Legal Heirs Of Decd. Dineshbhai ... vs Vinodbhai Nathabhai Parmar

                                                                                   NEUTRAL CITATION




      C/FA/4159/2008                               ORDER DATED: 29/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4159 of 2008

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     LEGAL HEIRS OF DECD. DINESHBHAI RANCHHODBHAISOJITRA
                             Versus
            VINODBHAI NATHABHAI PARMAR & 2 other(s)
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Appearance:
MS PAURAMI B. SHETH(841) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR BHAVIN S RAIYANI(3855) for the Defendant(s) No. 2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 29/09/2023

                                ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicle Act, by the original claimants, who are legal heirs and representatives of deceased Dineshbhai, who died in a road accident, against the judgment and award dated 20.09.2005 in MACP No. 388 of 2001, passed by the Claim Tribunal at Rajkot.

2. On 05.02.2001, the deceased Dineshbhai Sojitra, met with an accident when he being a driver of the Jeep, passing on Rajkot-Ahmedabad Highway, dashed with the opposite Truck, as a result, the deceased succumbed to his injuries. The appellants being widow, minor children and parents had filed a claim petition, claiming compensation against the Driver, Page 1 of 6 Downloaded on : Fri Sep 29 20:46:02 IST 2023 NEUTRAL CITATION C/FA/4159/2008 ORDER DATED: 29/09/2023 undefined owner and Insurance Company of the opposite truck. The claim Tribunal at Rajkot vide its common judgment and award dated 20.09.2005, assessing contributory negligence of the deceased to the extent of 30%, awarded an amount of compensation of Rs.12,07,571/- with interest.

3. The appellants aggrieved with the said judgment and award are before this Court.

4. This Court has heard learned counsel Ms. Paurami Sheth and Mr. Palak Thakkar, learned counsel for the respective parties.

5. Ms. Paurami Sheth, learned counsel appearing for the appellants - claimants, on the issue of assessment of contributory negligence on the part of the deceased to the extent of 30% has submitted that, the Tribunal has erred in not believing the depositions of eye- witnesses, who had in turn stated that the deceased was going on the correct side and it was the truck, which was driven in a negligent manner, dashed with the Jeep. That, the Tribunal has erred in not believing the say of the eye-witnesses on the ground that their evidence were not supported by the FIR and other case papers. That, the substantial evidence is the evidence recorded before the Court and therefore, the Page 2 of 6 Downloaded on : Fri Sep 29 20:46:02 IST 2023 NEUTRAL CITATION C/FA/4159/2008 ORDER DATED: 29/09/2023 undefined learned Tribunal ought not to have given weightage to the FIR and police papers and therefore, while assessing the contributory negligence, the Tribunal has committed an error of law and ignored the Rules of procedure.

6. Ms. Sheth, learned counsel on the aspect of compensation has submitted that the judgment and award are unjust, improper and deserves to be modified.

7. On the other hand, learned counsel Mr. Palak Thakkar, appearing for and on behalf of the Insurance Company has submitted that, on the issue of negligence, the learned Tribunal has assigned cogent reasons for arriving its conclusion that, the deceased had contributed to the extent of 30% in occurrence of the alleged accident and therefore, the findings recorded on the issue of negligence, does not require any interference by this Court.

8. So far as quantum of concerned, learned counsel Mr. Thakkar submitted that, the Tribunal has taken into consideration monthly income of Rs.7511/- and is more than the amount claimed by the appellants and therefore, the amount of compensation in any manner cannot be said to be unjust and inadequate.

NEUTRAL CITATION C/FA/4159/2008 ORDER DATED: 29/09/2023 undefined

9. Having heard the learned counsel for the respective parties and on perusal of the material placed on record, the issue arise for consideration is to whether the findings recorded by the Tribunal, that the deceased contributed to the occurrence to the alleged accident by his negligence is sustainable? and whether the award of compensation needs any enhancement?

10. On the issue of negligence, this Court finds merits in the contention raised by the appellants herein. It is settled position of law that, the contents of the FIR, panchnama and statement of witnesses are to be taken into consideration only when there has been no eye-witnesses to the accident. Thus, the substantial evidence on the aspect of issue of negligence led before the Tribunal cannot be brushed aside. Thus, the weightage given to the contents of the panchnama and FIR by the Tribunal in determining the contributory negligence attributable to the deceased are contrary to the law and evidence. In such circumstances, the contributory negligence assessed to the extent of 30% is reduced to the extent of 15% and the issue of negligence determined accordingly.

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11. On the aspect of determination of the dependency loss, this Court is of the view that, as per the law laid down by the Apex Court in case of Pranay Shethy, the total amount of compensation, payable to the claimants required to be modified and is computed as under:

Dependency loss : 14,61,504/- (Salary Rs.7518-10% tax=6766 + 50%=3383 Rs.10,149/- less 1/4th = 7612X12X16= 14,61,504/-:

Conventional amount: Rs.1,60,000/-

    Funeral and Estate:        Rs. 30,000/-
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            Total          Rs. 16,51,504/-

Less 15% contributory: Rs 2,47,726/-

========== Total Rs. 14,03,778/-

Less: awarded amount:Rs12,07,571/-

======== Enhanced amount of compensation Rs.1,96,207/-

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12. For the reasons recorded, the appeal is allowed in part. The appellant is entitled to get the total enhanced amount of compensation Rs.1,96,207/-. The enhanced amount will carry the rate of interest at the rate of 6% from the date of claim petition. The Insurance Company shall deposit the amount of compensation with interest within 2 months from the receipt of this judgment and award. The claim Tribunal shall disburse the entire amount without making further investment in the FDRs. Decree be drawn accordingly.

(ILESH J. VORA,J) P.S. JOSHI Page 6 of 6 Downloaded on : Fri Sep 29 20:46:02 IST 2023