Gujarat High Court
Suleman Ishak Jabha vs Somaram Keshaji Jaypal on 14 December, 2022
Bench: Biren Vaishnav
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3066 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 ?
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SULEMAN ISHAK JABHA
Versus
SOMARAM KESHAJI JAYPAL & 5 other(s)
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 4,5
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 14/12/2022
ORAL JUDGMENT
1. This appeal has been filed by the original
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
claimant in MACP Case No.1037 of 1996 on
being aggrieved by the order of the MAC
Tribunal, Panchmahals, Godhara, dated
19.09.2016.
2. Facts in brief would indicate that an accident
occurred on 18.07.1996 when the
claimant/appellant was traveling with his goods
for labour work in Tempo No.GJ-1 V-6921.
According to the claimant, the driver of the truck
No.GJ-16 T-3989 drove the vehicle in the rash
and negligent manner as a result of which the
head on collusion occurred. The Tribunal while
considering the case of the negligence
considering that it was a held on collusion, based
on an earlier MACP No.149 of 1997 in a
judgement it was delivered in that case on
26.06.2010 found that the negligence of both the
vehicles was 50% each.
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
3. It was the case of the claimant that for awarding
compensation, his income should be considered
at Rs.5000/-. The Tribunal considered his income
at Rs.1500/- and awarded compensation of
Rs.51,400/-.
4. Mr.Mansuri learned counsel for the appellant
would assail the award of the Tribunal that the
income should have been considered at Rs.5000/-
and not Rs.1500/-.
5. Ms.Nanavati learned advocate for Mr.Vibhuti
Nanavati learned counsel appearing for the
respondent no.6 - Insurance Company and
Mr.G.C.Mazmudar learned counsel appearing for
the respondent No.3-United India Insurance
Company would submit that in absence of any
evidence as observed by the Tribunal that the
claimant has not produced any document to point
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
out that he was earning Rs.5,000/-, the
assessment of income at Rs.1500/- is just and
proper.
6. The parties would invite the Court's attention to
the decision of the Supreme Court in case of
Khenyei v. New India Assurance Co. Ltd.
Reported in 2015 (9) SCC 273, where, in light
of the fact that the claimant was a co-passenger
in a goods vehicle, it would be composite
negligence vis-a-vis the claimant. Further,
inviting the Court's attention to para 8 of the
order of the Tribunal though the Tribunal
observed that in light of the policy that the
vehicle was used for higherer reward in contrary
to the policy and the Tribunal has awarded
compensation to the extent of 50% of the liability
to be recovered from the opponent nos.1 and 2
only, what is evident from reading the decision in
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
case of Khenyei (supra), especially para 22(iii)
thereof reads as under:
"...
(iii) In case all the joint tort feasors have
been impleaded and evidence is sufficient, it
is open to the court/tribunal to determine
inter se extent of composite negligence of
the drivers. However, determination of the
extent of negligence between the joint tort
feasors is only for the purpose of their inter
se liability so that one may recover the sum
from the other after making whole of
payment to the plaintiff/claimant to the
extent it has satisfied the liability of the
other. In case both of them have been
impleaded and the apportionment/ extent of
their negligence has been determined by
the court/tribunal, in main case one joint
tort feasor can recover the amount from the
other in the execution proceedings."
7. From the above, what is evident is that the order
of the tribunal can be modified to the effect that
the claimant can recover the amount of
compensation so awarded by the Tribunal from
the respondent No.6-Insurance Company, as
determined by the Tribunal and it will be open
for the respondent company to recover 50% of
C/FA/3066/2017 JUDGMENT DATED: 14/12/2022
the amount from the respondent nos.1 and 2 in
the execution proceedings. The order of the
Tribunal is otherwise maintained except the
modification as aforesaid.
8. The appeal is partly allowed. The amount so
awarded as per the award of the Tribunal and as
per this order, be deposited before the Tribunal
by the respondent no.6 company within a period
of eight weeks from the date of receipt of this
order.
9. Further after the amount is so deposited, the
Tribunal shall disburse the same to the appellant
through RTGS after proper verification. No order
as to costs. R & P, if lying with this Court, to be
sent back forthwith.
(BIREN VAISHNAV, J)
ANKIT SHAH
