Batukbhai Haribhai vs Ratilal Nanjibhai
2022 Latest Caselaw 1598 Guj

     C/FA/1893/2012                               JUDGMENT DATED: 11/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1893 of 2012

                      FOR APPROVAL AND SIGNATURE:

              HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed                   Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

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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                           BATUKBHAI HARIBHAI
                                 Versus
                       RATILAL NANJIBHAI & 1 other(s)
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,1.1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 11/02/2022

                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the Batukbhai Haribhai-Original Claimant, being aggrieved and dissatisfied with the judgment and award dated 13.01.2011 passed by the Motor Accident Claims Tribunal (Aux.), Gondal camp at Jetpur in Motor Accident Claim Petition No. 482 of 1997, by which the Tribunal has dismissed the claim petition.

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Therefore, the claimant has filed the present appeal under Section 173 of the Motor Vehicle Act, 1988.

2. Brief facts of the case are as under:

2.1 On 09.02.1997 at about 10:00 p.m., the claimant was going to Amreli from Bagasara by Chhakdo Rickshaw bearing registration No.GTX 2416 alongwith his goods (tomatoes) and he was sitting in the Chhakdo Rickshaw, the Opponent No.1-driver of the Chhakdo Rickshaw driven the Chhakdo Rickshaw in rash and negligent manner and had dashed with unknown vehicle and due to that, the claimant has received grievous injuries in right leg and got permanent disability. He has taken medical treatment at various places. He has also suffered the mental peace and financial loss and thereafter, the claimant has filed a claim petition to get compensation of Rs.1,00,000/- from all the opponents, which was dismissed by the Tribunal vide judgment and order dated 13.01.2011.

2.2 The Tribunal has issued summons to all the opponents. Opponent No.1 has not appeared, though the summons is served and Opponent No.2-Insurance Company has appeared and filed its reply at Exh.6, by contending that the claimant was sitting by keeping his leg outside the Chhakdo Rickshaw and therefore, he has received injuries and has denied the liability to pay any compensation to the claimant.

2.3 The issues were farmed by the Tribunal vide Exh.11 and claimant has deposed vide Exh.36 and documentary evidences like

C/FA/1893/2012 JUDGMENT DATED: 11/02/2022

medical bills, driving licence of opponent at Exh.22, copy of F.I.R. vide Exh.23., copy of Panchnama vide Exh.24, Disability Certificate vide Exh.26, First Aid Certificate vide Exh.25, R.C. Book of vehicle vide Exh.27, copy of Charge-sheet vide Exh.28 and also produced the photograph of claimant to show his grievous injuries. The insurance company has examined the clerk from the R.T.O office vide Exh.43 and has produced insurance policy of Chhakdo Rickshaw vide Exh. 31.

2.4 The Tribunal, after considering the oral and documentary evidences, came to the conclusion that the claimant has failed to establish the negligence of Respondent No.1 -driver and therefore, claim deserves to be dismissed. Therefore, the present First Appeal is preferred by the claimant to get compensation.

3.1 Learned advocate for the claimant Mr. Tushar L. Sheth has submitted that the Tribunal has erred in not considering the documentary as well as oral evidence available on record and more particularly, when the accident has occurred between two vehicles from the front side, then normally it cannot be held that driver of one vehicle is negligent. He has further contended that the Tribunal has erred in holding that the applicant was sitting in Chhakdo Rickshaw by keeping his right leg out of the vehicle and therefore, the applicant is negligent but learned advocate Mr. Tushar L. Sheth has argued that it does not mean that it is not the duty of the Chhakdo Rickshaw driver to drive the Rickshaw by taking proper care of the leg of the applicant or it is the duty of the driver to ask the concerned

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passenger to sit in proper manner. He has also submitted that no evidence is available on record to indicate that such warning is given by the driver of the Chhakdo Rickshaw as he has not been examined by the respondent. He has further contended by heavily relying on FIR that the Tribunal has erroneously found that appellant has not narrated the entire incident and therefore, F.I.R. does not help to the case of the applicant, but learned advocate Mr. Sheth has contended that F.I.R. is not intended to be an encyclopedic of the background scenario. He has further contended that the Tribunal has committed an error by considering the cross-examination in different manner as the Tribunal has erred that the issue of not raising question of negligence, much less in the cross-examination is baseless on the ground that facts stated by the claimant in the F.I.R. is different there what is stated in the claim petition and claimant cannot go back from the facts stated in F.I.R. He has further contended that when the claimant stated in Examination-in-Chief on affidavit that Chhakdo Rickshaw driver had driven his vehicle in rash and negligent manner, then without any cross-examination on the said aspect, the facts stated in the chief examination ought to have been believed by the Tribunal. He has further contended that Chhakdo Rickshaw driver was not examined by the other side and when the charge-sheet was filed against the Chhakdo Rickshaw driver and when the accident was occurred between two vehicles from front, side then there is no cross-examination of the aspect of negligence of the claimant so the Tribunal ought to have considered the provision of Motor Vehicles Act, 1988 in liberal manner and accordingly allow the claim petition of the claimant. In support of his submission, On

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the aspect aspect of non-cross-examination of the claimant on the issue of the negligence as well as on the aspect of attributing negligence of the claimant himself, he has relied on the judgment reported in 2020 (1) Supreme Court Cases 171 in the case of Anita Sharma and Others Vs. New India Assurance Co. Ltd., & Anr., and has specifically contended that para Nos.23 to 26 are relevant, therefore the same are reproduced as under:

"23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck driver's carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.

24. Further, little reliance can be placed on the contents of the FIR (Exh.-1), and it is liable to be discarded for more than one reasons.

First, the author of the FIR, that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cum-driver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third,

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the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil abilities. Contrarily, the statement of AW-3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No.1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW-3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly.

25. Adverting to the claimants' appeal for enhancement of compensation, we are of the view that no effective argument could be raised on their behalf as to how the compensation assessed by the Tribunal was inadequate, except that in view of the authoritative pronouncement of this Court in National Insurance Co. Ltd., v. Pranay Shethi, the claimants are entitled to an increase of 40% towards annual dependency on account of 'future prospects' given the undisputed age of the deceased. Their appeal to that extent deserves to be allowed.

CONCLUSION:

26. In light of the above discussion, the judgment under appeal of the High Court is set aside and the appellants are held entitled to compensation as awarded by the Tribunal, besides 40% addition in the annual income of the deceased towards 'future prospects'. The Motor Accident Claims Tribunal, Sikar (Rajasthan) is directed to recalculate the compensation amount accordingly. The appellants are held entitled to interest @ 8.5%, as per the Tribunal's award, on the entire amount of compensation. The Tribunal shall re-calculate the compensation within one month and the insurance company shall deposit the same within one month thereafter. No order as to costs."

       C/FA/1893/2012                          JUDGMENT DATED: 11/02/2022




3.2     Thereafter, learned advocate Mr. Sheth has contended that the

Tribunal has committed gross-error on the issue of negligence. He has relied upon the judgment and order of our own High Court reported in (2010) 51 (1) GLR 312 rendered in the case of Oriental Insurance Company Co., Ltd., Vs. Gangaben Salambhai Nayak, where the issue of negligence is decided. In that case, the cleaner was sitting on roof top of the vehicle and has died due to accident occurred when Tempo dashed with other vehicle. Our High Court has come to the conclusion that contention of Insurance Company regarding contributory negligence of the deceased is rejected. Therefore, he has contended in view of that decision also that the Tribunal has erred in not granting appropriate compensation by following the claim petition. By relying upon the judgment reported in 2017 ACJ 1857 in the case of Himanchal Road Transport Corp. & Anr. Vs. Kamlesh Kumari & Ors., and another judgment reported in (1995) 2 Gauhati Law Reports 20 in the case of Unior of India & Anr. Vs. Mrs. Saraswati Debnath & Ors., learned advocate Mr. Sheth has submitted that from the written statement filed by the Insurance Company at Exh.6, where in para 9 of the written statement, Insurance Company has submitted that "it is true that the alleged accident is occurred due to negligence on the part of goods Rickshaw bearing registration No.GTX-2416."

3.3 He has prayed that by considering income of Rs.1,500/- p.m. and by adding towards prospective income @ 40% and by considering disability about 25% as per endorsement made in the

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certificate and by awarding some amount towards pain, shock and suffering and under the head of transportion, attendance and special diet charge, the Court should grant the compensation around Rs.1,00,000/- to Rs.1,25,000/-. He has prayed to allow the appeal with appropriate direction to the respondents.

4. Per contra, learned advocate Ms. Lilu K Bhaya for the Insurance Company has contended that the Tribunal has rightly found that there is inconsistency in the pleadings of the claim and in the proof of chief examination and more particularly, the Tribunal has found that the claimant himself has kept his leg out side the Chhakdo Rickshaw then the negligence on the part of Chhakdo Rickshaw driver cannot be considered as the claimant himself is responsible for his injuries and merely F.I.R. is lodged against the Chhakdo Rickshaw driver or charge-sheet is filed against Chhakdo Rickshaw driver who was not examined as a witness, do no give any right to the claimant to contend that the Chhakdo Rickshaw driver is liable and no negligence can be attributed to him. Learned advocate Ms. Bhaya has tried to point out from the F.I.R. that claimant has averred that, "as I have kept my right leg outside the Chhakdo Rickshaw, I received injury in the right leg and due to accident, my right leg got fractured." and therefore, learned advocate Ms. Bhaya has further contended that the claimant should not get any benefit of the beneficial provisions of the Motor Vehicles Act, 1988 unless he proves his case beyond reasonable doubt. Therefore, learned advocate Ms. Bhaya has prayed to dismiss the present appeal as appeal is meritless and this Court should not interfere with by

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exercising powers under Section 173 of Motor Vehicles Act, 1988.

