NEUTRAL CITATION
C/FA/3695/2008 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3695 of 2008
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PRADEEPKUMAR VASANTLAL SHAH SINCE DECD.HEIRS AND L.RS.
Versus
NATVARLAL BABULAL MODI & 1 other(s)
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Appearance:
MR AS ASTHAVADI(3698) for the Appellant(s) No. 1,1.1,1.2,1.3
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 25/08/2023
ORAL ORDER
1. Being dissatisfied with the quantum of compensation and contributory negligence held by the 4th Motor Accident Claim Tribunal, Ahmedabad, the injured claimant has filed present appeal under Section 173 of the Motor Vehicle Act, 1988, seeking enhancement of compensation.
2. Facts and circumstances giving rise to appeal are that the appellant being auto rickshaw driver and owner of the vehicle met with an accident, allegedly caused by S.T. Bus, as a result of which, he sustained grievous injuries resulted into permanent partial disablement. The claim was contested by the S.T. Corporation and driver of the bus stepped into witness box and had denied negligence on his part. The claim Tribunal vide its award and judgment Page 1 of 4 Downloaded on : Sun Sep 17 02:31:47 IST 2023 NEUTRAL CITATION C/FA/3695/2008 ORDER DATED: 25/08/2023 undefined dated 29.02.2004, partly allowed the claim petition and awarded Rs.6,000/-, and upto 25% the contributory negligence was held against the appellant herein.
3. Mr.A.S. Asthavadi, learned advocate for the appellant has submitted that the Tribunal has not properly appreciated the evidence of the appellant and without application of mind, the contributory negligence upto 25% was being fixed against the appellant. He has further submitted that despite the sufficient medical evidence on record, by ignoring the same, the Tribunal awarded meager amount upto Rs.6,000/- which is against the settled principle of just compensation.
4. On the other hand, learned counsel Mr.Meena appearing for and on behalf of S.T. Corporation, submitted that the Tribunal was justified in passing the amount of award and fixing the liability of the appellant, which is based on the evidence on record and the same is not required to be interfered with.
5. Having heard learned counsels for the respective parties and on perusal of the impugned order, the issue arise for determination is whether the Tribunal is justified in passing the judgment and award fixing contributory Page 2 of 4 Downloaded on : Sun Sep 17 02:31:47 IST 2023 NEUTRAL CITATION C/FA/3695/2008 ORDER DATED: 25/08/2023 undefined negligence upto 25% on the appellant herein.
6. It is the contention that the Tribunal ought not to have fixed contributory negligence upto 25% to the appellant injured. Upon careful reading of the impugned award and judgment, it appears that the appellant was examined at Exh.31 before the Tribunal, whereas the driver of the bus was examined at Exh.26. The learned Tribunal after analyzing of the oral as well as documentary evidence, in Para-9 of the award held that after seeing the S.T. Bus, the appellant did not stop his rickshaw which reflects his carelessness in driving the vehicle. The Tribunal, after considering the size of the opposite vehicle and the site panchnama, held liable both the drivers of the vehicle in proportionate 25-75. This Court is of the considered view that the findings on the issue of negligence does not require interference as the Tribunal has rightly appreciated the oral as well as documentary evidence while fixing the liability and findings cannot be termed as perverse or arbitrary.
7. The second issue raised is that the amount of Rs.6,000/-
are not just and proper. On the issue, this Court has considered the medical certificate issued by V.S. Hospital Page 3 of 4 Downloaded on : Sun Sep 17 02:31:47 IST 2023 NEUTRAL CITATION C/FA/3695/2008 ORDER DATED: 25/08/2023 undefined and disability certificate issued by Dr.Aditya Upadhyay. The injury certificate at Exh.23 shows that the appellant did not have suffered any fracture injury and there is a simple injury found by the treating doctor. Despite of these facts, without any fracture injury sustained by the injured, the disability certificate was being issued by Dr.Upadhyay. In these circumstances, the Tribunal has rightly awarded Rs.6,000/- towards the total amount of compensation and has not committed any error either on facts or on settled principle of awarding just compensation.
8. For the aforestated reasons, this Court is of the considered view that the Tribunal was justified in fixing negligence on the part of the appellant and awarding the amount of Rs.6,000/- as it is a case of simple injury. Thus, no case is made out to interfere with the award impugned.
9. Resultently, the appeal fails and is hereby dismissed.
Decree be drawn accordingly.
(ILESH J. VORA,J) Rakesh Page 4 of 4 Downloaded on : Sun Sep 17 02:31:47 IST 2023