Amrabhai Meghabhai Algotar vs Veljibhai Karshanbhai Ahir
2022 Latest Caselaw 4888 Guj

     C/FA/261/2014                                  CAV JUDGMENT DATED: 20/05/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 261 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================

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 ?

========================================================== AMRABHAI MEGHABHAI ALGOTAR Versus VELJIBHAI KARSHANBHAI AHIR & 4 other(s) ========================================================== Appearance:

NISHIT A BHALODI(9597) for the Appellant(s) No. 1 MR NIKUNT K RAVAL(5558) for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1,3,4,5 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 20/05/2022

CAV JUDGMENT

1. The present first appeal is preferred by the claimant. Being

aggrieved and dissatisfied with the judgment and award passed in

Motor Accident Claim Petition No.1392 of 2009 by the Principal

District Judge and Motor Accident Claims Tribunal (Main), Rajkot on

8.10.2013, by which the Tribunal has awarded an amount of

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

compensation of Rs.98,240/- with 8% interest per annum from the

date of claim petition and the said amount can be recovered from

the opponent No. 5 as the Tribunal has exonerated the opponent

Nos. 1 to 4, more particularly the opponent No. 4, from their liability

to pay the amount of compensation. The present appeal is preferred

under Section 173 of the Motor Vehicles Act.

2. The brief facts are that it is the case of the claimant before

the Tribunal that on 12.4.2009, the claimant was going in a

Rickshaw bearing a registration No. GJ-13-V-690, at that point of

time, a car bearing registration No. GJ-1-HM-6816 and the Truck

bearing registration No. GJ-12-Y-9745 have met with an accident. It

is the say of the claimant in the claim petition that rickshaw dashed

from behind the Truck as the Truck has met with an accident with

the Santro Car. That the car was going at a full speed and trying to

over take the Truck from the wrong side and dashed with the Truck

and therefore the Truck has damaged at front part and accordingly

the accident has occurred due the negligence of the Santro car as

well as Truck, therefore, the claimant has received serious injuries

and the claim petition is filed to get the compensation. That, the

Tribunal has issued notice. The compensation to the tune of

Rs.2,50,000/- has awarded in the claim petition. That, the claimant

was earning Rs.3000/- per month by driving Rickshaw and he was

aged 27 years, at the time of the accident. That, as per the medical

certificate the claimant has received serious injuries and the claim

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

petition is filed to get the compensation. That, the Opponent Nos. 2

and 4 Insurance companies have filed written statement at Exh.17

and disputed the averments made in the claim petition. Thereafter,

the Tribunal has proceeded further by framing the issues for

determining at Exh.25 and thereafter, the claimant has deposed at

Exh.27 and has also produced documentary evidence like FIR at

Exh. 29, a copy of the Panchnama at Exh. 30, a copy of the RC Book

of the vehicle No. GJ-12-Y-9745 at Exh. 31, a copy of the RC Book of

the vehicle No. GJ-13-V-690 at Exh. 32, a copy of the Insurance -

Policy of the vehicle No. GJ-13-V-690 at Ehx. 33, a copy of the Injury

Certificate issued by Dr. Badal at Exh. 34 and 38, a copy of the

permanent disability issued by the Dr. Kothari at Exh. 41 and a copy

of the certificate issued of the Car No. GJ-1-HM-6816 at Exh. 50 and

other documents and the Insurance Company also produced letter

of Insurance Company and driving licence of the claimant at Exh.

