Chirag Dilipbhai Kothari vs Hemantlal Maneklal Radhanpura
2021 Latest Caselaw 18215 Guj

      C/FA/1776/2009                               ORDER DATED: 08/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1776 of 2009

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                     CHIRAG DILIPBHAI KOTHARI
                              Versus
             HEMANTLAL MANEKLAL RADHANPURA & 1 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                               Date : 08/12/2021

                                ORAL ORDER

1. This present appeal is filed by the insured at the instance of Insurance Company, challenging the impugned award passed by the Motor Accident Claim Tribunal (Auxiliary) Rajkot in Motor Accident Claim Petition No. 1989 of 2000 vide its judgment and award dated 25.07.2008.

2. The brief facts giving rise to the present appeal are as under:

2.1 The appellant was going on scooter bearing registration No. GJ-03-JJ-4639 and he met accident with scooter bearing registration No. GJ-07-6372 coming from opposite direction on his right side so he fell down and he was injured.

2.2 The appellant has filed Motor Accident Claim Petition No. 1989 of 2000 claiming compensation of Rs. 4,00,000/- against the driver and owner of scooter bearing registration No. GJ-07-6372

C/FA/1776/2009 ORDER DATED: 08/12/2021

3. Heard Mr. G.C. Mazmudar, learned advocate and Mr. H.G. Mazmudar, learned advocate appearing on behalf of the appellant, and Mr. Pankaj R. Desai, learned advocate appearing on behalf of the defendant, and perused the materials on record.

4. Learned advocate for the appellant submitted as under:

4.1 Tribunal erred by considering that the driver of the scooter bearing registration No.: GJ-7-6372 was rash and negligent without having such evidence on record on the contrary, there is evidence that the driver was not rash and negligent. He has further submitted that the Tribunal erred by considering future loss though there is no evidence about future loss, though there is evidence on the record that the injured was earning more subsequently.

4.2 He has further submitted that the Tribunal erred by not considering that the fault was more on side of driver/injured however, Tribunal erred by considering 90% negligence on the part of driver of scooter vehicle bearing registration No.: GJ-7-6372 wrongly and passed the award which requires to be set aside.

4.3 He has further submitted that the Tribunal did not consider that the claimant/injured had admitted that he could not control his vehicle and fell down which indicates that he was at fault and he could have avoided the accident however, Tribunal erred by considering his negligence only 10% and passed the award which requires to be set aside. He has further submitted that the Tribunal did not consider the aspect that there was no nexus between the injury and vocation of the claimant/injured.

       C/FA/1776/2009                            ORDER DATED: 08/12/2021



4.4    He has further submitted that the Tribunal did not consider

that the injured was not disable from earning point of view as such the award passed by Tribunal requires to be set aside. Tribunal erred by considering that the so-called injury was for a short period and the Injury was not so high whereby the injured can be considered to be disabled for earning purpose. He has further submitted that Tribunal erred by awarding loss on higher side and further giving Rs. 50,000/- again on ground of Future loss and granted compensation for pain, shock and suffering on higher side. Over and above without having evidence on record, the Tribunal awarded Rs 20,000/- for actual loss without having evidence for the same on the record. The Tribunal has awarded multiplier 16 on higher side with 9% interest.

4.5 He has further submitted that the Tribunal did not consider that both the vehicles were on opposite directions, over and above, scooter bearing registration No. GJ-7-6372 was on his right (left) side so, the driver of that vehicle can not be held responsible to the tune of 90% liability and it is on higher side. He has further submitted that the Tribunal ought to have considered that there was no negligence on the part of driver of vehicle bearing registration No. GJ-7-6372 and his liability should have been considered 10% instead of 90%. He has further submitted that the Tribunal did not consider that both the vehicles were of equal size and power and there was no slightest damage to both the vehicles in that circumstances, Tribunal ought not to have considered 90% liability on the part of driver of scooter bearing registration No. GJ- 7-6372. He has further submitted that the Tribunal did not consider the fact that the injured had seen the vehicle coming from the

C/FA/1776/2009 ORDER DATED: 08/12/2021

opposite direction and his speed, according to him, of 10 kms/hr in that circumstances, he could have avoided the so-called accident which in real sense was not the accident but slight touch as evidence on record so, the injured/claimant himself was at fault so he should have been held liable for the accident instead of the driver of vehicle bearing registration No. GJ-7-6372.

5. Learned advocate for the defendant-Insurance Company has prayed for dismissal of the present petition.

6. Having considered the averments made in the appeal, submissions made by learned counsel appearing on behalf of both the parties and perused the record and proceedings of the case, it appears that the present appeal is filed by the insurance company mainly on the two grounds i.e. quantum and negligency and the Tribunal has considered the quantum which is on higher side. Considering the documentary evidence on record more particularly the FIR and the panchnama of the scene of accident and the deposition of the insured, it appears that he has considered the negligency and the same is required to be increased. So far as the quantum is concerned, as per considering the decisions of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 1211 and National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680, the compensation awarded by the Tribunal is just and proper and no interference is required to be called for. So far as the negligency is concerned, considering the facts of the case and the panchnama of the scene of offence at Exhibit 32, the Tribunal has committed an error by considering 10% negligency on the part of the claimant, so it is required to be

C/FA/1776/2009 ORDER DATED: 08/12/2021

considered at 20% instead of 10%.

6. In view of the above, the appeal is allowed in part. The negligency considered by the Tribunal is substituted by 20% instead of 10% and the remaining part of the impugned award is unaltered. It is made clear that if the Insurance Company has deposited the excess amount after deducing 10% more from the original award in place of 10% earlier deducted so in all 20% is to be refunded to the Insurance Company by way of account payee cheque within two weeks from the date of receipt of the order. Rule is made absolute to the aforesaid extent. The decree be drawn accordingly.

(HEMANT M. PRACHCHHAK,J) T. J. Bharwad