there is no evidence worth the name to show that an AMTS bus was involved in the vehicular accident in question.
4.1 Next, it was submitted that even on the question of quantum, the Tribunal has failed to consider that the claimants had not led any evidence to establish that the deceased was earning Rs.3,000/- per month. Under the circumstances, the Tribunal was not justified in assessing the income of the deceased at Rs.3,000/- per month. It was submitted that the multiplier of 13 applied by the Tribunal is also on the higher side and the interest at 7.5% is also excessive. It was, accordingly, urged that the matter requires consideration and the appeal deserves to be admitted.
5. This court has heard the submissions advanced by the learned advocate for the appellant and has perused the record and proceedings of the case. A perusal of the record reveals that while the claimants are not witnesses to the accident, a first information report came to be lodged by one Kanubhai Narsinhbhai Patel on 29th August, 2001 itself, immediately after the occurrence of the accident. In the said first information report, it has inter alia been stated that while the first informant was returning from his office, at about 6:20 p.m., when he reached Mithakali Underpass, he saw that four to five persons were standing there, hence, he too stopped there and saw a person lying near the footpath and he was bleeding heavily from his nose, ears, mouth, etc. One of the members of the public who was present there informed him (Kanubhai) that AMTS bus route No.500 whose number he did not know had passed from there at about 6:17 p.m. whileC/FA/404/2014 ORDER going towards Ashram Road and on account of being hit by the bus, the pedestrian had died. The said person told him that he was coming behind the bus on a scooter and hence, had witnessed the incident and since he had some urgent work to attend, he asked him (Kanubhai) to lodge a complaint with the police at Delite Circle. Accordingly, the said Kanubhai lodged the first information report in the above terms, alleging that the deceased had been hit by a bus which was driven by the driver with excessive speed and in a rash and negligent manner.
6. The record of the case reveals that immediately after the lodging of the first information report, the police had drawn a panchnama of the scene of accident at 21:15 hours on 29th August, 2001 and an inquest panchnama also came to be drawn on the same day at 20:00 hours. Thus, the first information report was lodged immediately after the occurrence of the accident and the manner in which the accident had taken place was described therein by a person who, though was not an eye-witness, was informed by a person who had witnessed the incident.
7. The Tribunal in the impugned award has placed reliance upon the first information report, the above referred panchnamas and the post-mortem report for the purpose of coming to the conclusion that the accident had taken place on account of an AMTS bus dashing against the deceased. As regards the contention raised on behalf of the appellant that there was no evidence to establish that the deceased had died on account of an accident involving an AMTS bus as no eye- witness had been examined in that regard, it is by now well-
C/FA/404/2014 ORDER settled as held by the Supreme Court in the case of Bimla Devi & Ors. v. Himachal Road Transport Corpn. & Ors., AIR 2009 SC 2819, that while dealing with a claim petition in terms of section 166 of the Motor Vehicles Act, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of the driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in the claim petition. The court held that the Tribunal in the said case had rightly taken a holistic view of the matter. The court was of the view that it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants have merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied.
8. In Kusum Lata and Others v. Satbir and Others, (2011) 3 SCC 646, wherein the Tribunal as well as the High Court has refused to accept the presence of one Dheeraj Kumar whose name was not disclosed in the first information report by the brother of the victim, the Supreme Court was of the view that there was no reason for the Tribunal and the High Court to ignore the otherwise reliable evidence of the said C/FA/404/2014 ORDER Dheeraj Kumar. The court was of the view that merely because the name of Dheeraj Kumar was not mentioned in the first information report, it was not a proper assessment of fact that it was not possible for Dheeraj Kumar to see the accident. The court further observed that it is well-known that in a case relating to motor accident claims, the claimants are not required to prove the case as is required to be done in a criminal trial and that the court must keep this distinction in mind.
9. Examining the facts of the present case in the light of the above decision, admittedly the accident took place in a public place where several members of the public were present. From the first information report, it is apparent that the same has been lodged by Kanubhai Narsinhbhai Patel on the basis of information given to him by an eye-witness who was going on a scooter behind the bus at the time when the accident took place. It is on the basis of the version given by the eye-witness to him, that the said Kanubhai lodged the first information report. Kanubhai is an independent person who had no reason to concoct any evidence. The first information report has been lodged immediately after the accident and immediately thereafter the panchnama of the scene of accident as well as inquest panchnama have been prepared recording the version given in the first information report. Therefore, it is not as if the facts stated in the first information report have been concocted for the purpose of enabling the claimants to obtain compensation under the provisions of the Act. In the first information report, it is clearly stated that an AMTS bus of Route 500 had dashed with the deceased from the back. It is not the case of the appellant that the bus of C/FA/404/2014 ORDER Route 500 did not pass through the place where the accident took place at the relevant time when the accident occurred. No evidence has been led on behalf of the appellant to rebut the evidence which has come on record. Under the circumstances, having regard to the contents of the first information report and the panchnama of the scene of accident, etc., it cannot be said that the claimants have failed to establish on a pre- ponderance of probability that the accident had taken place on account of an AMTS bus of Route 500 dashing against the deceased. The contention that the AMTS bus was not involved in the vehicular accident, therefore, does not merit acceptance.
10. Insofar as the quantum of compensation is concerned, on behalf of the claimants, documentary evidence had been produced in the nature of certificates issued by one Vishal Traders to the effect that the deceased was working with the said firm as an Accountant and his salary was Rs.3,000/-; a certificate issued by Essam Impex Corporation to the effect that the deceased was maintaining their accounts and was being paid Rs.2,200/- per month with one salary as bonus, as well as a certificate issued by one P.R. Corporation to the effect that the deceased was working in their firm and was earning Rs.1,800/- per month. Thus, by virtue of these certificates, the claimants had sought to contend that the deceased was earning Rs.7,000/- per month. The Tribunal, however, assessed the income of the deceased conservatively at Rs.3,000/- per month only. Under the circumstances, it cannot be said that the income of the deceased as assessed by the Tribunal, is in any manner excessive as is sought to be contended on behalf of the appellant. The interest at the rate C/FA/404/2014 ORDER of 7.5% per annum also by no stretch of imagination can be said to be on the higher side. Under the circumstances, none of the grounds put forth on behalf of the appellant merit acceptance.
11. For the foregoing reasons, the appeal being thoroughly devoid of merit is accordingly summarily dismissed.
12. The Registry shall forthwith send back the record and proceedings of the case.
( Harsha Devani, J. ) hki
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