Gujarat High Court
Heirs Of Decd. Dilipbhai Dhirubhai ... vs Balubhai Rajabhai Vala on 11 February, 2025
NEUTRAL CITATION
C/FA/8/2013 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 8 of 2013
With
R/FIRST APPEAL NO. 9 of 2013
With
R/FIRST APPEAL NO. 10 of 2013
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HEIRS OF DECD. DILIPBHAI DHIRUBHAI JANKANT & ORS.
Versus
BALUBHAI RAJABHAI VALA & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2,3,4,5
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR PREMAL R JOSHI(1327) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/02/2025
COMMON ORAL ORDER
1. Since all three First Appeals filed u/s 173 of the Motor Vehicles Act, 1988 (in short "the Act") arise out of selfsame accident having common judgment and award in three different MACP being MACP Nos.134 of 2005, 135 of 2005 and 136 of 2005 filed u/s 166 of the Act and partly-allowing the petitions by judgment and award dated 06.05.2011 passed by the learned MACT (Aux), Veraval, they are being disposed of by this common order.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 29.10.2005, deceased Dilipbhai was driving Hero Honda motorcycle No.GJ-11-AA-3545 and his wife and daughter were travelling as pillion rider on the said motorcycle and when they Page 1 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined reached near the place of accident, one luxury Bus bearing No.GJ-11-T-1642 came in rash and negligent manner and dashed with the motorcycle and upon occurrence of the accident, deceased Dilipbhai sustained fatal injuries and later on died, whereas his wife and daughter sustained severe injuries.
2.2 Heard learned advocate Mr.Tushar Sheth for the claimants, learned advocate Mr.Premal Joshi appearing for respondent No.2 and learned advocate Mr.Dakshesh Mehta appearing for respondent - Insurance Company.
3. Learned advocate Mr.Tushar Sheth for the appellants -
claimants has submitted that the Tribunal has committed an error in not fastening 20% liability upon the deceased in causing the road accident without there being any finding or reasoning given by the learned Tribunal. Therefore, he submits that the finding of learned Tribunal attributing 20% negligence to the deceased is devoid of any reasons and same is required to be quashed and set aside. He would further submit that deceased was working as store keeper with Hindustan Lever Limited and his pay slip was produced at Exhibits 33 and 34, yet learned Tribunal for no reasons has taken up income of deceased to Rs.6,000/-. He would further submit that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like prospective income of the deceased, negligence, liability and family circumstances, etc. 3.1 He would further submit that as far as pillion riders i.e. wife and daughters of deceased and claimants of M.A.C.P. Page 2 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined Nos.135 of 2005 and 136 of 2005 are concerned, learned Tribunal has committed error in attributing 20% negligence even for the pillion riders. He would submit that learned Tribunal for minor injured claimant who has suffered 7% disablement granted Rs.22,720/-, however, learned Tribunal ought to have granted compensation as per the judgment of Hon'ble Supreme Court in case of Master Mallikarjun vs. Divisional Manager, National Insurance Company Limited - 2014 (14) SCC 396. In so far as claimant of M.A.C.P. No.136 of 2005 is concerned, learned Tribunal has taken up income of claimant at Rs.2,000/- for the accident which took place in the year 2005. He would further submit that in case of Arun Kumar Agrawal vs. National Insurance Company Limited - 2010 (9) SCC 218, the Hon'ble Supreme Court has taken up the income of claimant who was homemaker at Rs.5,000/-, however, in the present case for no reasons, learned Tribunal has taken up Rs.2,000/- and niggardly granted total compensation of Rs.1,13,000/-. He has submitted that the compensation is required to be enhanced in all three matters by modifying the award impugned accordingly and these appeals may be allowed.
4. Per contra, learned advocates appearing for the other side has submitted that the impugned judgment and award passed by the Tribunal is just and proper. They would further submit that learned Tribunal has rightly attributed 20% negligence to the deceased in causing the road accident. However, they submitted that as far as pillion riders are concerned, fastening liability of 20% upon them for causing the road accident is erroneous approach on the part of learned Tribunal. Upon above Page 3 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined submissions, they submit to pass necessary orders.
5. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and Page 4 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined what could be granted must be just, fair and equitable compensation.
6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the learned Tribunal. Let me refer to the facts of the case to understand the manner in which road accident took place. On ill-fated day i.e. on 29.10.2005, deceased Dilipbhai was riding Hero Honda motorcycle No.GJ-11-AA-3545 and his wife and daughter were travelling as pillion rider on the said motorcycle and when they reached near the place of accident, one luxury Bus bearing No.GJ-11-T-1642 came in rash and negligent manner and dashed with the motorcycle and upon occurrence of the accident, deceased Dilipbhai sustained fatal injuries and later on died, whereas two other claimants i.e. his wife and daughter sustained severe injuries but they survived. The finding of the learned Tribunal made in para 9 of the impugned judgment and award is reproduced as under :
"So far as the negligence on the part of both the vehicle drivers are concerned, considering the nature of both the involved vehicle, this Tribunal is of the view that the vehicle Bus appears to be more heavier vehicle than the vehicle Hero Honda Motor Cycle and hence, driver of Bus No.GJ-11T-1642 is held 80% negligent while driving his vehicle an same way, the driver of Hero Honda Motor Cycle No.GJ-11AA-3545 is also held 20% negligent. In view of the aforesaid discussion, issue No.1 is decided in the affirmative accordingly."
6.2 It appears that since two vehicles are involved in the road accident, learned Tribunal has attributed 20% negligence upon Page 5 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined the deceased and 80% negligence upon the driver of the bus driver, which appears to be safe approach on the part of the learned Tribunal. In fact while assessing contributory negligence learned Tribunal some act or omission, which materially contributed to the accident or the damage, should be attributed to the person against whom it is alleged. Learned Tribunal is also required to assess that by his own act one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty. The Hon'ble Supreme Court in case of T. O. Anthony vs Karvarnan and Others - 2008 (3) SCC 748, has held as under :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."Page 6 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025
NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined 6.3 In the recent judgment in case of K. Anusha vs. Regional Manager, Shriram General Insurance Company Limited, being Civil Appeal No.6237 of 2021, the Hon'ble Supreme Court has held as under :
"13. Therefore, the entire reasoning of the High Court on Issue No.1 is riddled with inherent contradictions. To establish contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person againstwhom it is alleged. In Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and Others this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd. , to hold that "...where, by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty". In fact, the statement of law in Swadling v. Cooper, that "...the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence...", was also quoted with approval by this Court. Therefore, we are compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence."
6.4 In the present case, the finding arrived at by learned Tribunal to fasten 20% negligency upon deceased for causing road accident is riddled with no reasons and its requires to be quashed and set aside. It is quashed and set aside. In so far as wife and daughter of the deceased are concerned, they are pillion riders and they are victim of the road accident and yet learned Tribunal has assessed 20% negligency upon them. Learned advocate failed to understand the concept of composite negligence. This finding is totally incorrect and deserves to be quashed and set aside. Accordingly, it is quashed and aside. For the reasons stated hereinabove, for all three matters, the Page 7 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined assessment of 20% negligence of Hero Honda motorcyclist as well as pillion riders is quashed and set aside.
6.5 The deceased was serving as store keeper with Hindustan Lever Limited and his pay slips of March and April, 2005 are produced at Exhibit-33 and 34 showing his income as Rs.7,500/-, however, learned advocate has erroneously assessed his income at Rs.6,000/- without any reason and ignoring the evidence produced on record at Exhibit-33 and 34. Hence, this Court fixes income of deceased at Rs.7,500/-. Since the deceased was 32 years old at the time of road accident, thus considering the ratio laid down by Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi
- 2017 (16) SCC 680, 50% rise in income for loss of future prospects is granted as he has no permanent source of income and multiplier of 16 would be applied. As the deceased is survived by five persons, 1/4 shall be deducted for personal and pocket expenses. Further, considering the ratio laid down by the Hon'ble Apex Court in the case of Pranay Shethi (supra), the general and non-pecuniary damages, Rs.18,150/- each towards loss of estate and funeral expenses should be awarded. Towards loss of consortium, there are five dependents and therefore, Rs.48,400/- to each dependent should be awarded as per the decision of the Hon'ble Apex Court in the case of United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. The interest rate granted by the learned Tribunal is maintained.
