Gujarat High Court
Mahendra Somabhai Patel vs Vijay Ramsingh Varma on 12 January, 2022
Bench: Hemant M. Prachchhak
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 523 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHENDRA SOMABHAI PATEL
Versus
VIJAY RAMSINGH VARMA & 2 other(s)
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 12/01/2022
ORAL JUDGMENT
1. This appeal is filed by the appellant - claimant seeking
enhancement of the compensation amount awarded by the
Motor Accident Claims Tribunal (Aux.), Valsad (hereinafter
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
referred to as "the Tribunal") vide impugned judgment and
award dated 08.10.2009 passed in M.A.C.P. No.2162 of 2002,
whereby the Tribunal has partly allowed the claim petition and
awarded a sum of Rs.2,36,700/-.
2. Brief facts of the present case are that on 21.09.2001, the
claimant went to his house from Paradi to Valsad on his
motorcycle in correct side and at that time, opponent no.1 came
driving the truck bearing registration no.GRN-5375 in rash and
negligent manner dashed behind the motorcycle of the claimant,
as a result of which, he sustained serious injury. Hence, the
claimant has filed M.A.C.P. No.2162 of 2002 before the Tribunal,
which came to be partly allowed by the Tribunal and awarded a
sum of Rs.2,36,700/- along with interest at the rate of 10% p.a.
against the claim of Rs.4,00,000/-.
3. It came to be held by the Tribunal that said amount was
ordered to be awarded to the deponents. Not being satisfied with
the compensation amount, this appeal has been filed.
4. Heard Mr.Amit Patel, learned counsel appearing for the
appellant and Mr.Palak Thakkar, learned counsel appearing for
the respondent - Insurance Company through video conference.
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
5. Mr.Amit Patel, learned counsel appearing for the appellant
has submitted the same facts which are narrated in the memo of
appeal. He has submitted that the Tribunal has failed to
appreciate the amount of compensation on the ground of
income, disability, future prospective rise in the income and
under the head of pain, shock and suffering etc. He has also
submitted that while the appellant was going on his motorcycle,
the offending vehicle dashed behind the back of the motorcycle
and, therefore, there is no negligency on the part of the
appellant. He has submitted that looking to the injury sustained
by the appellant, it is proved that the appellant is not able to
work and do the daily activities as a normal person and there is
direct effect of disability in earning capacity of the appellant. He
has submitted that the appeal may be allowed and the impugned
award may be modified.
6. As against that Mr.Palak Thakkar, learned counsel
appearing for respondent - Insurance Company has objected
enhancement of the amount awarded by the Tribunal and has
supported the impugned judgment and award passed by the
Tribunal. He has submitted that so far as the income of the
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
deceased is concerned, there is no cogent and proper proof or
evidence led by the appellant and even the multiplier applied by
the Tribunal is just and proper and, therefore, no interference is
called for.
7. Having considered the averments made in the appeal,
submissions made by the learned counsel appearing for both the
sides and considered the facts of the case and perused the
record and proceedings, it appears that the Tribunal has erred by
passing the impugned judgment and award and in considering
10% negligency on the part of the present appellant. In fact, it is
the case of the appellant that while he was going towards his
house offending truck dashed behind back side of his vehicle. I
have also perused the panchnama of the place of accident and
the FIR filed against the driver of the offending vehicle i.e. truck
and even the charge-sheet is also filed against the driver of the
offending vehicle and, therefore, the findings recorded by the
Tribunal is erroneous and perverse in nature. It also appears that
the Tribunal has not considered the future prospective rise in the
income of the appellant. Therefore, the impugned judgment and
award is required to be quashed and set aside on the aspect of
the contributory negligency on the part of the appellant as held
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
by the Tribunal in the impugned award.
8. Considering the ratio laid down by the Hon'ble Supreme
Court in the case of Sarla Verma and others Vs. Delhi
Transport Corporation and another, (2009) 6 SCC 1211,
National Insurance Company Limited Vs. Pranay Sethi and
others, (2017) 16 SCC 680, Kajal Vs. Jagdish Chand and
others, (2020) 4 SCC 413 and Jithendran Vs. New India
Assurance Company Limited, AIR 2021 SC 5382, I am of
the considered opinion that the appellant is entitled to get
additional amount of compensation of Rs.1,50,000/- considering
the future loss of income of the original claimant and appeal
requires to be allowed and the impugned judgment and award
requires to be substituted by enhancing the amount of
compensation. Accordingly a sum of Rs.1,50,000/- as additional
compensation requires to be awarded towards future loss of
income, which is just and reasonable compensation and the
same is awarded in addition to the compensation awarded by the
Tribunal. However, the appellant is entitled to get additional /
enhanced amount of compensation of Rs.1,50,000/- along with
interest at the rate of 6% from the date of application till
realization of the amount.
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
9. For the foregoing reasons, I proceed to pass the following
order.
(i) Appeal is allowed in part. The impugned judgment and
award dated 08.10.2009 passed by the Motor Accident
Claims Tribunal Aux.), Valsad in M.A.C.P. No.2162 of 2002
is hereby quashed and set aside on the aspects of the
contributory negligency on the part of the appellant.
(ii) Judgment and award dated 08.10.2009 passed by the
Motor Accident Claims Tribunal Aux.), Valsad in M.A.C.P.
No.2162 of 2002 is hereby modified and in addition to
what has been awarded by the Tribunal, a sum of
Rs.1,50,000/- as additional amount with interest at the
rate of 6% per annum is awarded which shall be from the
date of petition till date of payment or deposit whichever
is earlier.
(iii) The Insurance Company is directed to deposit additional
amount of compensation with 6% interest as early as
possible within an outer limit of two months from the date
of receipt of certified copy of this order.
C/FA/523/2011 JUDGMENT DATED: 12/01/2022
(iv) The apportionment and order for disbursement as made
by the Tribunal in paragraph no.11 of the operative
portion of the order shall hold good for the additional
amount of compensation.
(v) The appellant is directed to pay deficit court fees on the
enhanced amount within one month from the date of
receipt of certified copy of this order, if any.
(vi) Decree be drawn accordingly.
Record and proceedings be sent back to the concerned
Tribunal forthwith. Pending civil applications shall stand disposed
of accordingly.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
