Gujarat High Court
Jalpaben Kalpeshkumar Patel Legal Rep. ... vs Fulsinh Chamanbhai Rathwa on 23 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4229/2019 JUDGMENT DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4229 of 2019
With
R/FIRST APPEAL NO. 4230 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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JALPABEN KALPESHKUMAR PATEL LEGAL REP. AND HEIRS OF DECD.
KAPLESHKUMAR RAMDAS PATEL & ORS.
Versus
FULSINH CHAMANBHAI RATHWA & ORS.
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Appearance:
DHAVAL V PATEL(8504) for the Appellant(s) No. 1,2,3,4,5
MR NEERAJ SONI(3433) for the Appellant(s) No. 1,2,3,4,5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The captioned First Appeals are preferred by the respective appellants against the impugned common Page 1 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined judgment and award dated 21.04.2018 passed by the learned Motor Accident Claims Tribunal (Main), Mahesana in Motor Accident Claim Petition Nos.627, 628 and 629 of 2010 considering MACP No.627 of 2010 as main petition whereby the learned tribunal has partly allowed the claim petitions.
2. Since common issues are involved in the captioned appeals and upon consent of learned advocates appearing for the respective parties, the matters are taken up for final hearing and decided by this common judgment.
3. Heard learned advocate Mr.Dhaval Patel, learned advocate Mr.Rathin Raval and learned advocate Mr.Vibhuti Nanavati for the respective parties in the captioned First Appeals. Though served, none appeared for respondent Nos.1, 2 and 4.
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NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined
4. The brief facts of the case are as under:
4.1 On 13/06/2010, at about 3:15 PM, deceased Kalpeshkumar Ramdas Patel, injured Hiteshkumar Amrutlal Patel and deceased Anantkumar Babulal Patel (worker) had gone to Balasinor in an Optra Magnum car bearing registration No.GJ-2-AP-2024 being driven by Hiteshkumar Amrutlal Patel for their business purpose and while returning from Balasinor, when the car reached at the place of accident i.e. Balasinor-Kathlal road, the opponent No.1-driver of truck bearing registration No.GJ-7-X-4950 came from opposite direction with full speed and in a rash and negligent manner endangering life and safety of others and dashed with the car. Resultantly, all three of them sustained serious injuries wherein deceased Kalpeshkumar Ramdas Patel and deceased Anantkumar Babulal Patel (worker) succumbed to their injuries on the spot, whereas Hiteshkumar Amrutlal Patel sustained injuries. Page 3 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025
NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 4.2 The respondent Nos.1 to 5-original claimants being legal heirs of deceased Kalpeshkumar Ramdas Patel filed Motor Accident Claim Petition No.627 of 2010 for a compensation of Rs.1,00,00,000/-and respondent No.8- original claimant i.e. Hiteshkumar Amrutlal Patel filed Motor Accident Claim Petition No.629 of 2010 for compensation of Rs.19,00,000/- before the learned Motor Accident Claim Tribunal (Main), Mahesana. The legal heirs of deceased Anantkumar Babulal Patel (worker) also filed Motor Accident Claim Petition No.628 of 2010 for compensation of Rs.20,00,000/- before the learned Motor Accident Claim Tribunal (Main), Mahesana. The learned Tribunal consolidated all three claim petitions and decided by common Judgment and award considering Motor Accident Claim Petition No.627 of 2010 as main claim petition.
4.3 Notices were duly served to all opponents. Opponent Nos. 1 and 2-driver and owner of truck did not Page 4 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined appear before the Tribunal. Opponent No.3-Insurance Company of truck appeared and filed Written Statement at Exh-142 and denied allegations. Opponent No.4- Hiteshkumar Amrutlal Patel driver of car appeared and filed Written Statement at Exh-14 and denied his negligence in causing accident. Opponent No.5-Insurance Company of car appeared but did not file reply. 4.4 Thereafter, issues were framed at Exh-18 by the learned Tribunal. In M.A.C.P.No.627/2010 - Patel Jalpaben Kalpeshkumar has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.43. In M.A.C.P.No.628/2010 - Patel Babulal Ramdas has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.47 whereas in M.A.C.P.No.629/2010
- Patel Hiteshkumar Amrutlal has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.44.
