Gujarat High Court
Rameshchandra Amrutlal Tripathi ... vs Budhabhai Devjibhai Matang on 15 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1982 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed to see
1 NO
the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy of the
3 NO
judgment ?
Whether this case involves a substantial question of law as
4 to the interpretation of the Constitution of India or any NO
order made thereunder ?
======================================================
RAMESHCHANDRA AMRUTLAL TRIPATHI (TRIVEDI)
Versus
BUDHABHAI DEVJIBHAI MATANG
======================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
======================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/12/2022
ORAL JUDGMENT
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
(MV Act) filed at the instance of the appellant - original claimant against
the judgment and award dated 19.12.2018 passed by the learned Motor
Accident Claims Tribunal (Auxiliary), Bhuj - Kachchh (Tribunal) in Motor
Accident Claim Petition No. 318 of 2012 (claim petition), which was
preferred under Section 166 of the MV Act, whereby, against a claim valued
at Rs.6 lakh for the injuries sustained in an accident which had occurred on
28.05.2012, the Tribunal has awarded a sum of Rs.1,10,500/- with simple
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. Since, the facts of the accidents are not in dispute, the same are not
detailed here.
3. Heard, learned advocate Mr. Nishit Bhalodi for the appellant -
original claimant and learned advocate Mr. Tanmay B. Karia for the
respondent No. 3 - insurance company. The rest are though served, none
appears for them.
3.1 The gist of the arguments of the learned advocate for the appellant is
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
that though the appellant - claimant earning Rs.4,000/- per month by doing
labour work in a shop named as Krishna Wooden, the Tribunal has not
considered such amount towards income of the appellant while computing
the compensation and thereby, the Tribunal has materially erred in
considering the income of the claimant and has further erred in considering
Rs.3,000/- per month as the income of the appellant - claimant. Further, it
is submitted that the Tribunal has also erred in awarding actual loss of
income for two months only and in fact, it was required to be considered for
six months.
3.2 The learned advocate for the appellant further submitted that the
Tribunal has further materially erred in considering 50% contributory
negligence on the part of the appellant - original claimant. He submitted
that though neither the driver nor the owner of the offending truck was
examined, only on the basis of the panchnama of place of incident, Exh. 31,
the Tribunal has come to such a conclusion, which is erroneous. In this
regard, referring the judgment and order of the Division Bench of this Court
dated 08.09.2016 rendered in First Appeal No. 3485 of 2014, he submitted
that in the identical situation, the Division Bench discarded the finding of
the Tribunal holding contributory negligence of the claimant therein.
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
3.3 Further, it is submitted that under the heads of Pain, Shock and
Suffering, Special Diet, Attendant Charges and Transportation Charges also,
the Tribunal has awarded meagre amounts. Accordingly, it is urged that this
Court may allow this appeal considering the said aspects of the matter and
thereby, enhance the award suitably.
4. As against this, the learned advocate for the respondent No. 3 -
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, no interference is required at the hands of this
Court. It is submitted that the Tribunal, considering the fact that the incident
had occurred in the year 2012 and the claimant was doing the labour work,
has rightly considered the income of the claimant - appellant at Rs.3,000/-
per month. Further, it is submitted that the amount awarded under different
heads are also rightly awarded by the Tribunal and accordingly, he
requested that this appeal being bereft of any merits, deserves to be
dismissed.
5. 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 appellant - claimant was doing labour work in a shop namely Krishna
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
Wooden at the relevant point of time and thereby, was earning Rs.4,000/-
per month. However, admittedly, no evidence, much less a documentary
evidence has been produced on record regarding the proof of income of the
appellant - claimant. However, if the minimum wage for the relevant year
is considered, the amount of income, as claimed by the appellant - claimant
of Rs.4,000/- may come less than the minimum wages for the extant year
and accordingly, the income of the appellant - claimant is required to be
considered as suggested and accordingly, in the considered opinion of the
Court, the Tribunal has erred in considering the income of the petitioner -
claimant.
5.1 So far as the negligence is concerned, the Tribunal has considered
50% contributory negligence of the appellant, however, indisputably, neither
the driver nor the owner of the offending vehicle has been examined and
only on the basis of panchnama of place of incident, Exh. 31, the Tribunal
has come to such a conclusion. Further, no detailed reasoning has been
assigned by the Tribunal for coming to such a conclusion, more particularly,
while fastening 50% contributory negligence on the part of the appellant -
claimant, which, in the considered opinion of the Court is erroneous one,
more particularly when there is no evidence manifestly suggesting the
negligence on the part of the appellant and/or when there is no evidence to
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
suggest so, save and except the panchnama of place of incident. In this
regard, if the decision of the Division Bench of this Court (supra) is referred
to, the Court has observed as under:
"[5.1].....At this stage it is required to be noted that the original
opponent No.1 - driver of the rickshaw chhakda did not step into the
witness box. Therefore, he did not explain the manner in which the
accident took place. He was the best person to explain the manner in
which the accident had taken place. Under the circumstances, the
learned Tribunal ought to have drawn the adverse inference and
ought to have held the original opponent No. 1 - driver of the
motorcycle negligent. Under the circumstances, finding recorded by
the learned Tribunal holding the deceased motorcyclist contributory
negligent to the extent of 30% cannnot be sustained and original
opponent No. 1 - driver of the rickshaw chhakda can be said to be
sole negligent for the accident."
5.2 Accordingly, in the opinion of this Court, in the given facts and
circumstances, it would be in the fitness of things if the driver of the
offending is considered and held liable 100% for the incident in question
sans any evidence to show otherwise.
5.3 Further, the amounts awarded under different heads are also required
to be enhanced suitably as being trivial some. Therefore, this appeal, is
required to be allowed to that extent and the impugned judgment and award
is required to be modified accordingly.
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
6. 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 1,45,080/- 2,41,800/-
(Rs.4,000+25%=Rs.5,0
00x31%=1,550x12x13)
Pain, Shock & Suffering 10,000/- 75,000/-
Special Diet, Attendant 5,000/- 25,000/-
& Transportation
Medical Expenses 55,000/- 55,000/-
Actual loss of income 6,000/- 24,000/-
(Rs.4,000x6)
Total 2,21,080/- 4,20,800/-
r/o. 2,21,000/-
Minus 50%Negligence 1,10,500/-
Award 1,10,500/- 4,20,800/-
Different Amt. 3,10,300/-
6.1 The difference amount shall be deposited within a period of 08 (eight)
weeks.
6.2 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.
C/FA/1982/2019 JUDGMENT DATED: 15/12/2022
6.3 The rest of the impugned judgment and award is not disturbed.
6.4 R&P, if received, be sent back forthwith.
[ A. C. Joshi, J. ]
hiren
