Rajnikant Somabhai Parmar vs Somabhai Kabhaibhai Parmar
2022 Latest Caselaw 10110 Guj

     C/FA/2515/2018                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2515 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                      Sd/-
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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 ?


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                      RAJNIKANT SOMABHAI PARMAR
                                 Versus
                  SOMABHAI KABHAIBHAI PARMAR & 1 other(s)
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 14/12/2022

                             ORAL JUDGMENT

1. The claimant is in appeal against the judgment and award dated 7th November 2015 passed by the Motor Accident Claims Tribunal (Auxi), Nadiad, in MACP No.1 of 2008.

C/FA/2515/2018 JUDGMENT DATED: 14/12/2022

2. The appellant is claiming a compensation to the extent of )2 lakh under different heads for the accidental injuries received by him in an accident which took place on 10 th November 2007. The Tribunal has awarded compensation to the tune of )1,45,000/- under different heads considering the injuries sustained by the appellant.

3. Learned advocate for the appellant submitted that the Tribunal has committed an error in awarding the compensation amount by disregarding the evidence on record. The Tribunal has passed the order contrary to the settled principles and propositions of law. Learned advocate further submitted that the Tribunal has erred in exonerating the insurance company from the liability to pay the compensation amount.

4. Learned advocate for the appellant submitted that the Tribunal has erred in considering the monthly income of the claimant at )2,500/-only. The Tribunal has also erred in considering the disability at 25% body as a whole. Moreover, the Tribunal has manifestly erred in adopting the multiplier of 16 considering the age of the claimant. It is also claimed that an error is committed by the Tribunal in awarding compensation under different heads viz. future economic loss, medical expenses, special diet, attendant & transportation, actual loss of income, pain, shock & suffering by considering the quantum on the lower side.

C/FA/2515/2018 JUDGMENT DATED: 14/12/2022

5. Learned advocate Mr.Shelat appearing for the Insurance Company has opposed the appeal submitting that no interference is required as the Tribunal has applied the settled principles of law under all the heads for which the compensation has been granted. However, he has candidly submitted that with regard to the liability, the Insurance Company was exonerated by considering the claimant being the driver of the offending vehicle which, perhaps, is not correctly recorded.

6. Having considered the rival submissions of the parties and having perused the documents on record, it is the case where the claimant who was occupying an auto-rickshaw bearing registration no.GJ-7-TT-583 and the accident occurred on account of the excessive speed at which the vehicle was being driven along with the claimant. The passengers in the rickshaw received several injuries, for which, the claim was filed.

7. Insofar as the role of the Insurance Company is concerned, the company was exonerated of its liability on the ground that the accident was occurred on account of the negligence of the driver of the vehicle and, therefore, the claimant being the driver of the vehicle, who was negligent, the Insurance Company came to be exonerated.

8. At this stage, it would be appropriate to refer to the evidence on record in the form of FIR (Exh.25) as well as other evidence being a copy of the examination-in-chief (Exh.21). It is

C/FA/2515/2018 JUDGMENT DATED: 14/12/2022

evident that the claimant himself was not driving the offending vehicle but was only the passenger in the offending vehicle and, therefore, on this factual error, the respondent - Insurance Company has been exonerated of its liability.

9. The Court, having considered both the evidence in the form of Exh.25 and Exh.21, arrived at the conclusion that the Tribunal has committed an error in holding the claimant to be the driver of the offending vehicle whereas, in fact, the claimant was only the passenger in the offending vehicle and, therefore, the respondent - Insurance Company was erroneously exonerated of its liability to pay the compensation.

10. In view of the aforesaid, the impugned award dated 7th November 2015 passed by the Motor Accident Claims Tribunal (Auxi), Nadiad, in MACP No.1 of 2008 is required to be modified to the extent of holding both the respondents nos.1 and 2 to be jointly and severally liable to pay compensation to the claimant.

11. With the aforesaid observations, the Appeal stands partly allowed.

(A.Y. KOGJE, J.) /MOINUDDIN