Ghanshyambhai S Patel vs Ranchodbhai I Patel
2022 Latest Caselaw 458 Guj

     C/FA/4620/2006                               JUDGMENT DATED: 13/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4620 of 2006


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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                         GHANSHYAMBHAI S PATEL
                                Versus
                      RANCHODBHAI I PATEL & 3 other(s)
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Appearance:
MR MOHSIN HAKIM FOR MR GM JOSHI(370) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1,3
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 13/01/2022

                             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.), Kheda at Nadiad

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

(hereinafter referred to as "the Tribunal") vide impugned

judgment and award dated 19.04.2006 passed in M.A.C.P.

No.2825 of 1990.

2. Brief facts of the present case are that on 14.06.1990, in

night hour, the original claimant along with his friend Ashokbhai

Balrambhai was going to Mehsana from Vadodara in his

ambassador car bearing registration No.GJH-2526, at that time

opponent no.1 came driving truck bearing registration No.GRW-

1296 between 12.30 a.m to 12.45 a.m., in the sim of Village:

Dabhan and Nadiad, on wrong side without giving any signal and

by applying brake stopped the truck, due to which the claimant

has applied the brake suddenly, who dashed behind the truck, as

a result of which, the claimant sustained injury. Hence, the

appellant - original claimant has filed the aforesaid claim

petition before the Tribunal. The Tribunal, after evaluating the

pleadings and evidence tendered by the parties, partly allowed

the claim petition and awarded a sum of Rs.2,67,308/- under the

different heads as against the claim of Rs.15,00,000/-.

3. It came to be held by the Tribunal that said amount was

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

ordered to be awarded to the deponents. Not being satisfied with

the compensation amount, this appeal has been filed.

4. Heard Mohsin Hakim, learned counsel appearing for Mr.G.

M. Joshi, learned senior counsel for the appellant, Ms.Karuna

Rahevar, learned counsel appearing for respondent no.2 -

Oriental Insurance Company Limited and Mr.Palak Thakkar,

learned counsel appearing for the respondent no.4 - United India

Insurance Company Limited through video conference. Though

served, nobody appears on behalf of respondents no.1 and 3.

5. Mr.Hakim, 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 materially erred

in coming to the conclusion that the driver of the car is 75%

negligent and the driver of the truck is 25% negligent for causing

the accident. He has submitted that as per the FIR and the

panchnama as well as evidence led by the claimant, it is clear

that due to the sole negligence on the part of the truck driver,

the accident took place. He has submitted that the statement

made by the claimant is uncontroverted by the owner and driver

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

of the truck and, therefore, the Tribunal ought not to have held

that the driver of the car is negligent. It is submitted that the

owner of the truck has chosen not to appear and denied the facts

of the claim petition. He has submitted that there is no cogent

reason given by the Tribunal while arriving at such findings. He

has submitted that the Tribunal has erred in deciding the

negligence part without appreciating the evidence led by the

claimant. He has submitted that the appeal may be allowed and

the impugned award may be modified and enhanced the amount

of compensation.

6. As against that Ms.Rahevar, learned counsel appearing for

respondent no.2 and Mr.Thakkar, learned counsel appearing for

respondent no.4 - Insurance Company have supported the

impugned judgment and award passed by the Tribunal. They

have submitted that so far as the income of the 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,

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

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

committed an error while calculating the amount of

compensation and even not considered the facts of the case,

contents of the FIR and the panchnama.

8. So far as the negligence is concerned, from the contents of

the panchnama and the FIR, it appears that both the vehicles are

equally negligent for causing accident and, therefore, the

negligency on the part of both the vehicles are equal to that

effect and, therefore, the observation made by the Tribunal

regarding negligency requires to be quashed and set aside.

Therefore, this Court finds that both the vehicles are equally

responsible for causing accident and the drivers of both the

vehicles are negligent equally. Thus, the liability of drivers of

both the vehicles is 50% each instead of 75% and 25%.

9. So far as the quantum is concerned, the same is hereby

modified and substituted to the following extent.

Future Loss of Income                                          Rs.1,75,500.00





       C/FA/4620/2006                             JUDGMENT DATED: 13/01/2022



Rs.60,000 per month

Rs.60,000 x 25% prospective rise = Rs.15,000 Rs.75,000 (Rs.60,000 + Rs.15,000) x 18% disability = Rs.13,500 Rs.13,500 x 13 multiplier Actual loss of income Rs.60,000.00 Medical expenses Rs.8,23,832.00 Special diet, transportation and attendant Rs.20,000.00 charges Pain, shock and suffering Rs.25,000.00 Loss of amenities of life and enjoyment Rs.25,000.00 Less: 50% negligence attributed on the part of Rs.5,64,666.00 the claimant Additional amount of compensation Rs.2,97,358.00

Accordingly a sum of Rs.2,97,358/- 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 Rs.2,67,308/- awarded by the

Tribunal. However, the appellant is entitled to the additional/

enhanced amount of compensation of Rs.2,97,358/- along with

interest at the rate of 7.5% from the date of application till

realization of the amount.

10. Considering the ratio laid down by the Hon'ble Supreme

Court in the case of Kajal Vs. Jagdish Chand and others,

(2020) 4 SCC 413, Sarla Verma and others Vs. Delhi

Transport Corporation and another, (2009) 6 SCC 1211,

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

National Insurance Company Limited Vs. Pranay Sethi and

others, (2017) 16 SCC 680 and Jithendran Vs. New India

Assurance Company Limited, AIR 2021 SC 5382, I am of

the considered opinion that the appeal is required to be allowed

to the extent. The present appellant himself was driving the

offending vehicle (car) and, therefore, the Tribunal has rightly

exonerated respondent no.4 - Insurance Company and the same

is remained unaltered and unchanged. The appellant can recover

the amount of compensation from respondent no.2 with interest

at the rate of 7.5% from the date of petition till realization of the

award.

11. For the foregoing reasons, I proceed to pass the following

order.

(i) Appeal is allowed in part. The impugned judgment and

award regarding the negligence part is hereby quashed

and set aside to the extent that the liability of the driver of

both the vehicles is 50% each instead of 75% and 25%.

(ii) Judgment and award dated 19.04.2006 passed by the

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in

M.A.C.P. No.2825 of 1990 is hereby modified and in

addition to what has been awarded by the Tribunal, a sum

of Rs.2,97,358/- as additional amount with interest at the

rate of 7.5% per annum is awarded which shall be from

the date of petition till date of payment or deposit

whichever is earlier.

(iii) The respondent no.2 - Insurance Company is directed to

deposit additional amount of compensation with 7.5%

interest as early as possible within an outer limit of eight

weeks from the date of receipt of certified copy of this

order.

(iv) The apportionment and order for disbursement as made

by the Tribunal in paragraph no.10 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

C/FA/4620/2006 JUDGMENT DATED: 13/01/2022

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, if any, shall stand

disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL