Gujarat High Court
Sureshbhai Lalabhai Patel vs Kantibhai Sardarbhai Masar ... on 15 September, 2022
Bench: Hemant M. Prachchhak
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 960 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
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 ?
==========================================================
SURESHBHAI LALABHAI PATEL
Versus
KANTIBHAI SARDARBHAI MASAR (DELETED AS PER THE ORDER
PASSED UNDER EXH. 16) & 2 other(s)
==========================================================
Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 15/09/2022
ORAL JUDGMENT
1. The present appeal is filed by the appellant -
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
original claimant for enhancement of compensation awarded
by learned Motor Accident Claims Tribunal (Aux.) and
Presiding Officer, Fast Track Court, Kheda at Nadiad in
Motor Accident Claims Petition No.1602 of 1998 vide order
dated 13.5.2010 whereby learned Tribunal has awarded the
amount of Rs.1,75,178/- after considering contributory
negligence of the injured - original claimant at 25%.
2. I have Mr.Ashok Prajapati, learned advocate for
the appellant - original claimant, Mr.Rathin Raval, learned
advocate for respondent No.3 - insurance company. I have
also perused the Record and Proceedings and the material
made available to this Court.
3. Mr.Prajapati, learned advocate for the appellant -
original claimant has contended that it is a case of personal
injury and the injured has sustained permanent partial
disability at 19% body as a whole as per the disability
certificate and evidence at Exh.52 and also the purshis filed
by the appellant - original claimant. It is further contended
that learned Tribunal has considered the permanent partial
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
disability at 19%. It is further contended that the present
appeal is filed by the appellant - original claimant on
account of negligence considered by learned Tribunal which
is against the facts of the present case as well as against the
evidence on record. It is further contended that learned
Tribunal has committed an error while evaluating the
evidence of the Doctor. It is further contended that while
calculating the amount of compensation, learned Tribunal
has committed an error by considering the income of
injured - original claimant. It is further contended that
learned Tribunal has not properly applied multiplier.
Mr.Prajapati has also urged that all other grounds urged in
the memo of the appeal may also be taken into
consideration. Lastly, Mr.Prajapati requested this Court to
allow the present appeal.
4. Per contra, Mr.Rathin Raval, learned advocate
appearing for respondent No.3 - Insurance Company has
contended that learned Tribunal has rightly determined
income of the appellant - original claimant. He contended
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
that learned has rightly considered contributory negligence
on the part of the injured claimant and therefore, no
interference is called for in the impugned judgment and
award delivered by learned Tribunal.
5. I have given my thoughtful consideration to the
submissions made by learned advocates for both the parties
and also considered the material made available to this
Court.
6. The short issue involved in the present appeal is
whether learned Tribunal has rightly considered the
panchnama of place of occurrence and come to the
conclusion for contributory negligence ? I answer
accordingly.
7. Considering the evidence of the original claimant
as well as considering the panchnama of place of
occurrence, learned Tribunal has rightly considered the
issue of negligence and came to the conclusion that there is
25% contributory negligence on the part of the injured -
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
original claimant since he was driving two wheelers at night
and considering the width of the road, the claimant has not
taken proper care and therefore, there was head on collision
between Tempo and Scooter and therefore, learned Tribunal
has considered the said issue in its true and proper spirit
after evaluating the evidence of the injured himself and
other documentary evidence on record.
8. So far as quantum of compensation is concerned,
just quantum of compensation is to be awarded as per the
settled principles of law enunciated by the Honourable Apex
Court in the case of Sarla Verma and others Vs.Delhi
Transport Corporation and another, reported in (2009) 6
SCC 121 as well as National Insurance Company Vs
Pranay Shetty, reported in (2017) ACJ 2700. In the
instant case, learned Tribunal has committed an error and
therefore, impugned judgment and award is modified to the
extent that the original claimant is entitled to compensation
i.e. Rs.2,37,920/-. Out of the said amount, the amount of
25% negligence is to be deducted i.e. Rs.50,688/-. So, the
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
amount of compensation would come to Rs.2,87,232/-.
Learned Tribunal has awarded the amount of
Rs.1,75,178/-, so, the appellant - original claimant is
entitled to receive the additional amount of compensation of
Rs.1,12,054/- in addition to the amount of Rs.1,75,178/-
already awarded by learned Tribunal at the rate of 6%
interest from the date of application till final realization of
the award.
9. In view of the foregoing discussion, the appeal is
allowed in part. The impugned judgment and award dated
13.5.2010 passed by learned Motor Accident Claims
Tribunal (Aux), Kheda at Nadiad in Motor Accident Claims
Petition No.1602 of 1998 is modified to the extent indicated
above. The contributory negligence considered by learned
Tribunal to the extent of 19% is modified to the extent of
25%. So far as quantum of compensation is concerned, the
appellant - original claimant is entitled to recover
Rs.1,12,054/- in addition to the amount awarded by
learned Tribunal at Rs.1,75,178/- along with 6% interest.
C/FA/960/2011 JUDGMENT DATED: 15/09/2022
The enhanced amount of compensation along with 6%
interest is to be deposited by the Insurance Company before
the learned Tribunal with a period of eight weeks from
today. Thereafter, learned Tribunal shall disburse the said
amount in favour of the appellant - original claimant after
due verification of the appellant - original claimant as well
as bank details through RTGS. Record and Proceedings, if
any, be sent back forthwith to the concerned Tribunal. No
order as to costs.
(HEMANT M. PRACHCHHAK,J)
H.M. PATHAN
