Gujarat High Court
Trikambhai Merubhai Bariya vs Vijaysinh Somsinh Parmar on 7 January, 2022
Bench: Sandeep N. Bhatt
C/FA/5065/2010 ORDER DATED: 07/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5065 of 2010
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TRIKAMBHAI MERUBHAI BARIYA
Versus
VIJAYSINH SOMSINH PARMAR & 2 other(s)
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Appellant(s) No. 1,1.1,1.2,1.3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/01/2022
ORAL ORDER
1. The present appeal is preferred under section 173 of the
Motor Vehicle Act by the original claimant who are the heirs of
the deceased Trikambhai Merubhai Bariya and the learned
Claims Tribunal has awarded Rs.6000/- with 7.5% interest
while allowing the claim petition filed in Motor Accident Claim
Petition No. 465 of 2006 vide judgment and order dated
21.08.2009 by the Motor Accident Claims Tribunal (Aux),
Godhara. Being aggrieved for the insufficient amount awarded
by the tribunal, the claimants have preferred the present First
Appeal before this Court.
2. The brief facts of the case which are stated as under:-
2.1 The original - claimant namely Trikambhai Merubhai
Bariya was going near Kalol Bus Stand on side of the road at
that point of time around 11:30 AM on 15.07.2005, the driver
of the motorcycle number GJ-17-A-1818 came in excessive
C/FA/5065/2010 ORDER DATED: 07/01/2022
speed and as he was driving the motorcycle in rash and
negligent manner, he lost his control of the vehicle and rear
ended the motorcycle of the claimant. As a result of which the
claimant sustained injuries and hence the claimant took
medical treatment at the hospital. Thereafter he filed claim
petition before the Motor Accident Claims Tribunal, Godhra
claiming compensation of Rs.1,50,000/- with 12% interest per
annum from the respondent No. 1 - the driver - owner of the
vehicle and the respondent No. 2 - insurance company of the
vehicle. The claim proceeded before the Tribunal and during
the pendency of the claim petition Mr. Trikambhai Merubhai
Bariya expired and therefore the heirs of Mr. Trikambhai
Merubhai Bariya - present appellant Nos. 1 to 3 were brought
on record.
3. The notice of the claim petition was served on the
opponents of the claim petition and the opponent No. 2 has
filed written statement at Exh. 18 denying the contention of
the claim petition and have also denied the income as well as
liability to pay the compensation. The Tribunal has framed the
issue at Exh. 27 and since the original claimant expired during
the pendency of the claim petition the claimant at the relevant
point of time produced his deposition and by considering the
other documentary evidence produced on the record the
Tribunal proceeded further and has found that the accident
occurred due to the negligence of the respondent No. 1. Since,
the respondent No. 2 is the insurance company of the
respondent No. 1, they are liable to pay the compensation to
the heirs of the original claimants. The Tribunal has further
found that since the original claimant has expired during the
pendency of the claim, the Tribunal has awarded lumpsum
C/FA/5065/2010 ORDER DATED: 07/01/2022
compensation of Rs.6000/- only with 7.5% interest and
therefore the present appeal is filed for enhancement of the
amount to the tune of 1,50,000/- by the heirs of the original
claimants who are already brought on the record of the claim
petition.
4. I have heard the learned advocates for the parties. Mr.
Bagel, learned advocate for the appellant has submitted that
the learned Tribunal has erred by not allowing the claim
petition in toto as the claimant of the claim petition Trikambhai
Merubhai Bariya was healthy and hearty and was of the age 65
years and was doing agricultural activities. Mr. Bagel, learned
advocate for the appellant has also pointed out from the
record, more particularly, claim petition filed by the claimant,
by which he indicates that the claimants has also filed an
application for interim compensation at Exh. 6 under section
140 of the Motor Vehicles Act under the head of no fault
liability. The said application seems to be pending before the
learned Tribunal. Thereafter it seems that on 17.04.2009, the
application to implead the heirs of the claimant was preferred
which was granted by the Tribunal and therefore he submitted
that the the amount which is awarded by the Tribunal is
negligible and required to be awarded Rs.1,50,000/- claimed
by the claimant in the claim petition, taking into consideration
the injuries he sustained at that point of time. Hence, he prays
to allow the present appeal.
