Gujarat High Court
Kartikey Krishnakantbhai Parikh vs Dashrathbhai Pashabhai Rawal on 15 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/2443/2018 JUDGMENT DATED: 15/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2443 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
==========================================================
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 ?
==========================================================
KARTIKEY KRISHNAKANTBHAI PARIKH
Versus
DASHRATHBHAI PASHABHAI RAWAL & 1 other(s)
==========================================================
Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/12/2022
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original claimants
under Section 173(1) of the Motor Vehicles Act, 1988, (for short 'M V
Act') against the judgment and award dated 09.04.2018 passed in
Motor Accident Claim Petition No. 895 of 2011 by the Motor Accident
C/FA/2443/2018 JUDGMENT DATED: 15/12/2022
Claims Tribunal (Auxi.) Mahesana, which was preferred under
Section 166 of the MV Act, whereby, against a claim valued at Rs.10
lakh for the injuries sustained in an accident that had occurred on
15.10.2011 the Tribunal has awarded a sum of Rs.3,81,600/- with
interest at the rate of 9% per annum from the date of claim petition
till realization, holding liable the opponents therein to pay the
compensation to the appellant - original claimant. Hence, grieved
claimant has filed this appeal on the point of quantum.
2. The brief facts of the case are that on 15.10.2011 at about
8:30 hours, the claimant was driving his motor-cycle bearing
registration No. GJ-01-MK-7676 on the correct side of the road with
moderate speed and when he reached at the spot of incident, the
opponent No. 1 came with his rickshaw bearing registration No. GJ-
02-TT- 6453 in a rash and negligent manner with excessive speed
and dashed with the claimant's Motor-cycle and as result of this
accident, the claimant received serious injuries.
3. Though served, the respondent No. 1 has put in no
appearance and accordingly, the Court proceeded with the final
hearing of the matter. Heard, learned advocate Mr. Amit N. Patel for
the appellant and learned advocate Mr. Tanmay B. Karia for the
respondent No. 2 - insurance company.
4. The learned advocate Mr. Amit N. Patel for the appellant -,
C/FA/2443/2018 JUDGMENT DATED: 15/12/2022
claimant submitted that the learned tribunal has falsely
appreciated the evidence as head on collision and awarded 60%
negligency on the part of the claimant, who was on motor- cycle on
the right side of the road. He further submitted that the it appears
from the Panchanama, depositions, there is 90% negligent is to be
attributed to the Rickshaw driver and only 10 % of the rider of the
motorcycle. He submitted that the amount of award will be
increased by 1,90,800/- if 90% negligency on the part of the
rickshaw may be considered. He also prayed to enhance the
awarded amount of the Tribunal.
5. Per contra, this, the learned advocate Mr. Tanmay Karia for
the respondent No. 2 - insurance company, while heavily opposing
this appeal and supporting the impugned judgment and award,
submitted that the impugned judgment and award being just and
proper in considering the percentage of the negligency and
therefore, no interference is required at the hands of this Court. He
further submitted that as per the dictum of the Hon'ble Apex Court,
6% interest is required to be given on the amount from the date of
claim petition till realization.
6. Regard being had to the submissions made and considering
the averments made in the appeal as well as a perusal of the record
reveal that the rickshaw is responsible for head on collision. If the
rickshaw driver would have taken slight care, in comparison of the
C/FA/2443/2018 JUDGMENT DATED: 15/12/2022
rider of the motorcycle, this accident could have been avoided. In
the opinion of this Court, the negligency of the rickshaw driver is
90% and 10% of the rider of motorcycle - claimant. Therefore, this
appeal, is required to be allowed to that extent and the impugned
judgment and award is required to be modified accordingly.
7. In the aforesaid backdrop, this appeal succeeds and is allowed
accordingly. The impugned judgment and award is modified to the
aforesaid extent and it is held that the appellant - claimant shall be
entitled for the following towards compensation:
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Future loss of income 3,96,000/- 3,96,000/-
Pain, Shock & Suffering 20,000/- 20,000/-
Actual loss of income 50,000/- 50,000/-
Special Diet, Attendant, 10,000/-+10,000/- 10,000/-+10,000/-
Transportation +10,000/- +10,000/-
Medical Expenses 1,40,000/- 1,40,000/-
Discomfort,
inconvenience to
parents
Total 6,36,000/- 6,36,000/-
Negligence deduction 6,36,000 * 40% = 6,36,000 * 10%=
2,54,400/- 63,600/-
Awarded Amount 5,72,400/-
Different Amt. 5,72,400 - 3,81,600
=1,90,800/-
7.1 The difference amount shall be deposited within a period of 08
(eight) weeks.
C/FA/2443/2018 JUDGMENT DATED: 15/12/2022
7.2 This court is agreed with the arguments of learned advocate
Mr. Karia for the Respondent No.2. The appellant - claimant shall be
entitled to interest at the rate of 6% per annum on such enhanced
amount of compensation, from the date of petition till realization.
7.3 The rest of the impugned judgment and award is not
disturbed.
7.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J)
prk
