Gujarat High Court
Bhikhubhai Popatbhai Bhakhothara ... vs Ghanshyam Kathad Bhakhothara on 25 April, 2025
NEUTRAL CITATION
C/FA/4647/2009 JUDGMENT DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4647 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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BHIKHUBHAI POPATBHAI BHAKHOTHARA DECD. THROUGH
CHANDRIKA & ANR.
Versus
GHANSHYAM KATHAD BHAKHOTHARA & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
MS HINA DESAI(1023) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1,2
UNSERVED EXPIRED (R) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/04/2025
ORAL JUDGMENT
1. The present First Appeal is filed by appellants- original claimants against the judgment and award dated 26.02.2009 passed by learned Motor Accident Claims Tribunal (Aux.), Gondal in MACP No.390 of 1994, wherein learned Tribunal has partly allowed claim petition. Page 1 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025
NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined
2. Heard learned advocate Mr.Tushar Sheth for appellants and learned advocate Mr.Sunil Parikh for respondent No.3 and learned advocate Ms.Hina Desai for respondent No.5. Though served, none appeared for respondent Nos.1 and 2.
3. Brief facts of the case are as under:
3.1 On 13.07.1994, deceased Bhikhubhai Popatbhai was travelling in Matador bearing registration No.GRP-
4484 as a cleaner. When they reached near village Navagadh, at that time, driver of S.T.Bus bearing registration No.GJ-12-2306 came in rash and negligent manner at an excessive speed and dashed with Matador. Resultantly, deceased sustained serious injuries and was taken for primary treatment in Government Hospital, Jetpur, where he died during the treatment. FIR was lodged against the driver of Matador.
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NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined 3.2 The legal heirs/representatives of deceased filed a claim petition claiming compensation of Rs.5,00,000/- from the opponents. Notices were issued and served to the opponents. Opponent Nos.1, 2 & 4, though served, did not appear and file Written Statement. Opponent No.3 - Insurance Company of Matador appeared and filed Written Statement at Ex.11 and denied its liability. Opponent No.4 being driver of S.T.Bus though served, did not file Written Statement. Opponent No.5 - Gujarat State Road Transport Corporation appeared and filed Written Statement at Ex.18 and denied its liability. Claimant No.3 filed Examination- in-chief at Ex.45 and produced documentary evidence such as FIR, panchnama of the scene of accident, postmortem report, and other relevant documents in support of their claim petition. After considering the evidence, learned Tribunal partly allowed the claim petition and dismissed Application against opponent No.3 and exonerated from the liability. Learned Tribunal awarded compensation of Page 3 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined Rs.1,15,600/- with 7.5% interest from the opponents. Learned Tribunal by finding drivers of both the vehicles negligent to the extent of 50% each but exonerated the Insurance Company on the ground that the deceased was a gratuitous passenger.
3.3 Being aggrieved and dissatisfied with the impugned judgment and award, present appellants are before this Court for enhancement of compensation.
4. Learned advocate for the appellants submitted that on the date of accident, deceased was aged about 50 years and was travelling in matador as a cleaner. Due to rash and negligent driving of driver of Bus, accident occurred. It is submitted that the accident was head-on collusion and learned Tribunal found the drivers of both offending vehicles negligent in equal proportion. Deceased was earning between Rs.1,500/- and Rs.2,000/- per month. However, in absence of supporting evidence, learned Page 4 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined tribunal assessed the income of deceased at Rs.1,200/- per month. Learned Tribunal failed to award compensation for future prospective income and also granted lesser compensation under the conventional head including funeral expenses. Therefore, the impugned judgment and award be modified and the compensation amount may be enhanced accordingly. No other submissions are made by learned advocate for appellant.
5. Per contra, learned advocate for the Insurance Company has supported the judgment and award and submitted that the learned Tribunal after considering the evidence on record has awarded just and reasonable compensation.
6. Learned advocate for Gujarat State Road Transport Corporation has submitted that claimants in the appeal has prayed for compensation from the Insurance Company and the learned Tribunal has held the driver of Page 5 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined Matador negligent to the extent of 50%. Therefore, the Insurance Company is also required to be saddled with the liability. No other submissions are made by learned advocate for respondent.
7. I have considered the submissions canvassed by the learned advocates for the respective parties and also perused the record and proceedings. The learned Tribunal after considering the evidence has found that the deceased was travelling in the Matador as a gratuitous passenger. The Panchnama of the place of accident, along with other supporting material, confirm that the deceased was not travelling in the Matador as a cleaner. In absence of any contrary material, I do not find any reason to interfere in the findings arrived at by learned Tribunal.
