Kashmiraben Alias Rinku ... vs Bharatbhai Bhanushankarbhai ...
2021 Latest Caselaw 18469 Guj

      C/FA/340/2020                                     ORDER DATED: 16/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 340 of 2020
==========================================================
           KASHMIRABEN ALIAS RINKU JAYESHBHAI UPADYAY
                              Versus
             BHARATBHAI BHANUSHANKARBHAI UPADYAY
==========================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 5
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE NOT RECD BACK(63) for the Defendant(s) No. 6
RULE UNSERVED(68) for the Defendant(s) No. 3,4
==========================================================
 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                  Date : 16/12/2021
                   ORAL ORDER

1. Heard learned advocate Mr.Paresh M. Darji for the appellants, learned advocate Mr.Hiren M. Modi for respondent Nos.1 and 2 and learned advocate Mr.Rathin P. Raval for respondent No.5.

2. The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V. Act" for short) by the present appellants - original claimant Nos.1 and 2 challenging the judgment and award dated 11.04.2019 passed by the Motor Accident Claims Tribunal (Aux.), Bhanvagar in MACP No.632 of 2011 to limited extent.

3. The brief facts leading to the filing of the present appeal are as under:

3.1 The present appellants as well as present respondent Nos.1 and 2 jointly filed MACP No.632 of

C/FA/340/2020 ORDER DATED: 16/12/2021

2011 before the Claims Tribunal. It is the case of the original claimants that on 11.09.2011 at 12:40 AM, deceased Jayeshbhai, his maternal brother Rajubhai, Sharadbhai and his friend Tulsibhai went to Mahakleshwar at Ujjain in Maruti Car bearing registration No.DD-03-A-2852. On returning from the said place, the aforesaid car was being driven by deceased Jayeshbhai with moderate speed and on correct side of the road. When they reached at the place of accident from Badnavar to Badnagar road, near Dholana Village, Madhya Pradesh, respondent No.3

- driver of the vehicle Eicher came from opposite direction by driving his Eicher bearing registration No.GJ-1-BV-2892 in a rash and negligent manner and in full speed and, thereafter, he lost control over the steering and the said vehicle dashed with the Maruti car, in which, the deceased and others were travelling. As a result of the said accident, deceased Jayeshbhai sustained injuries and died on the spot. The original claimants therefore filed the aforesaid claim petition.

3.2 Upon issuance of the notice, the respondent Insurance Company filed written statement at Exh.16. The parties led documentary as well as oral evidence before the Claims Tribunal. The Claims Tribunal by way of the judgment and award dated 11.04.2019 held original opponent Nos.1 to 3 jointly and severally liable to pay compensation and compensation of Rs.29,05,000/- was awarded to the original claimants. While awarding the aforesaid amount of compensation,

C/FA/340/2020 ORDER DATED: 16/12/2021

the Claims Tribunal observed that all the applicants/ claimants shall get equal amount.

4. The present appellants - widow and minor son of deceased Jayeshbhai, therefore, have filed present appeal on limited ground that the Tribunal ought to have awarded compensation to the tune of 70% to the present appellants and 30% to present respondent Nos.1 and 2 as they are the parents of the deceased. Learned advocate Mr.Darji appearing for the appellants has placed reliance upon the order dated 27.02.2019 passed by this Court in Special Civil Application No.5436 of 2018 and submitted that in similar type of case, this Court has awarded 70% share to the widow and the minor of the deceased whereas 30% of the amount was given to the parents of the deceased. It is, therefore, urged that the aforesaid judgment and award be modified to the aforesaid extent.

5. On the other hand, learned advocate Mr.Modi appearing for respondent Nos.1 and 2 - parents of the deceased objected to the submissions canvassed by the learned advocate for the appellants. It is submitted that in the facts of the present case, the Claims Tribunal has not committed any error while awarding equal amount of compensation to all the claimants. It is, therefore, urged that this appeal be dismissed.

6. Having heard learned advocates appearing for the parties and having gone through the material placed

C/FA/340/2020 ORDER DATED: 16/12/2021

on record, it transpires that the Claims Tribunal awarded total amount of Rs.29,05,000/- by way of compensation to the original claimants including present appellants herein. However, while granting such compensation, it has been observed that all the claimants shall get equal amount. It is not in dispute that respondent Nos.1 and 2 are the parents of the deceased whereas appellant No.1 is the widow of the deceased and appellant No.2 is the minor son of the deceased.

7. In similar type of case, this Court has passed an order on 27.02.2019 in the case of Udesinh Madhavsinh Jadav Vs. Diptiben Yogeshbhai Jadav and has observed as under:

"....The share of the compensation awarded by the tribunal would certainly more and will distribute to her as she has to meet with expenses of her minor daughter, but the fact that the petitioners, being the parents of the deceased aged about 72 years and 68 years respectively as averred by the petitioners and particularly, the petitioner no.2 is suffering from the ailments cannot be ignored by the tribunal. As per the view of this Court, petitioners shall be entitled to claim their share at 30% and remaining share of 70% would come to the share of respondents no.1 and 2. The tribunal has passed the order distributing 15% share to the petitioners and rest of 85% share to the respondents no.1 and 2, which requires to be modified."

8. Keeping in view the aforesaid observation made by this Court in similar matter, if the facts of the

C/FA/340/2020 ORDER DATED: 16/12/2021

present case are seen, this Court is of the view that the present appellants are entitled to share of 70% whereas respondent Nos.1 and 2 would get share of 30% of the compensation awarded by the Claims Tribunal. Thus, the present appellants are entitled to get 35% share each (total 70%) whereas respondent Nos.1 and 2 are entitled to get 15% share each (total 30%).

9. In view of the aforesaid discussion, the judgment and award dated 11.04.2019 passed by the Motor Accident Claims Tribunal (Aux.), Bhanvagar in MACP No.632 of 2011 is modified to the aforesaid extent only.

10. Accordingly, the present appeal is partly- allowed. No order as to costs.

(VIPUL M. PANCHOLI, J) piyush