NEUTRAL CITATION
C/FA/217/2018 JUDGMENT DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 217 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? Yes
4 Whether this case involves a substantial question of law as to the Yes
interpretation of the Constitution of India or any order made
thereunder ?
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KOMALBEN NARESHBHAI PATEL & 2 other(s)
Versus
NARESH NAGINBHAI VASAVA & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/08/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellants - original claimants against the respondents - original opponents under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) against the judgment and award passed by the learned Motor Accident Claims Tribunal Page 1 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023 NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined Vadodara in MACP No. 360 of 2011 on 25.09.2017. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1. That on 10.12.2010 at about 04.30 hours, Nareshbhai Vithalbhai was driving his Motorcycle bearing registration No.GJ-6-BH-2342 on the correct side of the road in moderate speed and when he reached near village Ucchad, the opponent No.1 came driving truck bearing registration No.GQC-5345, which belonged to the opponent No. 2 and was insured with the opponent No. 3, in a rash and negligent manner and with excessive speed and dashed with the motorcycle, as a result of which, Nareshbhai Vithalbhai sustained grievous injuries and succumbed to the injuries during his treatment. The offence being I-C.R.No. 53 of 2010 was registered with Vedach Police Station.
2.2 The claimants, who are the widow and minor daughter and mother, have filed the claim petition under Section 166 of the Act mainly stating that the deceased was hale and hearty and due to his death, they have lost their sole earning member.
Page 2 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined The deceased was doing agricultural work and was earning Rs.10,000/- per month. That they have also lost the love and affection of the deceased and hence, the claimants have claimed an amount of Rs.10,00,000/- as compensation from the opponents jointly and severally under all the available heads.
3. The notices were duly served to the opponents and the opponent Nos.1 and 2 did not appear, but the opponent No. 3
- Insurance Company appeared and filed the written statement at Exh. 16 denying the averments made by the claimants and contended that the opponent No. 1 was driving the truck slowly on the correct side of the road and the deceased drove the vehicle in a rash and negligent manner and there was head on collision of both the vehicles. That the deceased was contributory negligent for the occurrence of the accident and the insurance company urged the learned Tribunal to reject the claim petition.
4. The learned Tribunal, after considering the oral as well as documentary evidence submitted by all the parties on record, held the opponent No.1 to be 75% negligent and the deceased to be 25% negligent for the occurrence of the accident and awarded an amount of Rs.7,91,000/- as total compensation and after deducting 25% from the said amount i.e. Page 3 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023 NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined 1,97,750/-, awarded an amount of Rs.5,93,250/- to the claimants holding all the opponents are jointly and severally liable to pay the amount of Rs.5,93,250/- to the claimants with interest at the rate of 9% from the date of filing the claim petition till realization.
5. Being aggrieved and dissatisfied with the judgment and award, the claimants have preferred the present appeal mainly stating that the learned Tribunal has committed an error in considering the deceased to be 25% negligent for the occurrence of the accident when the opponent No. 1 - truck driver must be held 100% negligent for the occurrence of the accident. Moreover, the claimants have claimed that the deceased was earning Rs.10,000/- per month. The learned Tribunal has awarded only an amount of Rs.3,000/- per month and even if the minimum wages is considered, the claimants ought to have been granted much more amount as compensation. The learned Tribunal has also committed an error in awarding the amount towards the conventional heads such as consortium, loss of estate and funeral expenses and therefore, the judgment and award passed by the learned Tribunal may be modified.
6. Heard learned advocate Mr. Hiren Modi for the appellants -
original claimants and learned advocate Ms. Karuna Rahevar Page 4 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023 NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined for the respondent No. 3 - Insurance Company. Though served, the respondent Nos. 1 and 2 did not appear before this Court.