5. On the other hand, Mr. Vibhuti Nanavati, learned
advocate United India Insurance Company has submitted that
the Tribunal has rightly awarded the amount on the basis of
the medical files and bills. However, he is not in a position to
C/FA/5065/2010 ORDER DATED: 07/01/2022
dispute the factum that the Tribunal has not decided the
application below Exh. 14 to get interim compensation under
section 140 in view of the provisions of no fault liability.
6. Heard the learned advocates for the respective parties
and perused the papers on record. It transpires that after filing
of the claim petition and after filing of the application under
section 140 of the Motor Vehicles Act, the Tribunal had issued
notice to the other side and during the pendency of the matter
the original claimant - Trikambhai Merubhai Bariya expired.
Thereafter, the heirs of the original claimant were brought on
record. It also reveals from the claim petition that the original
claimant - Trikambhai Merubhai Bariya was carrying out
agricultural work and received injuries due to accident as
described in the claim petition. He has also filed the claim
petition seeking compensation of Rs.1,50,000/-. It seems that
no further evidence is produced on record on behalf of the
claimant and no deposition is given to prove the case of the
claimant any further. However, it is undisputed fact that
application under section 140 of the Motor Vehicles Act
remains undecided and the Tribunal proceeded further to
decide the main application under section 166 of the Act. This
in my view is erroneous on the part of the Tribunal. The
Tribunal ought to have considered application under section
140 of the Motor Vehicles Act which reads as under:-
140. Liability to pay compensation in
certain cases on the principle of no
fault.--
C/FA/5065/2010 ORDER DATED: 07/01/2022
(1) Where death or permanent disablement
of any person has resulted from an
accident arising out of the use of a
motor vehicle or motor vehicles, the
owner of the vehicle shall, or, as the
case may be, the owners of the vehicles
shall, jointly and severally, be liable
to pay compensation in respect of such
death or disablement in accordance with
the provisions of this section.
(2) The amount of compensation which
shall be payable under sub-section (1)
in respect of the death of any person
shall be a fixed sum of [fifty thousand
rupees] and the amount of compensation
payable under that sub-section in
respect of the permanent disablement of
any person shall be a fixed sum of
[twenty-five thousand rupees].
(3) In any claim for compensation under
sub-section, the claimant shall not be
required to plead and establish that the
death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act, neglect or
default of the owner or owners of the
vehicle or vehicles concerned or of any
other person.
C/FA/5065/2010 ORDER DATED: 07/01/2022
(4) A claim for compensation under sub-
section shall not be defeated by reason
of any wrongful act, neglect or default
of the person in respect of whose death
or permanent disablement the claim has
been made nor shall the quantum of
compensation recoverable in respect of
such death or permanent disablement be
reduced on the basis of the share of
such person in the responsibility for
such death or permanent disablement.
3 Notwithstanding anything contained in
sub-section regarding death or bodily
injury to any person, for which the
owner of the vehicle is liable to give
compensation for relief, he is also
liable to pay compensation under any
other law for the time being in force:
Provided that the amount of such
compensation to be given under any other
law shall be reduced from the amount of
compensation payable under this section
or under section 163A.
7. The application under section 140 of the Motor Vehicles
Act gives right to claimant to claim compensation in the case
of injury Rs.25,000/- and if the case is filed due to death of the
breadearner then interim compensation is Rs.50,000/-. Hence,
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here in my opinion, in the facts of the present case, the ends of
justice would meet if the amount which is awarded by the
Tribunal of Rs.6000/- is enhanced to Rs.25,000/- as 'Just
Compensation' with 7.5% interest per annum from the date of
the application is awarded. Hence, the claimants would get a
reasonable amount towards compensation and accordingly this
appeal is partly allowed by modifying the judgment and award
dated 21.08.2009 passed by the Motor Accident Claims
Tribunal (Aux), Godhara in Motor Accident Claim Petition No.
465 of 2006. The respondent Nos. 1 and 2 are jointly and
severely liable to pay the amount awarded to the claimants.
8.1 Accordingly, the present appeal is partly allowed to the
abovementioned extend.
8.2 The respondents are directed to deposit the enhanced
amount of Rs.19,000/- (Rupees Nineteen Thousand only) plus
proportionate interest at the rate of 7.5% per annum within 6
(six) weeks from the date of the present order before the
Tribunal and on depositing of such amount, the Tribunal will
pay the amount to the claimants after due verification by
Account Payee check.
8.3 Records and proceedings lying with this Court may be
sent forthwith to the concerned Tribunal.
8.4 No order as to costs.
(SANDEEP N. BHATT,J)
SHRIJIT PILLAI
