Chandrakantbhai @ Chandubhai ... vs Sipahi J Maheboobbhai
2021 Latest Caselaw 959 Guj

         C/FA/465/2011                                        JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.           465 of 2011

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

==========================================================

1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

==========================================================
                CHANDRAKANTBHAI @ CHANDUBHAI PATEL
                               Versus
                 SIPAHI J MAHEBOOBBHAI & 2 other(s)
==========================================================
Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 2
==========================================================

    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                            Date : 21/01/2021

                              ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 14.08.2007 passed by the Motor Accident Claims Tribunal (Aux), Ahmedabad District at Viramgam in MACP No. 46 of 2006, the original claimant has filed this appeal under

C/FA/465/2011 JUDGMENT

Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 That the appellant was travelling in the scooter bearing registration No. GJ­2J­4390 as pillion rider. The record indicates that while the scooter was passing through Udhroj to Vithlapur­Detroj road, at about 6.30 AM, one truck bearing registration no.GJ­1­UU 9910 came in full speed from the wrong side and the back side of the scooter dashed with the truck. The FIR was lodged with the jurisdictional police. The appellant­insured filed the present claim petition under Section 166 of the Act and claimed compensation of Rs. 10,00,000/­.

2.2 It was the case of the appellant­claimant that the appellant was aged 44 years on the date of the accident and had monthly income of Rs.6000/­ from his vocation of agriculture and animal husbandry. The claimant also relied upon the medical evidence and the Tribunal assessed the permanent disability of th body as a whole to the tune of 14% and applying multiplier of 12, awarded a sum of Rs. 1,51,200/­ as compensation under the head of future loss. Over and above the same, the Tribunal also awarded Rs. 18,000/­ towards

C/FA/465/2011 JUDGMENT

actual loss, Rs. 10,000/­ towards pain, shock and suffering and Rs. 86,677/­ towards medical expenses and Rs. 10,000/­ under the head of special diet and transportation and thus awarded total compensation of Rs. 2,76,200/­ and considering the manner in which the accident has occurred, the Tribunal came to the conclusion that both the drivers, i.e., driver of the scooter as well as truck, both were negligent and attributed 60% negligence on the part of the driver of the scooter in which the appellant was the pillion rider and thus awarded net compensation of Rs. 1,10,000/­ with interest at the rate of 7.5% p.a. from the date of filing of the claim petition till its realisation. Being aggrieved and dissatisfied with the aforesaid judgment and award, the original claimant has preferred this appeal.

3. Heard Ms. Amrita Ajmera, learned advocate for the appellant and Ms. Karuna Rehvar, learned advocate for the insurance company. Though served, no one appears for the other respondents.

4. Ms. Ajmera, learned advocate has taken this Court through the factual matrix as well as the evidence in form of FIR at exhibit 31. and panchnama at exhibit 32. Relying upon the said piece of evidence, Ms. Ajmera contended that the Tribunal has misread the evidence and has not

C/FA/465/2011 JUDGMENT

considered the manner in which the accident has occurred. Ms. Ajmera contended that scooter is a small vehicle in comparison to the heavy vehicle like truck and the damage which has occurred to the scooter which is indicated in the panchnama proves beyond doubt that the driver of the truck was solely negligent. Ms. Ajmera also further contended that the Tribunal has also erred in awarding multiplier of 12 as the age of the appellant­insured was 44 years on the date of the accident and therefore, the appropriate multiplier as per the judgement of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680 would be 14. Ms. Ajmera also further contended that the appellant had to undergo extensive medical treatment and had to admitted as indoor patient at Sterling Hospital in Ahmedabad and even though such evidence is on record, the Tribunal has awarded a meagre amount of Rs. 10,000/­ towards pain, shock and suffering which deserves to be enhanced. On the aforesaid grounds, Ms. Ajmera contended that the appeal be allowed and the impugned judgment and award be modified.

5. Per contra, Ms. Rahevar has opposed the appeal. Ms. Rahevar relying upon the panchnama at exhibit 32, contended that the Tribunal has rightly come to the conclusion that the driver of the scooter was more negligent than the driver of the truck and the contention raised by

C/FA/465/2011 JUDGMENT

the appellant that the driver of the truck was solely negligent is incorrect. According to Ms. Rahevar, the Tribunal having appreciated the evidence on record, has rightly come to the conclusion that the driver of the scooter was negligent to the extent of 60% and hence, the same does not require to be altered or modified by this Court. Ms. Rahevar also contended that the Tribunal has rightly calculated the compensation under the head of future loss of income as well as pain, shock and suffering and has awaarded just compensation, which does not require any enhancement in this appeal. It was contended by Ms. Rahevar that the appeal being meritless, deserves to be dismissed.

