NEUTRAL CITATION
C/FA/844/2010 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 844 of 2010
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CHAUDHARY PURIBEN RAMANBHAI & 2 other(s)
Versus
PATEL ANILKUMAR ISHWARLAL & 2 other(s)
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Appearance:
MR DHAVAL N VAKIL(3556) for the Appellant(s) No. 1,2,3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 28/08/2023
ORAL ORDER
1. Being dissatisfied with the quantum of compensation and on the issue of negligence, the appellants being legal heirs and representatives of deceased Ramanbhai Chaudhari, who died in a road accident, have filed the present appeal seeking enhancement of compensation and review of issue of negligence.
2. The alleged incident took place on 06.04.2000. Deceased Pravinbhai was hit by the Jeep in question. As a result of which, decease Pravinbhai was died. On the unfortunate day of accident, the deceased and his companion were passing on Mahadevpura Gavada Road, Dist.: Mehsana and due to nature of call, the vehicle upon which they were riding, was parked beside the road and Becharbhai had gone to secluded place, whereas, deceased Pravinbhai was went for urination and thereafter, he was standing Page 1 of 7 Downloaded on : Sun Sep 17 02:43:44 IST 2023 NEUTRAL CITATION C/FA/844/2010 ORDER DATED: 28/08/2023 undefined beside the scooter. At that time, the Jeep in question came from the opposite direction being driven by its driver in a careless manner and hit the deceased. The widow and two sons, being legal heirs of deceased Pravinbhai filed Claim Petition being MACP No. 715 of 2000 before the MAC Tribunal (Aux) at Mehsana against the driver, owner and insurance company of the jeep, claiming compensation of Rs.14,00,000/-. The Tribunal after considering the oral and documentary evidence, came to the conclusion that, the deceased himself contributed to the occurrence of the alleged accident and fixed 30% his contributory negligence. So far as quantum is concerned, the Tribunal awarded, Rs.6,06,000/- to the claimants and after deducting 30% from the amount, the Award to the tune of Rs.4,24,000/- with interest at the rate of 7.5% is passed vide its award and judgment dated 23.07.2009.
3. The claimants - appellants have preferred this appeal on the grounds that, the Tribunal ought not to have fixed contributory negligence to the deceased and findings to this effect are contrary to the settled law on the issue of strict liability. The enhancement of the compensation sought on the ground that, the various income of the deceased having not taken into consideration while computing the amount of dependency loss.
4. This Court has heard learned counsel Mr. Dhaval Vakil and Mr. Sunil Parikh, learned advocate appearing for the National Insurance Company.
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5. Mr. Vakil, learned counsel assailing the impugned judgment and award, has submitted that, the established income of the deceased having not been taken into account by the Tribunal while computing the monthly income and therefore, on this count, the claimants are entitled for enhancement in the compensation awarded by the Tribunal. That the Tribunal erred in applying multiplier of 12 as at relevant time the age of the deceased was 45 years old and the multiplier 14 ought to have considered by the Tribunal. That the Tribunal failed to appreciate the settled principles of law on the aspect of negligence, as the deceased was standing beside the scooter and same was parked at the rough road of the main road and in that circumstances, it was the duty of the driver, owner and insurance company to explain under which circumstances the alleged accident was occurred. That, the Tribunal without considering the said legal position of law, arbitrarily assessed 30% contributory negligence on the part of the deceased, which conclusion are contrary to the settled principle of law.
6. In view of the aforesaid contentions, Mr. Vakil, learned counsel submitted that the award and judgment is required to be modified and findings on the issue of negligence cannot be sustained.
7. On the other hand, learned counsel Mr. Sunil Parikh, countering the submissions, submitted that, the Tribunal has rightly decided the issue of negligence and while assessing the contributory negligence, the Tribunal has relied on the facts mentioned in the panchnama and site map. On the aspect of quantum, Mr. Parikh, Page 3 of 7 Downloaded on : Sun Sep 17 02:43:44 IST 2023 NEUTRAL CITATION C/FA/844/2010 ORDER DATED: 28/08/2023 undefined learned counsel submitted that the tribunal, after considering various source of income, assessed monthly income of Rs.4000/- and has not committed any error while computing the amount of dependency loss.
8. Mr. Parikh, learned counsel prays that, the award and judgment having been passed by the Tribunal after considering the evidence on record and therefore, no grounds is made out to interfere with the award impugned.
9. Having heard the learned counsel for the respective parties and on perusal of the impugned award and judgment, the issue falls for determination of this Appeal are :
(i) Whether the findings recorded by the Tribunal that the deceased himself contributed to the occurrence of the incident is sustainable?