8. So far as income is concerned, though no evidence is placed on record to substantiate the income, it would be in the interest of justice, if the income of Page 6 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined deceased which has been assessed by learned Tribunal at Rs.800/- per month is enhanced to Rs.1500/- per month. Learned Tribunal has not considered compensation for future prospective income. Considering the ratio laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors reported in (2017) 16 SCC 680, 25% is required to be added as prospective income. Hence, total income comes to Rs.1875/- (Rs.15,00 + 25%) per month. Considering the number of claimants, it would be just and reasonable to deduct 1/3 under the head of personal and living expenses. The age of the deceased was 50 years at the time of accident, therefore, multiplier of 13 would be applicable in view of settled law. Claimants are also entitled to the compensation under the head of loss of consortium, loss of estate and funeral expenses as per settled propositions of law.
9. The present case is a case of composite negligence as learned Tribunal has found both the vehicles Page 7 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined negligent to the extent of 50%. Therefore, the claimants can recover compensation from either of joint tortfeasor. Decision of Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Company Limited & Ors. reported in (2015) 9 SCC 273 would be apt to refer herein. In paragraph No.22, the Hon'ble Apex Court has observed in para 22.1 to 22.4 which is reproduced as under:
"22.1 In the case of composite negligence, plaintiff/ claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by Page 8 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.
10. The contention of the learned advocate for Gujarat State Road Transport Corporation that prayer in the appeal is against the Insurance Company is not accepted for the reason that the claimants have prayed in the appeal that the order holding the respondents liable to satisfy the award jointly and severally and holding Insurance Company liable to satisfy the award. The prayer sought for in the appeal is not restricted against the Insurance Company but it is against all respondents. Learned Tribunal has exonerated the Insurance Company from the liability by considering the decision of New India Page 9 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined Assurance Co. Ltd. Vs. Asha Rani & Ors. reported in (2003) ACJ 1. The enhanced amount be recovered from the original opponent Nos.4 and 5 jointly and severally by claimants considering the decision of Khenyei (supra). The order of exoneration of Insurance Company from the liability to pay compensation is upheld.
11. In view of the aforesaid discussions, appellants - original claimants are entitled to following amount of compensation.
Under the Head of Compensation of Rs.
Future loss of income
Monthly income = Rs. 1,500/-
Prospective income 25%
(Rs.1500 + 25%) = Rs. 1,875/-
Deduction 1/3
(Rs.1875 x 1/3 ) = Rs. 625/-
Total Income
[Rs.1875 - Rs.625/-]= Rs. 1,250/-
(Rs.1250 x 12 x 13) = Rs. 1,95,000/- 1,95,000/-
Loss of estate 18,150/-
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NEUTRAL CITATION
C/FA/4647/2009 JUDGMENT DATED: 25/04/2025
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Loss of consortium 96,800/-
(Rs.48,400 x 2 = Rs.96,800/-)
Funeral expenses 18,150/-
Grand Total 3,28,100/-
Less awarded amount of 1,15,600/-
compensation by Tribunal
Rs.1,15,600/-
Enhanced amount 2,12,500/-
(Rs.3,28,100 - Rs.1,15,600/-)=
Interest @7.5%
12. The appellants are entitled to enhanced amount of compensation of Rs.2,12,500/- @ 7.5% per annum from the date of claim petition till realization from Insurance Company. Appellants are entitled to recover compensation either from Insurance Company and/or from Gujarat State Road Transport Corporation.
13. The Gujarat Road Transport Corporation is directed to deposit enhanced amount of compensation with interest as above within a period of 6 Weeks from the date of receipt of this order. Upon such deposit, it will be open to the appellants to approach the learned Tribunal Page 11 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025 NEUTRAL CITATION C/FA/4647/2009 JUDGMENT DATED: 25/04/2025 undefined for appropriate orders for withdrawal. The learned Tribunal shall disburse the same after proper identification and verification by following due procedure.
14. While making the payment, learned Tribunal/Court shall deduct the Court Fess, if not paid, in accordance with prevailing Rule.
15. Resultantly, the present First Appeal is partly allowed accordingly. The judgment and award dated 26.02.2009 passed by learned Motor Accident Claims Tribunal (Aux.), Gondal in MACP No.390 of 1994, is modified to the aforesaid extent.
16. Record and proceedings, if any, received, be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 12 of 12 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 17 03:01:46 IST 2025