Gujarat High Court
Ashokbhai Kantibhai Patel vs Raghunathbhai Virsangbhai Chaudhary on 22 January, 2025
NEUTRAL CITATION
C/FA/1222/2007 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1222 of 2007
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ASHOKBHAI KANTIBHAI PATEL
Versus
RAGHUNATHBHAI VIRSANGBHAI CHAUDHARY & ORS.
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Appearance:
MR KAMLESH S KOTAI(6150) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE SERVED BY DS for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/01/2025
ORAL ORDER
Being aggrieved and dissatisfied with the judgement and dated 18th November, 2006 passed by the Learned Judge of the Motor Accident Claims Tribunal (Main), Patan in Motor Claims Petition No. 580 of 2002 (Old No.290 of 1992), the appellant - org. claimants has preferred this appeal under Section 173 of the MV Act whereby the tribunal has awarded compensation of Rs.1,28,000/- with interest at the rate of 7.5% from the date of filing of the petition till its realization holding opponents no.1 and 2 to the extent of 70% and opponent no.3 to the extent of 30% liable to pay the compensation.
2. The short facts of the case are that the org. claimant alongwith his wife and children were going from Vadodara to Sidhdhpur on 06/09/1991 in the jeep owned by opponent no.1 and when the said jeep reached near the Mehsana - Unjha Highway at that time truck bearing No.HR-26-5186 owned by opponent no.3 stationed on the road without marking any parking light or signal light or any other mark showing that truck was stationary, the jeep driver having failed to notice that truck was stationary Page 1 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025 NEUTRAL CITATION C/FA/1222/2007 ORDER DATED: 22/01/2025 undefined on the road, rammed into it resulted into causing grievous injuries to the appellant who was serving as Ayurvedic Doctor.
2.1 The claim petition was filed and learned tribunal after considering the oral and documentary evidence passed the award as stated in paragraph 1 of this judgment.
3. Heard learned advocate for the parties.
4. Learned Advocate Mr.Kotai for the appellant would submit that deceased was travelling in the jeep which met with the accident on account of the stationary truck on the road without any parking signal or light. He would further submit that it is a case of composite negligence yet the tribunal in operative portion of the order apportioned inter se negligence of two wrong doers and ordered to deduct negligence of the two wrong doers. He would further submit that such finding is in teeth of the judgment of the Full Bench of this Court in case of Khenyei Versus New India Assurance Company Limited [2015 (9) SCC 273]. He would further submit that in case of composite negligence claimant would have option to recover the entire amount of compensation jointly and severally and therefore the order of the tribunal fastening liability in the ratio of 70% and 30% is bade in law and requires to be interfered.
4.1 By making above submissions, he would submit to allow this appeal.
5. On the other hand, learned advocate Mr.Parikh would submit that respondent no.3 was opponent no.3 in the claim petition who was died in the year 2008 and heirs are not brought on record of the case. This submission is made with a view to argue that claimant would forego the Page 2 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025 NEUTRAL CITATION C/FA/1222/2007 ORDER DATED: 22/01/2025 undefined amount of compensation in regards to 30% negligence attributed to respondent no.3 by the tribunal. In other words, it is argued that since the heirs of the respondent no.3 are not joined, the finding of tribunal attributing 30% negligence to respondent no.3 in causing road accident cannot be remained and claimant would not be entitled to receive 30% amount of compensation from the total amount of compensation.
5.1 By making above submissions, he would submit to dismiss the appeal.
6. Having heard the learned advocates appearing for the respective parties and examined R & P, what could be noticeable that the top road killer accident had made permanent impairment to the victim of the road accident who was an Ayurvedic Doctor at the time of road accident. The tribunal has adopted yearly income of the victim at Rs.24,000/- keeping in mind the profession of the victim he having registered Medical Practitioner and having medicine manufacturing company registered. It was therefore urged to take higher side of the income. To be noted that, rate of minimum wage cannot be applied in a specific case where the claimant is having capacity to earn through his / her profession even in absence of any documentary evidence. Thus, there would not be any error on the part of tribunal in taking monthly income at Rs.2,000/- but prospective income is required to be granted as the victim was 42 years at the time of road accident. It would be worth to mention that looking to the profession with which the victim was involved and in absence of of evidence to have continuous source of income of the deceased 25% rise in his income is required to be granted by applying multiplier of 14 instead of 12 in view of decision in case of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680].
