C/FA/98/2018 JUDGMENT DATED: 17/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 98 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DAMJI RAMJI PARMAR (DEVIPUJAK)
Versus
KIRAN JAYPRAKASH VAGHAMSHI & 2 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/02/2023
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the Motor Vehicles Act being aggrieved and dissatisfied by the judgment and award dated 11.8.2017 passed in MACP No.535 of 2006 by Motor Accident Claims Tribunal, (Aux), Bhuj-Kachchh. The Page 1 of 6 Downloaded on : Tue Feb 21 20:45:32 IST 2023 C/FA/98/2018 JUDGMENT DATED: 17/02/2023 claimant has raised the ground that negligence which has been attributed to him is not consistent with the evidence on record and has also raised the ground that the Tribunal concerned ought to have granted prospective rise as he is a skilled labourer.
2. Mr.Hemal Shah, learned advocate for the appellant submitted that when the appellant-claimant could not substantiate the income by leading any cogent evidence on record, however, as he was a skilled labourer, reasonable amount should have been considered while granting prospective rise in income. Mr.Shah further stated that the claimant was on Luna Moped bearing registration No.GJ-12 B- 2666, while the vehicle which had come from behind was motor cycle bearing No.GJ-12 AH-2548 and it had dashed with Luna Moped. Thus, it has been submitted by Mr.Shah that it was an absolute negligence of the motor cyclist, who had dashed with claimant from rear side.
3. Countering the same, learned advocate, Mr.Mazmudar submitted that in pursuance of FIR produced and the evidence on record, learned Tribunal has rightly observed that every driver of the vehicle has to take care of other vehicles including cyclists and pedestrians and the control on the vehicle should be maintained so as not to let any friction or collision. Mr.Mazmudar submitted that, at the relevant time, the applicant was going on a Luna Moped and had he been vigilant, the accident could have been avoided.
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4. Charge sheet has been filed against opponent no.1. The panchnama depicts that motor cyclist had dashed Luna moped from back side. It is required to be noted that all the drivers of the vehicles, small or big, have to maintain a specific speed and distance to avoid any friction and for smooth management of traffic on the road. Learned Tribunal having perused the panchnama on record had observed that the driver of the motor cycle had come from behind and dashed with Luna moped. Both the vehicles have been damaged. Learned Tribunal further observed that opponent no.1, driver of motor cycle, has not come forward before the Tribunal to explain the accident and, therefore, adverse inference was drawn against opponent no.1. Not only that it is observed that the motor cyclist had dashed with Luna from behind. Thus, negligence of the motor cyclist would be comparatively higher than that of Luna rider. Learned Tribunal has observed that the motor cycle has dashed with Luna from behind and considered 20% negligence of the applicant as driver of Luna Moped, which is on higher side considering the facts of the case. Thus, the facts of the case would suggest that there would be contributory negligence of the appellant would not be graver than that of motor cyclist. Comparing the facts on record and the Make of the vehicle, contributory negligence of the appellant is required to be decreased to 10% from 20%. Hence, the observation made by the Tribunal for issue No.1 is modified.
5. The monthly income of the appellant is assessed as Rs.3000/- by the Tribunal, which is just and reasonable. Though the claimant has stated that he is doing labour work, Page 3 of 6 Downloaded on : Tue Feb 21 20:45:32 IST 2023 C/FA/98/2018 JUDGMENT DATED: 17/02/2023 he has not laid any evidence to show the nature of his work. However, following the judgment of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, since the claimant is self-employed, considering his age to be 30 years, 40% rise in the prospective income is required to be considered in the present case. Hence, the income of the claimant would come to Rs.3,000/- + Rs.1200 (40% increase) = Rs.4,200/- per month. The disability aspect is not challenged in this appeal. Since both learned advocates on record before the Tribunal had accepted 20% disability for the body as a whole, it has been considered by the Tribunal. Taking these facts into consideration, the multiplier of 17 is rightly applied by the Tribunal. Thus, the compensation under the head of "future loss of income" would come to Rs.840/- (Rs.4200 X 20%) X 12 X 17 = Rs.1,71,360/- .
6. The amount under the head of "Special diet, attendant and transportation" is slightly on higher side. Keeping in mind, the physical disability consented by both the sides, the amount of Rs.12,000/- granted by the Tribunal under the head of "Special diet, attendance and transportation" is reduced to Rs.10,000/-. The applicant would be, thus, entitled to the following amount:-
Future loss of income Rs.1,71,360/-
Medical expenses Rs.23,396/-
Special diet, attendance
and transportation Rs.10,000/-
Pain, shock and suffering Rs.15,000/-
Actual loss of income Rs.12,000/-
Total Rs.2,31,756/-
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C/FA/98/2018 JUDGMENT DATED: 17/02/2023
7. The contributory negligence is reduced to 10%. Hence, 10% amount is deducted from the total compensation of Rs.2,31,756/-. Accordingly, the claimant would be entitled to an amount of Rs.2,08,580/- (Rs.2,31,756/- - Rs.23,176/-) .
8. The Tribunal has awarded Rs.1,47,837/- with interest at the rate of 10% p.a., therefore, the enhanced amount would be Rs.60,743/- (Rs.2,08,580 - Rs.1,47,837/-), which the insurance company is directed to deposit within a period of six weeks from the date of receipt of writ of this Court. It is further directed that such enhanced amount be paid with interest at the rate of 7.5% p.a.
9. Out of the total amount of compensation, 70% of the amount be invested in a Fixed Deposit with any nationalized Bank, initially, for a period of two years, (which shall be renewed from time to time) without any reference to this Court, or till the final disposal of the Appeal, if filed, whichever is earlier. Interest accruing on such Fixed Deposit shall be accumulated. Insofar as the remaining 30% amount is concerned, the same shall be disbursed in favour of the original claimant(s), after proper verification. The original Fixed Deposit Receipt shall be kept in the custody of the Nazir of the Court/Tribunal. No any advance, loan or encashment against the Fixed Deposit(s) be permitted by anyone.
10. Accordingly, this First Appeal is partly allowed. The impugned judgment and award dated 11.8.2017 passed in MACP No.535 of 2006 by Motor Accident Claims Tribunal, Page 5 of 6 Downloaded on : Tue Feb 21 20:45:32 IST 2023 C/FA/98/2018 JUDGMENT DATED: 17/02/2023 (Aux), Bhuj-Kachchh is modified accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.
Sd/-
(GITA GOPI,J) R.S. MALEK Page 6 of 6 Downloaded on : Tue Feb 21 20:45:32 IST 2023