53. Thereafter, the Tribunal has proceed further and found that the

Opponent Nos. 1 to 4 are not liable to pay the compensation and

only the Opponent No. 5, who is the owner of the Car bearing

registration No. GJ-1-HM-6816, who has found negligent in causing

the accident. At the time of the accident, the Santro Car loaded with

the bottles of liquor and therefore, the car was going at excessive

speed and dashed with the Truck and therefore, only the Car is

found negligent in causing the accident and therefore, the liability of

the car is held and therefore, being aggrieved with the amount of

compensation as well as exoneration of the Opponent Nos. 1 to 4

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

from the liability to pay the compensation, the present appeal is

preferred by the claimant to get the amount of compensation. The

learned advocate Mr. Nishit Bhalodi for the claimant- appellant has

placed reliance on the judgment of the Hon'ble Apex Court in case

of Attar Sinh reported in 2016 ACJ 1, by which he has said that the

liability of the car driver and the Truck driver was attributed in that

case, by the eye witness but the Tribunal was found that the liability

on the ground of that claimant had been set up case of negligent

against the driver of the Tempo allowed the appeal filed by the

tempo driver. The Hon'ble Apex Court found that the eye witness

observed that the case was at excessive speed but since the driver

of the tempo could not remove his vehicle from the way of the Car

so that both the driver were negligent equally for the accident. It is

the case of composite negligent, the claimant is entitled against

driver, owner and the Insurance Company jointly and severally. He

has further submitted that in view of the judgment, the claimant can

recover from the any of the driver but in the instant case, since the

driver has committed error by not holding opponent No. 4 -

Insurance Company liable to pay the compensation as risk of the

rickshaw driver was also covered by the Policy, which is issued by

the Insurance Company - respondent No. 4, where the premium is

paid towards risk of the driver of the rickshaw. He has pointed out

that from the policy issued in the name of the Veljibhai, where the

100% premium is charged by the Insurance - company. He has

submitted that written statement filed by the Opponent No. 2 - ICICI

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

Lombard - Insurance Company, which is being insurer of the

rickshaw of the claimant also and is Insurance Company for the

Truck and therefore, he has submitted that liability of the Opponent

Nos. 1 to 5 should be held by allowing appeal in view of the

Judgment delivered in case of Attar sinh and looking to the factual

aspect, Panchnama and deposition of the claimant that though

driver of the Car can also be more negligent but the driver of the

Truck should also held negligent and therefore, he submitted that

the finding of the Tribunal by only holding driver of the car is

erroneous and required to be interfered with. He further submitted

that the Tribunal has committed an error in awarding very meager

amount of Rs.98,240/- only which can be awarded mere looking to

the injuries received by the claimant and therefore, he has prayed

that the amount of compensation can be enhanced properly by

considering the settled law by various judgment of the Hon'ble

Supreme Court as well as Hon'ble High Court in awarding the

compensation to such claimant.

3. Per contra, learned advocate Mr. Nikunt Raval for the

opponent No. 2 - Insurance company has submitted that the

Tribunal has rightly discussed the aspect of the negligence in its

judgment in Para Nos. 7,8, 9 and 10. He further submitted that the

Santro car which has tried to overtake Truck and dashed with the

Truck on the wrong side of the front wheel and it is found from the

inspection of the Car that the car was loaded with bottles of liqour

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

and the Tribunal has rightly presumed that the Car was at a

excessive speed, from the FIR, Panchnama, there is no negligence

of the Truck or rickshaw can be found. He has further submitted that

though the driver of the Truck is not entered in to the witness box

but looking to the evidence which is produced by the claimant

himself, driver of the car can be held 100 % negligence in the facts

in the present case and therefore, Tribunal has not committed any

error in exonerating the opponent Nos. 1 to 4 from the liability to

pay the compensation. He has further submitted Tribunal has not

committed any error in awarding the compensation Rs.98,240/- with

8% interest per annum looking to the evidence available on record

to the Income, etc. and the Tribunal has rightly given the amount of

the compensation under the various Act and therefore, he has

prayed that the appeal is required to be dismissed.

4. 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

equability. 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

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

the claimants.

5. I have considered the rival submissions made by the

respective counsels of the parties, and also perused the record and

proceedings of the learned Trial Court and perused the impugned

judgment and order passed by the Tribunal. More particularly,

looking to the FIR and Panchnama it is true that the vehicle bearing

registration No. GJ-1-HM-6816 was going in a excessive speed while

trying to overtake the Truck, the Car dashed with the Truck, which is

also going, from the deposition of the claimant himself who was

examined at Exh.27 that such accident is occurred only due to the

Car, since the Truck and Car dashed with each other, the claimant's

rickshaw has also dashed with the Truck from the back side of the

Truck. The driver is not examined by any of the Insurance company

nor driver of the car. In my opinion, it is clear case of the

contributory negligence of the Truck also of course of the Car

attributed. The negligence of the Truck is also required to be

attributed to the extent of 25% and negligence of the Car can be

attributed to the extent of 75%. I am fully agree with the judgment

delivered in the case of Attar sinh (Supra), by which the case of the

claimant, who is driving the rickshaw no a negligent can be

attributed to the claimant looking to the fact that the accident

occurred due to the Car as well as Truck, the claimant who is going

behind the Truck meeting with the accident. There is no negligence

on the part of the claimant himself but the Truck being a heavy

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

vehicle is also required to take extra care and therefore, 25%

negligence is attributed to the Truck and 75% to the Car is required

to be considered. It is fruitful to refer to the one judgment, reported

in AIR 2019 SC 5719 in the case of Renu Rani Shrivastva Vs. New

India Assurance Co. Ltd., wherein the Hon'ble Apex Court has also

considered the contributory negligence, where the accident due to

the collision between the car and lorry, resulting the death of the

driver of the car but here in the case, something different but the

case of collision between car and rickshaw is dashed from behind, in

that case lorry came from the wrong side and collided with the Car,

in that case, the Hon'ble Supreme Court has find regarding the

contributory negligent is improper. In the present case, that the

finding of contributory negligence is not considered by the Tribunal

and the Tribunal has erroneously held driver of the car solely

negligent 100% and the driver of the Truck was not found at all

negligent by the Tribunal, which is improper as per the settled

position of the law and therefore, I found the driver of the truck is

25% negligent. Moreover, I also perused the policy of the rickshaw,

which is produced on record at Exh. 33, where the premium is

accepted by the Insurance company for the owner of the rickshaw

and therefore, to that extent opponent No. 4 - Insurance Company

of the rickshaw is also liable to pay the compensation to the tune of

Rs.2,00,000/- and therefore, I found that the Tribunal has committed

error in exonerating the Insurance - Company that means the

Opponent Nos. 2 and 4 paying the amount of compensation, now,

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

other limb of the argument of the claimant the quantum of the

awarded amount by the Tribunal, the Tribunal has believed that the

claimant has received injuries from which 6% disability is found in

view of the certificate issued at Exh. 41. The Tribunal has believed

income of the claimant of Rs.2800/- and the Tribunal has applied

multiplier of 15 for considering the future loss of Income, where the

multiplier of 18 is required to be considered as per the case of the

Sarla Varma and Pranay Sheti. The Tribunal has not committed any

error in considering the income of Rs.2800/- where the claimant is

aged 25 years old and he was driving a rickshaw and therefore, he

can be considered as a self employed person to that extent,

therefore, 40% addition in the future income should be considered

and therefore, income of Rs.2800/- per month by adding 40%

towards prospective income which comes to Rs.3920/-, It is required

to multiply by 6% so, it becomes Rs.235.2/- and Rs.2822 per annum.

It is required multiplier of 18 by considering the age of the claimant

is of 25 years and therefore, Rs.50,796/- should be awarded under

the head of future loss of Income. The Tribunal has awarded

Rs.30,240/- under the future loss which is erroneous. In view of the

above mentioned calculation for medical expenditure is asked by

the claimants is Rs.75,000/- and further considering the bills of

Rs.42,000/- which is produced on record and the Tribunal has

awarded Rs.44,000/- for medical treatment. That I found that it is

just and proper awarded by the Tribunal. The Tribunal has awarded

Rs.15000/- for pain, shock and suffering and looking to the injuries,

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

which should be at least Rs.20,000/- and Rs.2000/- for the special

diet, Rs.2000/- is awarded for attendance loss, Rs.2000/- is awarded

for transportation and therefore Rs.6000/- is awarded under the

three heads, which should be at least Rs.12,000/- looking to the

permanent disability received by the claimant and therefore

Rs.12000/- is added (Rs.4000/- under each head - for special diet,

attendance charges and transportation) and Rs.3000/- for actual

loss of income, which I found just and proper and now in view of the

above mentioned calculation the total amount of compensation is

required to be awarded is Rs.1,29,796/- whereas, the Tribunal has

awarded only Rs.98,240/- by impugned award and judgment and

there is enhancement of Rs.31,556/- in the awarded amount and

therefore additional amount of Rs.31,556/- with 8% interest and

total Rs.1,29,796/- is required to be paid to the claimant with 8%

interest per annum from the date of application by the opponent

Nos. 1 to 5 jointly and severaly and the opponent Nos. 2 and 4 who

are the Insurance -company of the rickshaw and truck is directed to

deposit the entire amount of Rs.1,29,796/- with 8% interest Per

Annum with proportionate cost and interest before the concerned

Tribunal within six weeks from the date of receipt of this order on

receipt of this amount the Tribunal shall pay the same amount to

the claimant by following due verification and procedure by account

payee cheque.

6. Accordingly, the appeal is allowed to the aforesaid extent, by

C/FA/261/2014 CAV JUDGMENT DATED: 20/05/2022

holding the appellant entitled for the compensation of Rs.1,29,796/-

which is opponent Nos. 1 to 5 is liable to pay jointly and severally.

No order as to costs.

7. Record and Proceedings be sent back to the concerned

Tribunal, forthwith.

(SANDEEP N. BHATT,J) prk