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7. To be noted further that PW 2 - Dr. Maheshbhai Khandelval has been examined at Exh.40 and he has issued the physical disability certificate to the victim. As many as four fractures were noticed in the said certificate which reads as under:
1. Fracture bicondylar tibia Lt knee treated twice once for plating and then implant removal.
2. Fracture dislocation central Lt hip joint.
3. Fracture of calcanium Lt ankle.
4. Fracture of shaft femur Rt hip treated twice once by nailing and then bty Ilizarov ext. fixatour.
Restriction in the movement of left knee is also noted as well as in left leg is also noted. The learned tribunal has without any reason recorded 25% permanent disability; whereas the PW 2 who examined had issued certificate recording 65% permanent partial disability. However, considering the fact and circumstances of the case, 50% permanent partial disablement is considered. The tribunal granted amount of Rs.25,000/- for medical expenses as per the medical bills; Rs.15,000/- for PSS, Rs.10,000/- for special diet, etc., and Rs.6,000/- for actual loss of income which is maintained by this Court.
8. Now, insofar as the composite negligence is concerned, at this juncture, I am refer to the decision in case of Khenyei Versus New India Assurance Company Limited [2015 (9) SCC 273] where in paragraph 12 the Hon'ble Apex Court has observed as under:
"12. A Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya & Ors. V. M.P. State Road Transport Corpn. & Anr. [2005 (1) MPLJ 372] has also laid down that in case of composite negligence, the liability is joint and several and it is open to Page 4 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025 NEUTRAL CITATION C/FA/1222/2007 ORDER DATED: 22/01/2025 undefined implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tort feasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tort feasors. The relevant portion of decision of Full Bench is extracted hereunder :
"When injury is caused as a result of negligence of two joint tort-feasors, claimant is not required to lay his nger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sucient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the Page 5 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025 NEUTRAL CITATION C/FA/1222/2007 ORDER DATED: 22/01/2025 undefined compensation. On the same principle, in the case of joint tort- feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There can not be apportionment of claim of each tort- feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim."
9. In the present case, the unfortunately the claimant being third party and was travelling in the jeep driven by its driver which dashed with the stationary truck and therefore calculation of inter se negligence of jeep driver and truck driver to the extent of 70% and 30% respectively will be of composite negligence for the claimant. The claimant would have option to recover the amount of compensation from any of the tort-feasor jointly and severally. The tribunal without understanding the law in Khenyei (supra) made the order of 70% and 30% as aforesaid. This finding is in teeth of the decision in case of Khenyei (supra). Accordingly, the said finding is quashed and set aside. The claimant would be entitled to recover the compensation from any of the tort-feasor jointly and severally.
10. For the foregoing reasons, the appeal is allowed.
11. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
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(multiplier) x 12 [calculating 50% permanent partial disability] Actual loss of income 6,000/-
Pain shock and suffering 15,000/-
Medical Expenses 25,000/-
Attendant and Special Diet 10,000/-
Total 3,08,000/-
Already awarded by the tribunal 1,28,000/-
Enhanced amount of compensation 1,80,000/-
12. Therefore, I hold that the claimants are entitled to get the total amount of compensation of Rs.3,08,000/- 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.
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 amount of compensation of Rs.3,08,000/- 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 Page 7 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025 NEUTRAL CITATION C/FA/1222/2007 ORDER DATED: 22/01/2025 undefined 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 8 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Mon Jan 27 2025 Downloaded on : Mon Jan 27 21:34:48 IST 2025