Dhirubhai Mangabhai Patel vs Ashokbhai Bahadurbhai Bhoya
2022 Latest Caselaw 1010 Guj

    C/FA/583/2010                             JUDGMENT DATED: 01/02/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 583 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==================================================

1   Whether Reporters of Local Papers may be                        NO
    allowed to see the judgment ?

2   To be referred to the Reporter or not ?                         NO

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

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

==================================================
            DHIRUBHAI MANGABHAI PATEL
                         Versus
      ASHOKBHAI BAHADURBHAI BHOYA & 2 other(s)
==================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR SHALIN N MEHTA(2010) for the Defendant(s) No. 3
MR ZUBIN F BHARDA(159) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
==================================================
 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE NIRAL R. MEHTA



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       C/FA/583/2010                         JUDGMENT DATED: 01/02/2022



                        Date : 01/02/2022
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1) Feeling aggrieved and dissatisfied by the judgment and

award dated 30.07.2009 passed by Motor Accident Claims

Tribunal (Aux.) & Additional District Judge, Navsari in Motor

Accident Claim Petition No. 13 of 2006, the original claimant

has preferred this first appeal under Section 173 of the Motor

Vehicles Act, 1988.

2) The following facts emerge from the record of the

appeal:-

2.1 That the accident took place on 23.12.2005 at about

02:00 pm at village Rumala. It is the case of the claimant that

deceased Dhanuben was driving "Scooty" bearing registration

No. GJ-1-F-6366 on left side i.e. correct side at a moderate

speed and at that juncture, Bajaj Three vehicular tempo

bearing registration No.GJ-21-T-3341 being driven in rash and

negligent manner and at an excessive speed, tried to overtake

the Scooty, because of which the accident occurred. The

C/FA/583/2010 JUDGMENT DATED: 01/02/2022

deceased Dhanuben was thrown away and sustained grievous

serious injuries. As the record unfolds the deceased Dhanuben

was first taken to Valsad Kasturba Hospital for treatment and

thereafter was shifted to Surat Adventist Hospital and died on

02.01.2006. An FIR was lodged with Chikhli Police Station and

the present claim petition was filed under Section 166 of the

Act and claimed compensation of Rs.20,00,000/- (Twenty

Lakhs).

2.2 It was the case of claimant that the deceased was driving

Scooty in accordance with the rules and the accident occurred

solely because of the negligence of tempo driver.

2.3 The appellant was examined at exhibit 31 and the

claimant also relied upon documentary evidence as under:

      Sr. No.              Particulars                      Exhibit





         6                 R.C.Book                         40 & 41









       C/FA/583/2010                        JUDGMENT DATED: 01/02/2022



2.4     The Tribunal after appreciating the FIR at exhibit 34,

panchnama at Exhibit     35 and the charge sheet at exhibit 38

came to the conclusion that accident occurred because of the

sole negligence of the driver of the tempo. The Tribunal based

upon the original record and evidence adduced by the claimant

came to the conclusion that the monthly income of the

deceased was Rs. 11,783/- pm and after giving 30% rise as

prospective income and after deducting 60% towards personal

expenses, considered dependency loss per year at Rs.75,504/-

and applying multiplier of 10, also awarded further amount of

Rs.55,510/- as medical expenses, Rs.15,000/- towards pain,

shock and sufferings, Rs.7500/- towards loss of estate and

awarded a sum of Rs.20,000/- under conventional heads and

thus, awarded total compensation of Rs.8,45,500/-. However,

considering the liability issue, the Tribunal considered the fact

that Insurer /Tempo deserves to be exonerated i.e. Insurance

Company on the ground that the driver of tempo was holding

the license to drive light motor vehicle i.e. non-transport, but,

in fact, on the date of accident, the driver was driving

transport vehicle without there being any endorsement to the

C/FA/583/2010 JUDGMENT DATED: 01/02/2022

said effect and thus it was contended by the Insurance

Company that the driver of the tempo involved in accident

have invalid driving license and on that basis exonerated the

Insurance Company.

