Gujarat High Court
Mahendrabhai Kanjibhai Vagadiya vs Govindbhai Chandubhai Godeshwar on 5 May, 2025
NEUTRAL CITATION
C/FA/3037/2012 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3037 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MAHENDRABHAI KANJIBHAI VAGADIYA
Versus
GOVINDBHAI CHANDUBHAI GODESHWAR & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 3
MR VIJAY H NANGESH(3981) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Tushar L. Sheth for the appellant, learned advocate Mr. Anal S. Shah for respondent No.3 and learned advocate Mr. Vijay H. Nangesh for respondent Nos.1 and 2. Perused the record.
2. The challenge in the present appeal is with regard to the judgment and award dated 16.12.2010 passed by learned Motor Accident Claims Tribunal (Aux), Gondal Camp at Jetpur in M.A.C.P. No.1 of 2003.
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NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined
3. The facts in brief of the case are as under:
* On 19.9.2002 at about 10.00 am, the claimant and his friend were going towards Jetpur from Ramod in a Fiat Car. When they reached near the place of accident, a truck bearing registration No.GJ-10T-9745 was parked without any side indicator or signal on the road, car dashed from behind. As a result of that, claimant sustained severe injuries.
* The claimant filed a claim petition claiming compensation of Rs.5,00,000/- u/S. 166 of the M.V. Act. Opponents were served with the notice of claim petition. Opponent Nos.1 and 2 appeared and filed Written Statement at Exh.20 while opponent No.3 - insurance company appeared and filed Written Statement at Exh.14 and denied its liability. Issues were framed. * Claimant examined himself at Exh.48 and produced documentary evidence such as FIR, RC Book, Panchnama, Driving license, Disability certificate of Dr. Hemang Page 2 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined Vasavda.
* After considering the evidence on record and considering the submissions, learned Tribunal found claimant negligent to the extent of 50% and the driver of the offending truck to the extent of 50%. Learned tribunal awarded compensation of Rs.65,500/- (Rs.1,31,000/- minus 50%) with interest @ 7.5 % p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award - the appellant - original claimant has filed this appeal.
4. Learned advocate for the appellant has submitted that learned tribunal has erred in holding negligent to the extent of 50%. As a matter of fact, claimant was not negligent in the occurrence of accident as the truck was parked on the roadside without any indicator or signal. Resultantly the claimant could not see the vehicle parked on the road. Resultantly, it dashed from behind. It is further contended that driver of the offending truck did Page 3 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined not enter into the witness box and therefore the case of the claimant vis-à-vis negligence is established. It is further submitted that in the oral deposition, claimant has specifically narrated the occurrence of accident. However, in absence of any specific cross-examination on the aspect of truck being parked without any indicator, learned Tribunal has erred in holding driver of the Fiat car - claimant negligent to the extent of 50%. It is further contended that while considering the total income, learned tribunal has failed to award compensation under the head of prospective rise. The compensation under the head of transportation, special diet and attendant charges is on a lesser side. It is further contended that burden is upon the insurance company to establish that the driver of the Fiat car was negligent and the driver of offending truck was not negligent. No other submissions are made except the above. He has relied upon the following decisions.
(a) Saudagarsing Chhajusing v.
Jashodaben reported in 1985(o) AIJ-GJ-
214365
&
(b) Archit Saini and another v.
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NEUTRAL CITATION
C/FA/3037/2012 JUDGMENT DATED: 05/05/2025
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Oriental Insurance Co. Ltd. reported in 2018(3) SCC 365
5. Per contra, learned counsel for the respondent -
insurance company has submitted that the judgment and award is just and reasonable. It is contended that the Panchnama, which is an important piece of evidence, has not been proved by the claimant though it is produced by claimant and the same is not exhibited. It is further submitted that the truck was parked on the roadside and the speed of the car could be such that the driver of the car did not see the truck parked in front of it. It is further contended that in the cross-examination of the claimant, specific questions are put to the claimant with regard to the width of the road and as per the say of the claimant, the road on which the accident took place is a single track road admeasuring about 15 to 20 feet in width. The FIR is filed against the driver of the Fiat car and subsequently, the charge sheet is also filed against the claimant. No other submissions are made except the above.
6. I have considered the submissions envisaged by the Page 5 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined learned advocates of the parties and also perused the Record and Proceedings.
7. It appears that the accident has occurred in the night at around 10.00 pm. The truck was parked on the roadside and the claimant could not see the truck parked on the roadside, resultantly dashed from behind. Undisputedly, the FIR is filed against the claimant and thereafter, the charge-sheet was also filed against the claimant. It is the case of claimant in the examination-in-chief that after the accident, claimant became unconscious and by taking the advantage of the physical condition of the claimant, the driver of the truck lodged FIR against him.