5.1 I have heard learned advocates for the respective parties and have also perused the record and proceedings. It is noteworthy that contention of learned advocate Mr. Sheth that Insurance Company has admitted in its written statement vide Exh.6 in para 11 about the negligency part of goods Rickshaw driver, is not taken into consideration by the Tribunal. I have also found substance in the submission of the learned advocate Mr. Sheth that in view of the judgment of our own High Court rendered in the case of Oriental Insurance Company Co., Ltd. (supra), that the person, who died by sitting on roof top, was also contributory negligent which was not accepted by this Court and therefore, also, in view of that judgment, the claimant is not following rules, as a prudent man, while sitting Chhakdo Rickshaw in and no contributory negligence can be attributed to the claimant. More particularly, there is no evidence available on record that driver of the Chhakdo Rickshaw has warned him to take his legs inside the Chhakdo Rickshaw. On the contrary, the FIR came to be lodged against the driver of the Chhakdo Rickshaw and charge-sheet filed against him, it clearly indicates that he has driven his vehicle in rash and negligent manner by which he has caused the incident with another vehicle and due to that the claimant has received injury. Moreover, the Insurance Company has admitted in its written statement. Also that there is no cross- examination on the aspect of negligence by the Insurance Company. Learned advocate Mr. Sheth has rightly relied upon the decision in the case of Anita Sharma and Others (supra), where para 18, and

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para 21 to 24 are important for the facts and circumstances of the present case.Therefore, I found that the Tribunal has committed gross error in giving finding on issue No.1 in its judgment by holding the claimant himself liable for causing of accident instead of holding the driver of the Chhakdo Rickshaw responsible for causing accident.

5.2 It is noted that it is also not required to be impleaded the party of the other vehicle though the accident occurred by involvement of two vehicles and then, for the third party like the present claimant, the case is not remains for contributory negligence but case would be of composite negligence and therefore, the claimant can implead any of the tort-feasor(s) and prays for compensation. Therefore, that contention of learned advocate Ms. Bhaya is also not well founded in the facts and circumstances of the present case. Now, further I hold that the driver of the Chhakdo Rickshaw is responsible for causing accident and therefore, the claimant is entitled to get compensation and accordingly, compensation is required to be paid to the claimant.

5.3 The claimant has field the claim petition for Rs.1,00,000/-. Now, the computation of the claim amount which is required to be assessed by this Court, as the Tribunal has not taken that exercise and has wrongly given finding on the issue Nos.3 and 5. Therefore, by considering income of the claimant, Rs.1,500/-p.m. in absence of any evidence, where he was aged about 26 years old, in view of decision of the Hon'ble Apex Court in the case of National

C/FA/1893/2012 JUDGMENT DATED: 11/02/2022

Insurance Co. Ltd., v. Pranay Shethi we can add 40% towards future prospective income, which comes to Rs.2100/-, and by considering the endorsement of the disability certificate, we can consider the disability to the extent of 25% so, the amount of Rs.525/- p.m. towards loss of future prospective income, would come to Rs.6,300/- p.m., as the claimant was aged about 26 years old, therefore, 17 multiplier should be applied, so it would come to Rs.1,07,100/-. He can also be given some amount towards period shock and suffering after considering period of treatment i.e. from 10.02.1997 to 17.02.1997 and thereafter, from 10.3.1997 to 07.04.1997, as indoor patient, it can easily be considered Rs.10,000/- and towards transportation, attendance and special diet charges, Rs.5,000/- more should be granted and thus, considering amount of future prospective income of Rs.1,07,100/- (as calculated above, plus pain, shock and suffering of Rs.10,000/-, plus Rs.5,000/- towards transportation and attendance and special diet charges, total would be Rs.1,22,100/-. is the figure. Since, the claimant has claimed Rs.1,00,000/-, I deem it proper to award Rs.1,00,000/- towards compensation with 7.5% p.a. interest from the date of application till its realization, which would meet the ends of justice.

6. With the above observations, the following order is passed:

6.1 The Respondents are directed to pay the amount jointly and severally and Respondent No.2-Insurance Company is directed to deposit the amount of Rs.1,00,000/- alongwith 7.5% p.a. interest, from the date of application, before the concerned Tribunal, within

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a period of six weeks from today .

6.2 On depositing of such amount, the concerned Tribunal shall disburse the amount to the claimant after due procedure, by account payee cheque and also by recovering court fees if any, recoverable from the claimant.

6.3 The present First Appeal No. 1893 of 2012 is partly allowed by awarding Rs.1,00,000/- with 7.5% p.a. interest to the claimant and setting aside the impugned judgment and award dated 13.01.2011 passed by the Tribunal, with no order as to costs.

6.4 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA