Gujarat High Court
Miteshbhai Pundaribhai Dave vs Siddiq Abdulrahim Vadhel on 10 January, 2025
NEUTRAL CITATION
C/FA/576/2022 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 576 of 2022
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MITESHBHAI PUNDARIBHAI DAVE
Versus
SIDDIQ ABDULRAHIM VADHEL & ORS.
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/01/2025
ORAL ORDER
Being aggrieved by and dissatisfied with the judgment and award dated 20/04/2019 by Motor Accident Claim Tribunal (AUXI), & Addl. District Judge Panchmahals at Godhra in MACP No. 507 of 2014, the appellant - org. claimant has preferred this appeal whereby the tribunal awarded compensation in the sum of Rs.1,58,692/- with interest at the rate of 7.5% and costs by holding liable to recover from opponent no.1 to 3 to the extent of 80% and 20% from opponent no.4.
2. The short facts of the case are that on 31.12.2013 appellant and his friend Haribhai were going on Motorcycle No. GJ-7 BP-6332 and the applicant was driving the said Motorcycle with great care and slow speed at left side of the Road and Miteshbhai was pillion rider. When they were passing near Vejalpur Crossing, at that point of time, the Opponent No.1 came driving his Truck No. GJ-02 X-2199 in rash and negligent manner with an excessive speed and lost control over his Truck, resulting dashed with the Motorcycle of the applicants, and both the applicant sustained serious Injuries with fracture. Thus, the said accident was occurred due to Page 1 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:54:58 IST 2025 NEUTRAL CITATION C/FA/576/2022 ORDER DATED: 10/01/2025 undefined rash and negligent driving on the part of the Opponent No.1.
3. The claim petition was filed seeking compensation of Rs.3,00,000/- and the learned tribunal after considering the oral and documentary evidence has awarded compensated as stated in paragraph 1 of this judgment.
4. Heard learned advocates appearing for the parties.
5. Learned advocate for the appellant has made two fold submissions. Firstly, he would submit that tribunal has erroneously deducted 20% negligence of the driver of the motorcycle involved in the road accident in respect of the present appellant who was pillion rider and for him, the case is that of composite negligence and he cannot be vicariously liable for negligence of the driver of the offending vehicle. Secondly, he would submit that tribunal has not granted compensation under the head of loss of future prospect and therefore to that extent this Court may grant the future prospect and modify the award.
6. On the other hand, learned advocate Ms.Pathak for the insurance company would support the impugned judgment and order and request to dismiss the present appeal.
7. Having heard the learned advocates appearing for the respective parties and examined the records and proceedings what could be noticed that while the appellant and his friend were going on the motorcycle at moderate speed at that time the opponent no.1 came rashly and negligent in the truck where the accident took place and victim sustained injuries. Two claim petitions were filed. The tribunal assessed negligence of 20% in respect of motorcyclist and 80% of the driver of the truck in causing Page 2 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:54:58 IST 2025 NEUTRAL CITATION C/FA/576/2022 ORDER DATED: 10/01/2025 undefined the road accident. The insurance company has accepted the assessment in respect of negligence between the two wrong doers. No appeal has been filed against such order.
8. On further examining the judgment and award passed by the tribunal, it appears that tribunal has erred in attributing the negligence of the motorcyclist in respect of pillion rider. It is settled law that contributory negligence of the wrong doer cannot be attributed to any third party / pillion rider who became the victim of negligence of wrong doers and thus it is the case of composite negligence for him and can claim the compensation from any of the wrong doer. The tribunal in such cases assessed the inter se negligence of the wrong doers if both the drivers are joined; but cannot consider it for deducting negligence of the wrong dower while computing the compensation for pillion order. Thus, the said finding of the tribunal deducting negligence of the motorcyclist in respect of the pillion rider is quashed and set aside.
9. Now, the quantum aspect is concerned, the tribunal has taken the income at Rs.5580/- per month; and applied the multiplier of 14 considering the age of the injured at 42 years and thereby granted total amount of Rs.1,03,118/- towards the future economic loss. However, the learned tribunal has not considered to grant 40% towards the prospective income. It would be worth to mention that looking to the work with which the deceased was involved and in absence of of evidence to have continous source of income of the victim 40% rise in his income is required to be granted in view of decision in case of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680].
10. In Chandra Mani Nanda vs. Sarat Chandra Swain & Anr., [2024 INSC 777] the Hon'ble Apex Court has again reiterated the ratio that it is Page 3 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:54:58 IST 2025 NEUTRAL CITATION C/FA/576/2022 ORDER DATED: 10/01/2025 undefined the duty of the Court to assess the fair compensation and in paragraph 20 has held as under:
"20. An argument is raised by learned counsel for the insurance company that the appellant has initially claimed a sum of 230,00,000/- and since the same having been awarded to him by the High Court, no further enhancement is possible. We cannot accept this argument and it is duly rejected. It is a settled proportion of law, that the amount of compensation claimed is not a bar for the Tribunal and the High Court to award more than what is claimed, provided it is found to be just and reasonable. It is the duty of the Court to assess fair compensation. Rough calculation made by the claimant is not a bar or the upper limit. Reference in this regard can be made to the judgment of this Court in the case of Meena Devi vs. Nunu Chand Mahto".
11. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income plus 40% prospective 1,44,368/-
income (40% of Rs.103118/-)
Actual loss of income 5,580/-
Pain shock and suffering 11,000/-
Medical Expenses 32,994/-
Attendant and Special Diet 6,000/-
Total 1,99,942/-
Already awarded by the tribunal 1,58,692/-
Enhanced amount of compensation 41,250/-
12. Therefore, I hold that the claimants are entitled to get the total amount of compensation of Rs.1,99,942/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the Page 4 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:54:58 IST 2025 NEUTRAL CITATION C/FA/576/2022 ORDER DATED: 10/01/2025 undefined ends of justice. Rest of the direction(s) of the Tribunal remain same.
13. For the reasons recorded above, the following order is passed.
14. The present appeal is partly allowed.
14.1 The Insurance Company is directed to deposit the enhanced amount Rs.41,250/- with 7.5% p.a. interest from the date of claim petition till its realization before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
14.2 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.
14.3 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
14.4 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 5 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:54:58 IST 2025