6.5 As far as M.A.C.P. No.135 of 2005 is concerned, since the claimant is minor daughter who has sustained severe injuries, Page 8 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined as per the judgment of Master Mallikarjun (supra), this Court thinks it fit that compensation of Rs.1,00,000/- is to be granted to the claimant.
6.6 As far as M.A.C.P. No.136 of 2005 is concerned, wife of deceased was 31 years and was homemaker and was giving invaluable service to her family which cannot be calculated in money. Yet taking clue from the judgment of Hon'ble Supreme Court in case of Arun Kumar Agrawal vs. National Insurance Company Limited, this Court fixes income of claimant - wife of deceased at Rs.4,000/-. On their own volition, parties have accepted 14% functional disability of the claimant. Since the claimant was 30 years old at the time of road accident, thus considering the ratio laid down by Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi
- 2017 (16) SCC 680, 40% rise in income for loss of future prospects is granted as she has no permanent source of income and multiplier of 17 would be applied. Rs.10,000/- is granted towards compensation for pain, shock and suffering and Rs.10,000/- is granted towards compensation for special diet, transportation charges etc. The claimant has produced medical bills of Rs.73,702/- and thus, the figure of medical expenses is rounded off to Rs.75,000/- and the same is granted under the head of medical expenses. Six months actual loss of income is granted at Rs.24,000/- (Rs.4000/- x six months). The interest rate granted by the learned Tribunal is maintained.
6.2 Therefore, total compensation would be as under, which the claimants/s is/are entitled to get.
Page 9 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025 NEUTRAL CITATION C/FA/8/2013 ORDER DATED: 11/02/2025 undefined FIRST APPEAL NO.8 OF 2013 : Particulars Awarded by Amount (Rs.) Tribunal Future dependency Loss 8,10,000/- 16,20,096/- =Rs.7500/- + Rs.3750/- (50% rise)
=Rs.11,250/- minus 1/4 for personal exp.
=Rs.8438/- x 12 months x 16 multiplier
Loss of Estate 10,000/- 18,150/-
Funeral expenses 2,000/- 18,150/-
Consortium (Rs.48,400/- x 5 dependents) 10,000/- 2,42,000/-
Less: 20% self negligency of the deceased 1,66,400/- Nil
Total 6,65,600/- 18,98,396/-
Less: Amount which is already awarded -- 6,65,600/-
Additional amount which is awarded 12,32,796/-
FIRST APPEAL NO.9 OF 2013 :
Particulars Awarded by Amount (Rs.)
Tribunal
Compensation of Rs.1,00,000/- as per the 22,720/- 1,00,000/-
judgment of Master Mallikarjun (supra).
Less: Amount which is already awarded -- 22,720/-
Additional amount which is awarded 77,280/-
FIRST APPEAL NO.10 OF 2013 :
Particulars Awarded by Amount (Rs.)
Tribunal
Future dependency Loss 53,760/- 1,59,936/-
=Rs.4000/- + Rs.1600/- (40% rise)
=Rs.5,600/- x 14% disability x 12 months x 17 multiplier Pain, shock and suffering 5,000/- 10,000/-
Medical expenses 74,000/- 75,000/-
Special diet, Attendant Charges and 4,500/- 10,000/-
Transportation Expenses
Loss of Actual income (Rs.4000/- x 6 months) 4,000/- 24,000/-
Less: 20% self negligency of the deceased 28,260/- Nil
Total 1,13,000/- 2,78,936/-
Less: Amount which is already awarded -- 1,13,000/-
Additional amount which is awarded 1,65,936/-
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NEUTRAL CITATION
C/FA/8/2013 ORDER DATED: 11/02/2025
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7. Therefore, I hold that the claimants of M.A.C.P. Nos.134, 135 and 136 of 2005 are entitled to get the enhanced compensation of Rs.12,32,796/-, Rs.77,280/- and Rs.1,65,936/-, respectively with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeals are partly allowed.
8.2 The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order.
8.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 11 of 11 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:13:29 IST 2025