Gujarat High Court

Legal Heirs Of Deceased ... vs Abhesinh Rupabhai Ghori on 14 December, 2022

Bench: Hemant M. Prachchhak

     C/FA/2443/2019                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2443 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
1     Whether Reporters of Local Papers may be allowed             No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        No

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
    LEGAL HEIRS OF DECEASED SUMITRABEN D/O MANABHAI RATHOD
                    MANABHAI VALABHAI RATHOD
                              Versus
                     ABHESINH RUPABHAI GHORI
==========================================================
Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 3.1,4
RULE UNSERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 3.2
==========================================================
    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 14/12/2022

                             ORAL JUDGMENT

1. This appeal is filed by the appellant-claimant seeking

enhancement of the compensation amount awarded by the learned

C/FA/2443/2019 JUDGMENT DATED: 14/12/2022

Motor Accident Claims Tribunal (Aux.) & 3rd Additional District

Judge, Dahod (hereinafter referred to as "the Tribunal") vide

impugned judgment and award dated 19.02.2018 passed in M.A.C.P.

No.1077 of 2004, whereby, the Tribunal has partly allowed the claim

petition and awarded compensation of Rs. 2,55,000/- out of that

opponent No.1 and 2 held liable to pay 70% amount i.e. Rs.

1,78,500/- and remaining 30% amount from the opponent No.3 and

4. i.e. Rs.76,500/-.

2. It came to be held by the Tribunal that said amount was

ordered to be awarded to the deponents. Feeling aggrieved and

dissatisfied with the impugned and award passed by the learned

Tribunal, this appeal has been filed.

3. Brief facts of the present case are that on 26.2.1994, at about

9.00 p.m., the deceased and other vegetable traders have hired one

Tempo No. GJ-17-T-4201 for loading their vegetable begs from

Fatepura to Limdi. The said tempo was drive by its driver in

moderate speed and on correct side. When the tempo was passing

from Tandi village one bullock cart was coming from opposite side

and one S.T.Bus No. GJ-01-T-9179 was behind the bullock cart. The

C/FA/2443/2019 JUDGMENT DATED: 14/12/2022

opponent No.1 -driver of the S.T.Bus has driven the S.T.Bus in rush

and negligent manner and with an excessive speed and tried to

overtake the bullock cart and came on wrong side and dashed with

the tempo resulting into deceased Sumitraben and other occupants of

S.T.Bus were sustained serious injuries and were died. The

complaint was filed before Limdi Police Station vide I-CR No. 23 of

1994. Hence, the appellant - original claimant has filed claim

petition before the Tribunal. The Tribunal, after evaluating the

pleadings and evidence tendered by the parties, partly allowed the

claim petition and awarded a sum of Rs. 2,55,000/- out of that

opponent No.1 and 2 held liable to pay 70% amount i.e.

Rs. 1,78,500/- and remaining 30% amount from the opponent No.3

and 4. i.e. Rs.76,500/- under the different heads as against the claim

of Rs.5,00,000/-.

4. Heard Mr. Makbul Mansuri, learned counsel appearing for the

appellant and Mrs.Vasavdatta Bhatt, learned counsel appearing for

the respondent - G.S.R.T.C.

5.     Mr. Makbul Mansuri,       learned counsel appearing for the

appellant has submitted     the learned Tribunal has not properly






      C/FA/2443/2019                            JUDGMENT DATED: 14/12/2022

considered the income of the deceased while determining the amount

of compensation. He has further submitted that learned tribunal has

not applied the proper multiplier. He has further contended that

learned Tribunal has overlooked the settled principle of law which is

reported in case of Kishan Gopal and another Vs/. Lal and others

reported in 2014(1) SCC 244 . He has further submitted that so far

as claimant is concerned, he is 3rd Party and therefore, they can

recover from any of the tortfeasors as the Tribunal has considered

the contributory negligency on the part of the offending vehicle

involved in the alleged accident, as per the decision of Hon'ble

Apex Court in case of Khenyel Vs. New India Assurance

Company Ltd. and others reported in (2015) 9 SCC 8273 and

other grounds enumerated in the memo of the appeal.

6. As against that Mrs. Vasavdatta Bhatt, learned counsel

appearing for respondent - G.S.R.T.C has strongly objected the

present appeal and submitted that the learned Tribunal has rightly

passed the impugned judgment and award and no interference is

required to be called for.

7. Having considered the averments made in the appeal,

C/FA/2443/2019 JUDGMENT DATED: 14/12/2022

submissions made by the learned counsel appearing for both the

sides and considering all these aspects, appellant has prayed before

this Court that the impugned judgment and award passed by the

learned Tribunal be modified to the extent that the impugned

award passed by the learned Tribunal is appropriately enhanced.

8. Having heard learned Counsels appearing for the respective

parties and considering all these aspects, I am of the opinion that

present appeal deserves to be allowed and the impugned judgement

and award is appropriately modified to the extent that the appellant

herein is entitled to get the enhanced compensation to the tune of Rs.

5,39,500/- in addition to the amount which is awarded by the learned

Tribunal i.e. Rs. 1,78,500/-. The facts to be noted that the learned

Tribunal has considered the contributory negligency at the rate of

70% on the part of S.T.Corporation and 30% on the part of tempo

involved in the alleged accident. So that S.T.Corporation has to

deposit the additional amount of compensation i.e. Rs.5,39,500/-

with 6% interest from the date of application and as per the

apportionment, appellant is entitle to recover 30% from the owner

of tempo by initiating appropriate proceedings against the tempo

C/FA/2443/2019 JUDGMENT DATED: 14/12/2022

driver and owner. So far as the present appellant is concerned, he

can recover from any of the tortfeasors, therefore, the said amount to

be deposited by the S.T,Corporation and same shall be recovered

from the tempo driver and owner. Hence, present appeal is allowed

in part and the impugned judgment and award requires to be

substituted by enhancing the amount of compensation and, therefore,

the compensation is enhanced under the following heads:-

             Heads                                                Rs.
             Rs.36000/- x 18 Multiplier -Loss of         6,48,000/-
             dependency
             Consortium                                    40,000/-
             Loss of Estate                                15,000/-
             Funeral Expenses                              15,000/-
             Total                                       7,28,000/-
             Awarded 70% compensation                    1,78,500/-
             Enhance amount of compensation              5,39,500/-
      Accordingly         a   sum    of     Rs.5,39,500/-/-     as      additional

compensation requires to be awarded and the same is awarded in

addition to Rs.1,78,500/- awarded by the Tribunal. However, the

appellant is entitled to get the enhanced amount of compensation of

Rs.5,39,500/- /- along with interest at the rate of 6% from the date of

application till its realization.

C/FA/2443/2019 JUDGMENT DATED: 14/12/2022

9. For the foregoing reasons, the appeal is allowed in part. The

judgment and award dated 19.2.2018 passed by the learned Motor

Accident Claims Tribunal (Aux.) & 3rd Additional District Judge,

Dahod is hereby modified and in addition to what has been awarded

by the Tribunal, a sum of Rs.5,39,500/- /- as additional amount with

interest at the rate of 6% per annum is awarded which shall be from