3) Feeling aggrieved by the same, the present appeal is

filed.

4) Heard Mr. Maulik Shelat, learned advocate appearing for

the appellant and Mr. Shalin Mehta, learned Senior Counsel

Assisted by Ms. Shikha Panchal, learned advocate appearing

Insurance Company and Mr. Pinakin Raval, learned advocate

appearing for defendant No.2.

5) Various contentions have been raised in the appeal and

more particularly relying upon the decision of the Apex Court

in the case of Mukund Dewangan vs. Oriental Insurance Co.

Ltd., reported in AIR 2017 SC 3668, National Insurance Co.

Ltd. vs. Swaran Singh & Ors. reported in 2004 (3) SCC 297,

Pappuu And Others vs Vinod Kumar Lamba And Another,

reported in 2018 (3) SCC 308, it was contended by Mr. Shelat

that the deceased was a third party and as per the judgment

C/FA/583/2010 JUDGMENT DATED: 01/02/2022

of Mukumd Dewangan (Supra), the judgments relied upon by

the Tribunal to exonerate the Insurance Company are

overruled. The said fact is not even disputed by Mr. Mehta,

learned Senior Counsel appearing for Insurance Company.

6) This Court could have dealt with the appeal strictly on

merits and on calculation of the same, following the judgments

in the case of Mukund Dewangan, Sarla Verma vs. Delhi

Transportation Corporation, reported in 2009(6)SCC 121 and

National Insurance Company Limited v. Pranay Sethi, reported

in 2017(16) SCC 680, the appellant would be entitled

Rs.18,56,126/- as total compensation i.e. appellant would be

entitled for additional compensation of Rs.10,10,576/- with

interest at the rate of 9 % per annum as granted by the

Tribunal from the date of filing of claim petition till its

realization. However, it is pointed out jointly by Mr. Shelat,

learned advocate appearing for the appellant as well as Mr.

Mehta, learned Senior Counsel appearing for the Insurance

Company that the appellant and the Insurance Company have

settled the matter for an amount of Rs.28,75,000/-, which

would be full and final settlement including total

C/FA/583/2010 JUDGMENT DATED: 01/02/2022

compensation, proportionate cost and interest as total amount

to be paid by the Insurance Company.

7) Mr. Shelat, learned advocate appearing for the appellant

says that the said amount would be accepted as total

compensation including proportionate cost and interest to

which the appellant is entitled to. Mr. Mehta, learned Senior

Counsel appearing for the Insurance Company submits that a

pursis was required to be filed, however due to unavoidable

circumstances, the same could not be filed, however, it was

pointed out that as the amount which is really due and

payable as compensation would be much higher than the

amount of Rs.28,75,000/- as settled for full and final

settlement as observed in this order, the appeal be disposed of

accordingly.

8) Considering such peculiar facts arising out of this appeal,

the impugned judgment and award is modified and it is held

that the appellant would be entitled to total compensation

including proportionate cost and interest amount, which is

quantified at Rs.28,75,000/- as settled by the appellant and the

Insurance Company. The Insurance Company shall deposit such

C/FA/583/2010 JUDGMENT DATED: 01/02/2022

amount which would include the total compensation,

proportionate cost and interest before the Tribunal as

expeditiously as possible preferably within 8 weeks from the

date of receipt of the order of this Court. As this order is

passed on the broad consensus arrived at between the

concerned parties, i.e. the appellant and the Insurance

Company, liberty is reserved to any of the parties to revive

this appeal to be heard on merits.

9) The appeal is disposed of accordingly. The impugned

judgment and order stands modified to the aforesaid extent.

Registry is directed to transmit back the original Record and

Proceedings forthwith to the Tribunal concerned. However,

there shall be no order as to costs in this appeal.

Sd/-

(R.M.CHHAYA,J)

Sd/-

(NIRAL R. MEHTA,J) VISHAL MISHRA