8. Be that as it may, the initial burden of proving negligence is always on the claimant. Once the burden is discharged, it would shift on the other side, i.e. the offending vehicle. It appears from the oral deposition as well as from other documentary evidence that the claimant is heavily relying upon the Panchnama of the place of accident. However, the same is not proved by the claimant. When the FIR and charge-sheet is filed against the claimant, Page 6 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined the material piece of evidence is Panchnama. When the claimant has failed to establish the contents of Panchnama, it was not possible for the learned tribunal to assess the exact situation and position of the two vehicles.
9. Even if the truck is parked on the roadside without an indicator, which is a violation of the provisions of the law, in absence of any other material, it cannot be said that the driver of the car was not negligent. The claimant has not stated at what speed the car was being driven at the relevant point of time. The claim petition of the deceased passengers was compromised in Lok Adalat and in that proceedings, present claimant was one of the parties. In the claim petition, of the deceased passenger, parties agreed to the apportionment of negligence. Even if the cognate claim petition and the admission on the aspect of negligence is brushed aside for a moment, even on assessing the evidence of the present case, except the bare statement of the claimant, there is no clinching evidence whereby the claimant can be exonerated from the liability which has been fastened upon by learned Page 7 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined Tribunal. The learned Tribunal had the occasion to consider evidence both; oral as well as documentary while deciding an issue of negligence. When learned tribunal has, after assessing such evidence, found driver of the Fiat car negligent to the extent of 50%, in absence of any contrary evidence, I am not inclined to interfere in such finding of fact.
10. However, so far as quantum is concerned, learned tribunal, while assessing the total income, has failed to consider prospective rise to the extent of 40% considering the age of claimant at 33 years. Adding 40% as prospective income, the income of deceased would be Rs. 81,200/- (Rs.58,000/- per year + 40%). Considering the injuries, it would be appropriate to enhance compensation under the head of transportation, special diet & attendant charges from Rs. 5,000/- to Rs. 10,000/-. Rest of the award under different heads are unaltered.
11. The decision of Saudagar Singh (Supra) is the case where the claimant had produced Panchnama and it was duly proved by claimant. In paragraph no. 7, there is a Page 8 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined discussion on this issue. While deciding the question of negligence, the Court had an opportunity to consider the width of the road as well as length of the vehicle and further it was noticed that the battery wires of the truck were hanging loose which would mean that lights of the vehicle could not have been kept on. It was an admitted fact that right front tyre of truck was in burst condition. Considering the aforesaid facts, the question of negligence was discussed and decided. In the present case, as observed hereinabove, the Panchnama of the place of accident which is the vital piece of evidence has not been established by claimant.
12. In the case of Archit Saini and another (Supra), Honorable Supreme Court was considering an issue of negligence. The facts revealed that an eyewitness of the accident was examined and the tanker was parked in the middle of the road without any indicator or parking lights. In the present case, the truck was parked on the side of the road. The claimant did not mention about his speed and there is no evidence on record with regard to the brake marks found on the place of accident whereby the Page 9 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined tribunal can decide the negligence against the driver of the truck.
13. In view of the above facts and circumstances, the claimant is entitled to following amount of compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Loss of Income
Yearly Income Rs.58,000
(Rs.58000 + 40% prospective
income = Rs.23,200)
Rs.58,000 + 23,200 =
Rs.81,200/-
Disability:
Rs.81,200 X 10% =
8,120/- X 17 Multiplier 1,38,040/-
2. Pain, Shock and Suffering 10,000/-
3. Medical Bills 6,900/-
4. Transportation, Special Diet 10,000/-
and Attendant
5. Actual Loss 4,800/-
Total Compensation 1,69,740/-
(-) Awarded Amount 65,500/-
Enhanced Amount 1,04,240/-
Interest 9%
14. Therefore, total amount of compensation would come to Rs.1,69,740/-, which is required to be awarded with 9% Page 10 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined p.a. interest from date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has already awarded Rs.65,500/- to the claimant, therefore, Rs.1,04,240/- (Rs.1,69,740 - Rs.65,500) is required to be enhanced with interest @ 9% p.a.
15. For the reasons recorded hereinabove, the following order is passed:
[A]. The present appeal is partly allowed accordingly in above terms.
[B]. The Insurance Company is directed to deposit the enhanced amount Rs.1,04,240/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
[C]. The Tribunal shall disburse the entire awarded amount lying in the FDR and / or with the Page 11 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu May 08 2025 Downloaded on : Fri May 09 00:46:16 IST 2025 NEUTRAL CITATION C/FA/3037/2012 JUDGMENT DATED: 05/05/2025 undefined Tribunal, with accrued interest thereon if any, to the claimant, by `Account Payee Cheque' / RTGS / NEFT', after proper verification and after following due procedure.
[D]. While making the payment, the Tribunal shall deduct the Courts fees, if not paid, in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
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