6. No other or further submissions have been made by the learned advocates for the respective parties.

7. I have perused the original record and proceedings.

8. Upon re­appreciation of the panchnama at exhibit 32 and considering the manner in which the accident has occurred, more particularly the fact that the damage was to the scooter and vital fact that the scooter was found to be dragged at the distance of 12 ft. indicates that the scooter got entangled in the portion behind the front tyre on the left hand side of the truck. The panchnama does not indicate that

C/FA/465/2011 JUDGMENT

either of the vehicle were on wrong side. However, the manner in which the accident has occurred, it can be ascertained that both the vehicles were at a speed more than necessary and their capacity. It clearly appears that the scooter dashed in the rear part of the front wheel on the left side and got stuck and got dragged for 12 ft. by the truck.

9. As the contention raised by Ms. Ajmera that the truck driver was solely liable cannot be culled out from the panchama at exhibit 32, which is the basis of the fact as to how the accident has occurred. It is no doubt true that the panchnama has been prepared after the accident. However, considering the condition of both the vehicles, as can be envisaged from the panchnama, the Tribunal has correctly come to the conclusion that driver of both the vehicles were negligent. However, the finding arrived at by the Tribunal that the scooterist was negligent to the extent of 60% is erroneous. Apart from the fact that the truck is a heavy vehicle, the panchnama clearly indicates that there was no damage caused to the truck. Whereas, the scooter got entangled and was dragged for about 12 ft., which indicates the manner in which the accident occurred and its impact on the scooter. Upon re­appreciation of the evidence in form of panchnama at exhibit 32, this Court is of the opinion that the drivers of both the vehicles, i.e., scooter and truck were negligent.

C/FA/465/2011 JUDGMENT

However, this Court is of the opinion that the driver of the truck was more negligent than the scooterist and hence, the negligence of the driver of the truck was to the tune of 70% and whereas the scooterist was negligent to the extent of 30%.

10. Ms. Ajmera rightly pointed out that as per the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), considering the fact that the appellant was 44 years old on the date of the accident, the appropriate multiplier would be 14 instead of 12. Having come to the aforesaid conclusion, the appellant would be entitled to compensation under the head of Future Loss of Income as under ­

14% of Rs.6,000/­ (income) = Rs. 840/­ X 12= 10,080/­ X 14 (multiplier) = Rs.1,41,120/­

11. Upon considering the evidence on record and more particularly the injury certificate at exhibit 24, 25 and 25 and permanent disability certificate issued by Doctor at exhibit 29, it clearly indicates that the appellant had to undergo extensive treatment and had to pass through agony and therefore the appellant would be entitled to an amount of Rs. 25,000/­ as compensation under the head of pain, shock and suffering. Having come to the aforesaid conclusion, the appellant would be entitled to total compensation as under ­

C/FA/465/2011 JUDGMENT

Future Loss of Income ­ Rs.1,41,120/­ Pain, shock and suffering ­ Rs. 25,000/­ Actual loss of income ­ Rs. 18,000/­ Medical expenses ­ Rs. 87,000/­ Special diet, attendant and transportation ­ Rs. 10,000/­ ­­­­­­­­­­­­­­ Total compensation Rs.2,81,120/­ ===============

12. As this Court has come to the conclusion that the driver of the scooter is negligent to the extent of 30%, such amount shall have to be deducted from the total compensation, which comes to Rs.84,336/­. Thus, the appellant would be entitled to an amount of 1,96,784/­. As the Tribunal has awarded Rs. 1,10,000/­, the appellant would be entitled to an additional amount of compensation of Rs.86,784/­ along with interest at the rate of 7.5% from the date of filing of the claim petition till its realisation.. The appeal is thus partly allowed. The impugned judgment and award stands modified to the aforesaid extent. The insurance company is directed to deposit the additional amount along with proportionate interest as awarded by this Court with the Tribunal within a period of three months from the date of the receipt of this judgment and order. Record and proceedings be transmitted back to the Tribunal forthwith.

(R.M.CHHAYA, J) BIJOY B. PILLAI