(ii) Whether appellants have made out a case for enhancement in the amount of compensation?
10. Before adverting to the issues, let us refer the evidence led before the Tribunal. Before the Tribunal, on the issue of negligence, the appellants have examined one Mr. Hasmukh Popatbhai at Exh. 34, who claimed that, he had seen the incident at the distance of 25 feet from his farm. The complainant Becharbhai Veljibhai examined at Exh. 41, though he was accompanied to the deceased, but at relevant time, he went in the nearby farm for his nature of call. The panchnama of place of incident placed on record at Exh. 22, which Page 4 of 7 Downloaded on : Sun Sep 17 02:43:44 IST 2023 NEUTRAL CITATION C/FA/844/2010 ORDER DATED: 28/08/2023 undefined demonstrate the topography of the place of incident and as per the panchnama, width of the road was 10 ft and at the place of incident, there was a sharp curve on the road. Admittedly, the driver did not step into witness box, nor he was examined by the owner or insurance company of the vehicle to explain under what circumstances the alleged incident has occurred.
11. In the aforesaid facts and evidence led before the Tribunal, this Court is of considered view that, the observations so made and findings recorded by the Tribunal in relation to the contributory negligence, assessed on the part of the deceased are apparently unsustainable and contrary to the settled principle of law. It would be relevant to discuss the principles for deciding contributory negligence and/or negligence. The term negligence means failure to exercise required degree of care and caution expected of a prudent driver and same can be proved either by direct evidence or by drawing inference from the proved facts. In the schedule of The Motor Vehicle Act, 1988, provides that the driver of every vehicle should slow down the vehicle at a turning of the road, so as to avoid the accident. A reference can be made to the decision of the Division Bench of this Court rendered in New India Insurance Company Ltd. Vs. Takhuben Raghabhai and others, reported in 2008 ACJ 989, after referring the various pronouncements of the Apex Court on the issue of negligence and considering the principle of strict liability (Rylands Vs. Fletcher), it was held that, in case of pedestrian or bystanders, the negligence of the defendant presumed but it is open for them to prove negligence of Page 5 of 7 Downloaded on : Sun Sep 17 02:43:44 IST 2023 NEUTRAL CITATION C/FA/844/2010 ORDER DATED: 28/08/2023 undefined the injured or deceased.
12. Reverting back to the facts of present case and applying the aforesaid principles of law, the deceased was standing beside the scooter when accident was occurred and the width of the road 10 ft and there was a sharp curve. The driver of the jeep did not step into witness box nor he was examined by the Insurance Company to prove and establish that the deceased was negligence towards his life and had violated the rules and regulations of the road accident.
13. For the foregoing reasons, this Court is of considered view that the findings recorded by the learned Tribunal assessing the contributory negligence of the deceased are unsustainable and deserves to be set aside. Thus, therefore, I hold that, the alleged incident was result of negligent act on the part of the Jeep driver.
14. On the issue of quantum, this court is of considered view that, the Tribunal had not committed any error while fixing monthly income of Rs.4000/- of the deceased and considering the age of deceased mentioned in the PM report, the multiplier of 12 has been properly applied. However, in view of the decision of the Constitutional Bench (National Insurance Company Vs. Pranay Shetty, (2017 ACJ 2700 SC) and the decision of the Magma General Insurance Vs. Nanuram (2018 ACT 2782), this Court deem it fit necessary, to enhance the amount of compensation on the following heads:
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1 Loss of Estate 15,000=00
2. Consortium 1,20,000=00 (40,000X3) at
relevant time 2 sons were minor
and during the pendency of the
claim petition, they had attained
the majority.
3. Funeral Expenses 15,000=00
4. The amount deducted towards 1,81,000=00 contributory negligence Total 3,31,000=00
15.In the result, the appeal is partly allowed. The appellants are entitled for the enhanced amount of Rs.3,01,000/- (Rs.3,31,000 - Rs.30,000 awarded by the Tribunal) and accordingly, the respondents are liable jointly and severally to pay the said amount. The enhanced amount shall carried interest at the rate of 6%. The Insurance Company shall deposit the enhanced amount within 3 months from today. The directions of the Tribunal as to the manner of disbursement shall also apply to disbursement of enhanced compensation without investing the amount in the FDRs. The decree be drawn accordingly.
(ILESH J. VORA,J) P.S. JOSHI/01/09 Page 7 of 7 Downloaded on : Sun Sep 17 02:43:44 IST 2023