Gujarat High Court
Mangalbhai Gotahai Zala vs Nareshbhai Vijaybhai Dabhi on 21 June, 2022
Bench: Sandeep N. Bhatt
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3890 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
================================================================
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 ?
================================================================
MANGALBHAI GOTAHAI ZALA
Versus
NARESHBHAI VIJAYBHAI DABHI & 2 other(s)
================================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
for the Defendant(s) No. 3
DUSHYANT M BHATT(7266) for the Defendant(s) No. 1,2
MR NIKUNT K RAVAL(5558) for the Defendant(s) No. 3
================================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/06/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant, being aggrieved and dissatisfied with the judgment and
award dated 11.07.2012 passed by the Motor Accident Claims
Tribunal (Aux.), Nadiad in Motor Accident Claim Petition No.753 of
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
2008, by which the Tribunal has rejected the claim petition.
2. Brief facts of the case are as under:
2.1 On 13.12.2007 at about 7:30 p.m., the claimant was going in
rickshaw bearing registration No.GJ-7-TT-1271 from Mahemdavad
to village Jaliya, which was driven by Opponent No.1 and owned
by Opponent No.2. When he reach near to Khatraj Cross Road
(Panchvati), the said rickshaw collided with one Truck, which was
coming from Kathlal. As a result, the claimant sustained injuries.
Therefore, a complaint was registered by claimant - Mangalbhai
Gotabhai Zala at Mahemdabad Police Station being C.R.No.I-267
of 2007. Therefore, the claim petition is filed by the claimant to get
the compensation of Rs.1 lakh with interest.
2.2 Notices were served to the opponents - driver, owner and
insurance company of the rickshaw. The claimant has not joined
the truck owner, driver or its insurance company as party
respondents in the claim petition. Opponent Nos.1 and 2 have
appeared but have not filed their written statement. Opponent No.3
- insurance company has filed its written statement at Exh.14 by
disputing all the averments made by the claimant in the claim
petition.
2.3 Issues were framed by the Tribunal. The oral as well as
documentary evidence, mentioned in para Nos.5 and 6, were led
by the rival parties before the Tribunal. After considering the
various documentary as well as oral evidence and submissions
made at the bar, the Tribunal has dismissed the claim petition.
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
2.4 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present appeal is
preferred by original claimant before this Court for compensation.
3.1 Learned advocate Mr. Paresh M. Darji for the appellant -
original claimant has submitted that the Tribunal has committed
gross error in dismissing the claim petition by observing that the
truck is only negligent as per the evidence available on record,
more particularly, the evidence of the P.S.I. Chauhan
Bhupendrasinh of Mahemdabad Police Station, who has deposed
at Exh.43. He has also drawn the attention of this Court towards
para 12 of the impugned judgment and has submitted that since
the claimant was travelling as a passenger in the rickshaw, the
claimant can file claim petition against either of the tortfeasors i.e.
rickshaw and/or truck. He has relied upon the judgment of the
Hon'ble Apex Court in the case of Khenyei versus New India
Assurance Co. Ltd. reported in (2015) 9 SCC 273 and has
submitted that it is the case of composite negligence for the
claimant and therefore, the Tribunal has committed serious error in
dismissing the claim petition by observing that the driver of the
truck is found sole negligent, that too the owner and the insurance
company of the truck have not joined as party respondents in the
claim petition. He has submitted that the Tribunal has committed
error by not keeping in view of ratio laid down by this Court in the
case of Kusumben Vipinchandra Shah versus Arvindbhai
Narmadashankar Raval reported in 2007 (1) GLH 601.
3.2 He has further submitted that the Tribunal has committed
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
error in not calculating the amount of compensation. Therefore, he
has submitted that as per the record available with the Tribunal,
the Tribunal ought to have calculated the amount of compensation
which is to be awarded under the provisions of the Motor Vehicle
Act, 1988.
3.3 He has submitted that in the present case, on the aspect of
injury, the disability is considered to the extent 8% and income
should be considered Rs.3,000/- per month notionally and income
to the extent 40% should be added towards future prospective
income by keeping in view the ratio laid down by the Hon'ble Apex
Court in the case of National Insurance Company Limited
versus Pranay Shethi reported in (2017) 16 SCC 680.
3.4 He has submitted that the amount under the head of future
loss of income, pain, shock and suffering, attendant &
transportation charges and special diet should also be awarded by
the Tribunal.
3.5 Further, he has submitted that the Tribunal has committed
gross error in not awarding medical bills of Rs.4,625/- which are
produced on record. Further, he has submitted that the Tribunal
ought to have considered the fact that the claimant has taken rest
for two months. The Tribunal therefore ought to have awarded the
amount towards actual loss of income. Therefore, he has
submitted that the present appeal may be allowed by awarding
compensation to the appellant - original claimant.
4. Per contra, learned advocate Mr. Nikunt K. Raval for
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
respondent No.3 - insurance company of the rickshaw has
submitted that the Tribunal has rightly dismissed the claim petition
by giving cogent and convincing reasons in para 12 of the
impugned award. He has submitted that the Tribunal has rightly
come to the conclusion that the accident is occurred due to
negligence of the driver of the truck and neither driver nor owner
nor insurance company of the truck was impleaded as party
respondents. He has submitted that no interference is required to
be called for in the impugned award by this Court. He has
submitted that this appeal may be dismissed.
5. It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the
concept of 'just and fair' compensation. It is a beneficial legislation
which has been framed with the object of providing relief to the
victims or their families. Section 168 of the Motor Vehicles Act
deals with the concept of 'just compensation' which ought to be
determined on the foundation of fairness, reasonableness and
equitability. Although such determination can never be
arithmetically exact or perfect, an endeavor should be made by the
Court to award just and fair compensation irrespective of the
amount claimed by the claimants.
6.1 I have considered the submissions made at the bar. I have
perused the record and proceedings of the Tribunal. I have gone
through the impugned judgment and award passed by the
Tribunal.
6.2 It is required to be noted that the present claim petition is
filed by the claimant against the driver, owner and insurance
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
company of the rickshaw, in which the claimant was travelling as a
passenger. It is a matter of fact that the truck came from opposite
side and dashed with the rickshaw. It is a mater of record that the
claimant has not joined the driver, the owner and the insurance
company of the truck in the claim petition. Therefore, as per the
judgment of the Hon'ble Apex Court in the case of Khenyei
(supra) as well as keeping in view the decision of this Court in the
case of Kusumben Vipinchandra Shah (supra), it is the case of
composite negligence, as the claimant was travelling as a
passenger in the rickshaw. Therefore, the Tribunal has committed
gross error in dismissing the claim petition.
6.3 Further, on the aspect of quantum, the Tribunal has not
calculated the income of the claimant. It is expected from the
Tribunal that even in the case where the claim petition is dismissed
on the ground of legal aspects, the notional income should be
considered and award the compensation. Since the accident is
occurred in the year 2008, it is not desirable to remit back the
claim petition to the Tribunal for calculating the amount of
compensation afresh, which will cause further delay in justice.
Therefore, in these facts and circumstances of the case, if
appropriate compensation would be calculated and granted to the
claimant by this Court, it would meet, the ends of justice.
6.4 By considering the age of claimant i.e. 35 years at the time of
accident, who is doing the job of Agriculture Labourer and it is
undisputed fact that he was earning Rs.3,000/- per month at the
time of accident and by adding 40% towards prospective income, it
would come to Rs.4,200/- per month, which would come to
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
Rs.50,400/- per annum. Further, under the head of disability to the
extent 8%, which is undisputed, therefore, it would come to
Rs.4,032/- per month income. Further, looking to the age and
considering the decision of Hon'ble Apex Court in the case of
Sarla Verma versus Delhi Transport Corporation reported in
(2009) 6 SCC 121, 16 multiplier would be proper to apply in the
present case, therefore, it would come to Rs.64,512/- under the
head of future loss of income. Therefore, I award Rs.64,512/-
under the head of future loss of income.
6.5 Further, the claimant has to take rest for two months as per
evidence available on record and there is no rebuttal against this
fact, therefore, considering Rs.3,000/- per month notional income,
which would come Rs.6,000/- for two months towards actual loss
of income. Therefore, I award Rs.6,000/- towards actual loss of
income.
6.6 Further, the claimant has received injuries, which is, in fact,
assessed to the extent 21%, but is reduced to the extent 8% by
consensus of the parties before the Tribunal, as the claimant has
received one fracture. Therefore, considering the decision of the
Hon'ble Apex Court in the case of Syed Sadiq versus United
India Insurance Co. Ltd. reported in 2014(2) SCC 735, I found
Rs.10,000/- under the head of pain, shock and suffering should be
just and proper to award and I award accordingly.
6.7 Further, under the head of attendant and transportation
charges as well as special diet, Rs.10,000/- should be just and
proper to award and I award accordingly considering the injury
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
received by the injured and his medical treatment.
6.8 Further, under the head of medical bills of Rs.4,625/- which
is produced before the Tribunal and I award Rs.4,625/- under the
head of medical bills.
6.9 Thus, the appellant - original claimant is entitled to get the
following final amount as compensation :
Particulars Amounts (Rs.)
Future loss of income 64,512/-
Actual loss of income 6,000/-
(for two months)
Pain, shock and suffering 10,000/-
Attendant, transportation and 10,000/-
special diet
Medical Bills 4,625/-
Total... 95,137/-
6.10 Thus, the total amount of compensation comes to
Rs.95,137/-. The opponents I.e the driver, owner and insurance
company of the rickshaw - original opponents are jointly and
severally liable to pay the aforesaid amount of Rs.95,137/- to the
appellant - original claimant as compensation, with interest @ 9%
per annum, from the date of filing the claim petition till its
realization.
7. For the reasons recorded above, the following order is
passed.
C/FA/3890/2012 JUDGMENT DATED: 21/06/2022
7.1 The present appeal is allowed, to the aforesaid extent.
7.2 The judgment and award dated 11.07.2012 passed by the
Motor Accident Claims Tribunal (Aux.), Nadiad in Motor Accident
Claim Petition No.753 of 2008 is hereby quashed and set aside by
awarding the amount of compensation as above.
7.3 The respondent No.3 - insurance company is directed to
deposit the amount of Rs.95,137/- with the interest @ 9% per
annum before the concerned Tribunal, within a period of six weeks
from the date of receipt of this order.
7.4 It would be open for the respondent No.3 - insurance
company to recover the amount from other tort-feasor(s) by
following due procedure as per the judgment of the Hon'ble Apex
Court in the case of Khenyei (supra).
7.4 On depositing the said amount, the Tribunal shall pay the
entire awarded amount with accrued interest, to the claimant, by
account payee cheque, after proper verification and after following
due procedure.
7.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