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NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 4.5 In MACP No.627 of 2010, FIR, spot panchnama, Post mortem Note and Income tax returns (2007-08, 2008- 09, 2009-10 and 2010-11) have been produced at Exhs-49, 50, 52 and 107, 108, 109 and 110 respectively. In MACP No.628 of 2010, Post mortem Note has been produced at Exh-57. In MACP No.629 of 2010, the injured has produced Medical treatment Certificate at Exh-65. 4.6 After considering the evidence and material placed on record, the learned Tribunal vide its judgment dated 21/04/2018 and award dated 23/04/2018, partly allowed all claim petitions and found negligence of truck driver to the extent of 80% and of car driver to the extent of 20%.
4.7 The learned tribunal in MACP No.627 of 2010 awarded a total compensation of Rs.45,35,072/-, and held Opponents Nos. 1 to 3 jointly and severally liable, while exonerated Opponents Nos. 4 and 5 and therefore awarded Page 6 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined Rs.36,28,058 (80% amount of Rs.45,35,072/-). 4.8 In MACP No.628 of 2010, the learned Tribunal awarded a compensation of Rs.12,79,600/- and held Opponents Nos. 1 to 6 jointly and severally liable. 4.9 In MACP No.629 of 2010, the learned Tribunal awarded a total compensation of Rs.11,76,480/-, and deducted 20% contributory negligence and awarded Rs.9,41,184/- (80% amount of Rs.11,76,480) and held Opponents Nos. 1 to 3 jointly and severally liable. Being aggrieved, the appellant-insurance company / appellants- original claimants with their respective First Appeals Nos. are before this Court. No appeal is preferred against Judgment and award passed by learned Tribunal in MACP No.628 of 2010.
5. Learned advocate for the appellant/s- original claimant/s in the respective matters submitted that granting of compensation by the learned Tribunal is on a Page 7 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined lower side. The driver was driving the car at a moderate speed and without any specific and clear evidence attributing negligence on the part of the car driver. The learned Tribunal has erred in holding car driver negligent to the extent of 20% in the occurrence of accident. The finding on the question of negligence is erroneous as the driver of truck bearing Registration No.GJ-07-X-4590 has not deposed on the question of negligence. It is submitted that the driver of truck came from opposite direction with an excessive speed and dashed with the car. A chargesheet against the driver of truck was also filed which further strengthens the case of the claimants that accident has occurred due to sole negligence on the part of truck driver.
5.1 It is further submitted that deceased was aged about 32 at the time of accident and was doing business of manufacturing, purchasing, selling and trading of all Page 8 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined types of articles. It is also submitted that the learned Tribunal has erred in discarding income of assessment year of 2010-11 and taken into consideration average annual income of deceased as Rs.2,65,778/- per annum. It is further submitted that, looking to the annual income of deceased, learned Tribunal has awarded compensation on the lower side.
6. Per contra, learned advocate for respondents- Insurance Company in the respective matter submitted that the learned Tribunal has awarded compensation of Rs.36,28,058/- (80% amount of Rs.45,35,072/-) which is just and proper. The further contention raised by the learned advocate for the respondent is that the insured of the vehicle was not holding a licence on the date of accident. The RTO Officer who was examined at Ex.146 has deposed that the licence at Ex.151 did not have an endorsement of renewal for the period of 04.03.2008 to Page 9 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 03.03.2011. It is therefore submitted that when the driver of the vehicle was not holding effective driving licence, the insurance company cannot be saddled with the liability of making payment of compensation.
7. We have considered the submissions canvassed by learned advocates for the respective parties and also perused record and proceedings. On the date of accident, while claimant Hiteshkumar Amurt Patel alongwith two other persons namely Kalpeshkumar Ramdas Patel and Anantkumar Babulal Patel were traveling in car bearing No.GJ-2-AP-2024 and reached near the place of accident, a truck coming from opposite direction dashed with the car. Resultantly, claimant-Hiteshkumar Amrutlal Patel sustained serious injuries and other two passengers namely Kalpeshkumar Ramdas Patel and Anantkumar Babulal Patel died because of accidental injuries. Page 10 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025
NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 7.1 A question regarding holding driver of the car negligent to the extent of 20% is under challenge by the claimant. Learned Tribunal has considered oral as well as documentary evidence. The Panchnama which has been considered by the learned Tribunal indicates that both the vehicles were found negligent and responsible in the occurrence of accident. When sufficient material is available for determining the question of negligence, in absence of concrete evidence not to hold driver of the car negligent, non-examination of the driver of truck is of no much importance. Claimant has not led any evidence to substantiate his contention that the driver was driving car at a moderate speed at the time of accident and what step he took to avoid the accident. In absence of any convincing material, we are not inclined to interfere with the finding of negligence and therefore we confirm the negligence of the truck driver at 80% and negligence of car driver at 20%.
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NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 7.2 Ex.148 is a copy of licence issued by RTO. On perusal of same, it transpires that during the period of accident, the car driver was having a valid licence. It has been observed by the learned Tribunal that Ex.148 which is original record of RTO, indicates that there is an endorsement regarding renewal for the period from 04.03.2008 to 03.03.2011. Thus, merely because in the computerized record which is maintained by RTO by one reason or other, does not mention about the renewal of licence cannot lead to a conclusion that driver was not holding an effective licence. When the original record maintained by RTO is produced by the witness from RTO indicating that the licence was renewed, the contention of the learned advocate for the insurance company has rightly been rejected by the learned Tribunal. 7.3 The age of the deceased at the time of accident was 32 years. Following the proposition laid down in the Page 12 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025 NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017)16 SCC 680, 40% prospective rise in income is to be considered. Hence, total income comes to Rs.3,60,644/- (Rs.2,57,603 x 40% [Rs.1,03,041] + Rs.2,57,603/-) per annum and 1/4th is to be deducted towards personal expenses. Therefore, dependency loss per annum would come to Rs.2,70,483/- (Rs.3,60,644/- less ¼ [Rs.90,161] = Rs.2,70,483/-).
8. In view of this, the judgment and award is modified to the following extent.
Head Compensation
1 Annual income Rs. 2,57,603/-
Prospective income 40% Rs. 1,03,041/-
(Rs.2,57,603/- X 40/100)
Total annual income Rs. 3,60,644/-
(Rs.2,57,603/- + Rs.1,03,041/-)
2 Deduction of towards personal Rs. 2,70,483/- expenses.
1/4th.
(Rs.3,60,644/- -Rs,90,161/-).
3 Future loss of income Rs.43,27,728/- Page 13 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025
NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined (Rs.2,70,483/- X 16 ) 4 Loss of Consortium Rs. 2,42,000/- Spouse, minor son & daughter and parents + 20% = (Rs.48,400 x5) 5 Loss of estate and Funeral Rs. 36,300/- expenses 6 Grand Total Rs.46,06,028/-
7 Awarded amount of Rs.36,28,058/- compensation by Tribunal (80% of amount of Rs.45,35,072/-) 8 Enhanced amount Rs. 70,956/-
(Rs.46,06,028- Rs.45,35,072/-) 9 Net enhanced amount Rs. 56,764/-
(80% of Rs.70,956/-) 10 Interest @ 9%
9. For the reasons recorded above, following order is passed.
9.1 The appellant-original claimant/s are entitled to enhanced amount of compensation of Rs.56,764/- @ 9% interest per annum from the date of claim petition till realization from Insurance Company. Page 14 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025
NEUTRAL CITATION C/FA/4229/2019 JUDGMENT DATED: 23/01/2025 undefined 9.2 The Insurance Company is directed to deposit the enhanced amount of compensation with interest as above within a period of Four Weeks from the date of receipt of this order.
9.3 The present First Appeals are partly allowed. The impugned common judgment and award dated 21.04.2018 passed by the learned Motor Accident Claims Tribunal (Main), Mahesana, is modified to the aforesaid extent. Record and proceedings be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 15 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:46:40 IST 2025