Gujarat High Court
Patel Mayurkumar Ramanlal vs Meena Devraj Ramnarayan on 14 February, 2025
NEUTRAL CITATION
C/FA/550/2018 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 550 of 2018
With
R/FIRST APPEAL NO. 551 of 2018
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PATEL MAYURKUMAR RAMANLAL & ANR.
Versus
MEENA DEVRAJ RAMNARAYAN & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2025
COMMON ORAL ORDER
1. Since both the First Appeals filed u/s 173 of the Motor Vehicles Act, 1988 (in short "the Act") arise out of selfsame accident having judgment and award in two different MACP being MACP Nos.568 of 2012 and 569 of 2012 filed u/s 166 of the Act and partly-allowing both the petitions by judgment and award dated 30.08.2017 passed by the learned MACT (Aux), Sabarkantha, 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 29.06.2012, deceased minor Brijkumar Patel and his mother Sonalben Patel were travelling in Innova Car No.GJ-1-HK-9888 towards Airport and when they reached near the place of accident, one Tanker No.RJ-14-G-7196 came in rash and negligent manner and dashed with the Innova car and upon occurrence of the accident, both deceased persons sustained fatal injuries and later on died.Page 1 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025
NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined
3. Learned advocate for the appellants - claimants has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. The appeals are filed on two counts. Firstly, learned Tribunal in case of composite negligence erred in assessing contributory negligence of the occupants of Innova car. Secondly, he has submitted 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 has submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocate for respondent - Insurance Company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased, the age of the deceased, the dependency and future aspect of income. He has submitted that under the head of loss of estate and funeral expenses, the Tribunal has rightly awarded compensation. He has submitted that the amount under the head of loss of consortium is just and proper. He has submitted that this appeal may be dismissed and no interference be made by this Court.
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 Page 2 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025 NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined 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 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 Page 3 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025 NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined Tribunal. I have gone through the impugned judgment and award passed by the learned Tribunal. What could be noticed that on ill-fated day i.e. on 29.06.2012, deceased minor Brijkumar Patel and his mother Sonalben Patel were travelling in Innova Car No.GJ-1-HK-9888 towards Airport and when they reached near the place of accident, one Tanker No.RJ-14-G-7196 came in rash and negligent manner and dashed with the Innova car and upon occurrence of the accident, both deceased persons sustained fatal injuries and later on died. Learned Tribunal believed that Innova car driver is 90% negligent in causing the road accident and tanker driver is 10% negligent in causing the road accident. Learned Tribunal after assessing the total compensation grantable to the claimants, slashed 90% claim amount of the claimants and in such a way , learned Tribunal in case of composite negligence deducted claim amount of occupants of Innova car. The approach of the learned Tribunal is totally erroneous. Perhaps learned Tribunal did not understand the difference between composite negligence and contributory negligence. In case of T. O. Anthony vs Karvarnan and Others - 2008 (3) SCC 748, the Hon'ble Supreme Court has explained the terms composite negligence and contributory negligence 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 Page 4 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025 NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined 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.
6.2 The issue of contributory negligency is succinctly explained by the Hon'ble Apex Court in case of Prem Lal Anand And Others Versus Narendra Kumar And Others, 2024 (9) SCC
441. Relevant para reads as under:-
"11. At this stage, it would be appropriate to consider pronouncements of this Court on contributory negligence.
11.1 In Municipal Corporation of Greater Bombay vs. Laxman Iyer & Anr., (2003) 8 SCC 731 , this Court discussed the concept of negligence and its types, i.e., composite and contributory, in the following terms :-
"6...Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of Page 5 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025 NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. ... Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. ... It is now well settled that in the case of contributory Page 6 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025 NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined negligence, courts have the power to apportion the loss between the parties as seems just and equitable." (Emphasis supplied)."
6.3 In view of above judgments, the findings arrived at by the learned Tribunal is found to be totally erroneous. Deceased minor Brijkumar and his mother were travelling in Innova car have became the victim of the road accident by act of some other person and they are, in view of judgment of Hon'ble Supreme Court in case of Khenyei vs. New India Assurance Company Limited - 2015 (9) SCC 273, are entitled to received compensation jointly and severally from any of the tortfeasor. Inter se negligence of drivers of two vehicles would not affect their right to claim total compensation. In view of the aforesaid reasoning, finding of learned Tribunal to attribute contributory negligence to slash the amount of compensation to the claimants is required to be quashed and set aside. Accordingly, it is quashed and set aside. Inter se negligence of drivers of Innova car and tanker is maintained.
6.4 Insofar as case of minor Brijkumar is concerned, in view of judgment of Hon'ble Supreme Court in case of Meena Devi Versus Nunu Chand Mahto - 2023 (1) SCC 204, whereby the Hon'ble Supreme Court has applied the principle laid down in case of Kishan Gopal and another vs. Lala and others - (2014) 1 SCC 244, the compensation of Rs.5,00,000/- is to be granted to the claimant. Hence, the claimant is entitled to get total compensation of Rs.5,00,000/-. Learned Tribunal has granted compensation of Rs.35,400/-. Therefore, the amount of compensation granted to the claimant is enhanced by Rs.4,64,600/- with interest at 8% p.a. from the date of petition till realization.
Page 7 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025NEUTRAL CITATION C/FA/550/2018 ORDER DATED: 14/02/2025 undefined 6.5 Insofar as deceased Sonalben Patel is concerned, from the record, it transpires that the learned Tribunal has erred in taking up her income at Rs.3,000/- which according to this Court should be fixed at Rs.4,500/-. Accordingly, her income is taken up at Rs.4,500/- and since decased Sonalben was 32 years of age at the time of accident and having no permanent source of income, 40% future prospects is granted in view of judgment of Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi - 2017 (16) SCC
680. 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 two 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 learned Tribunal is maintained. Therefore, total compensation would be as under, which the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 8,06,400/-
=Rs.4500/- + 1800/- (40% rise)
=Rs.6300/- minus 1/3 for personal exp.
=Rs.4200/- x 12 months x 16 multiplier
Loss of Estate 18,150/-
Funeral expenses 18,150/-
Consortium (Rs.48,400/- x 2 dependents) 96,800/-
Total 9,39,500/-
Less: Amount which is already awarded 42,400/-
Additional amount which is awarded 8,97,100/-
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NEUTRAL CITATION
C/FA/550/2018 ORDER DATED: 14/02/2025
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7. Therefore, I hold that the claimants of M.A.C.P. Nos.568 of 2012 and 569 of 2012 are entitled to get the enhanced compensation of Rs.4,64,600/- and Rs.8,97,100/-, respectively with 8% p.a. interest from the date of filing the claim petition till its realization from the opponents jointly and severally, 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 Both the present appeals are partly allowed.
8.2 Respondent No.3 - Insurance Company is directed to deposit the entire amount of compensation including interest and cost, after deducting the amount, if any, already deposited before the learned Tribunal within a period of six weeks from the date of receipt of this order. The Insurance Company is entitled to recover the excess amount which it has paid from the other wrong doer by executing this judgment.
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 9 of 9 Uploaded by GAURAV J THAKER(HC00951) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 23:37:07 IST 2025