7. On perusal of the record and proceedings of the MACP No. 360 of 2011, it appears that the claimant No.1 has filed her affidavit cum deposition at Exh. 23 and she has been cross- examined by the learned advocate for the opponent and she has admitted that she is not an eye witness of the accident. The claimants have produced the copy of the complaint at Exh.29, copy of panchanama at Exh. 30, copy of inquest panchnama at Exh.32, copy of insurance policy at Exh.35, copy of abstract of 7/12 at Exhs. 27 and 28. On perusal of the documents, it appears that the complaint has been filed by one Vanrajsinh Khumansinh Raj and in the complaint, he has stated that on 11.12.2010 at around 4.30 hours, he was working in his field situated on Uchchhal - Jambusar road and at that time, the truck was going from Jambusar to Vadodara and the said truck dashed with two motorcycles and turned turtle on the left side of the road. The truck number was GQC 5345 and the motorcycle numbers were GJ-6-BH-2342 and GJ-6-BN-3176 and the persons, who were on both the motorcycles, had sustained grievous injuries.
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8. On perusal of the complaint at Exh.25, it is clear that the truck driver was driving the truck in a rash and negligent manner and the truck dashed with two motorcycles. The learned Tribunal has considered the deceased to be 25% negligent for the occurrence of the accident and it also appears that the truck driver was held to be 75% for the occurrence of the accident and looking to the panchnama at Exh. 30, it appears that the road is 35ft. wide road and the truck turned turtle on the left side of the road, whereas, motorcycle bearing number GJ-6-BH-2342 was completely burnt and has suffered a total loss. Considering the complaint and the panchanama, it would be appropriate to hold the truck driver 85% negligent for the occurrence of the accident and the deceased 15% negligent for the occurrence of the accident and accordingly, the driver of the truck is held to be 85% for the occurrence of the accident and the deceased is held to be 15% for the occurrence of the accident.
9. As far as the question with regard agricultural work is concerned, the deceased was doing agricultural activities and was earning Rs.10,000/-per month and considering the nature of work, the learned Tribunal has assessed the monthly income Rs.3,500/- per month. The accident has occurred on 11.12.2010 and as far as the age is concerned, Page 6 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023 NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined the deceased was 30 years old at the time of accident and considering the age and nature of the work done by the deceased, if the monthly income of the deceased is held to be Rs.4400/- per month, it would be just and proper.
10. The learned Tribunal has considered the future prospective income to be 50% but in view of the settled principle of law in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211, the claimants are entitled for 40% prospective income since the deceased was 30 years old at the time of accident and the claimants are entitled to the multiplier of 17 instead of the multiplier of 18 and therefore, in view of the above, the claimants are entitled for the following amounts:
No. Details Amount (Rs.)
1 Monthly income 4,400
2 Monthly income + future prospects 6160
(4,400/-X 40%)
3 Income per month 6,160
4 Loss of dependency (yearly) 49,284
(1/3 deduction for personal expenses i.e. 6193 -1/3 = 4,107 X 12 = 49,284) 5 Total loss of dependency 8,37,828 (49,284 X 17 multiplier) 6 Conventional head, Loss of Estate and 1,50,000 Funeral expenses Total (Sr.No. 1 to 6) 9,87,828 Less 15% Contributory Negligence 8,39,654 (9,87,828 - 1,48,174=8,39,654) Page 7 of 8 Downloaded on : Sun Sep 17 01:50:45 IST 2023 NEUTRAL CITATION C/FA/217/2018 JUDGMENT DATED: 19/08/2023 undefined
11. For the foregoing reasons, the appeal is allowed and the judgment and award passed by the learned Motor Accident Claims Tribunal Vadodara in MACP No. 360 of 2011 on 25.09.2017 is hereby modified and as the learned Tribunal has awarded an amount of Rs.5,93,250/- to the claimants and this Court has enhanced the amount of compensation, the claimants are entitled to receive an enhanced amount of compensation of Rs.2,46,404/- with interest at the rate of 6% per annum from the date of filing of the claim petition till realization. The insurance company is directed to deposit the additional amount of compensation with 6% interest as early as possible within an outer limit of eight weeks from the date of receipt of certified copy of this order. After depositing of the additional amount of compensation, the same shall be disbursed in favour of the claimants through NEFT / RTGS, after proper verification.
12. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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