Burhanbhai Abdulrahim Shaikh ... vs Maksudbhai Usmangani ...
2023 Latest Caselaw 3538 Guj

     C/FA/464/2013                              JUDGMENT DATED: 28/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 464 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO

==========================================================

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 ?

==========================================================
            BURHANBHAI ABDULRAHIM SHAIKH (MORAVALA)
                            Versus
           MAKSUDBHAI USMANGANI KHEDAPAVALA & 2 other(s)
==========================================================
Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                            Date : 28/04/2023

                           ORAL JUDGMENT

1. Though served, no one has appeared for the

respondent Nos.1 and 2.

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

2. This appeal has been preferred by the appellant -

original claimant under section 173 of the Motor Vehicles

Act ("the Act" for short) being aggrieved and dissatisfied by

the judgment and award passed by the learned Motor

Accident Claims Tribunal (Aux), Panchmahal @ Godhra in

Motor Accident Claims Petition No.1525 of 2005 on

29.1.2008.

3. The brief facts of the case that emerge from the

record are as under.

3.1 That on 14.5.2005 the claimant and his minor

son Shehjad were going as pillion riders on Hero Honda

Motor Cycle No.GJ 17 5264 for attending a marriage

ceremony at village Godhibda. The motor cycle was being

driven by one Faruk Gulam Gatli who was driving the motor

cycle on the correct side of the road and when they reached

near village Rinchhdi, the opponent No.1 came driving

Truck No.GJ 7 Y 347 in a rash and negligent manner and

came on the wrong side of the road and dashed the truck

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

with the motor cycle, as a result of which, both the pillion

riders sustained injuries and minor Shehjad succumbed to

his injuries. A complaint at I CR No.59 of 2005 was

registered with Santrampur Police Station. The respondent

No.2 is the owner of Truck No.GJ 7 Y 347 and the

respondent No.3 is the insurance company of the truck

involved in the accident.

4. The claimant filed the claim petition against the

driver, owner and insurance company of the truck but did

not join the driver, owner and insurance company of the

motor cycle that was involved in the accident and the

notices were duly served to all the respondents, but the

respondent Nos.1 and 2 have remained absent. The

respondent No.3 insurance company appeared before the

learned Tribunal and filed their written statement at Exhs.9

and 11 and have specifically denied all the contents of the

claim petition.

5. The learned Tribunal, after having considered the

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

evidence on record, held all the opponents including the

driver, owner and insurance company of the motor cycle

jointly and severally liable to pay the amount of

compensation and considered the negligence of the truck

driver at 80% and as the driver, owner and insurance

company of the motor cycle were not joined as party to the

petition, the learned Tribunal held that the claimant was

entitled to only 80% amount of the total compensation from

the driver, owner and insurance company of the Truck

No.GJ 7 Y 347 and accordingly awarded the amount of

Rs.1,00,000/- but deducted 20% and held that the claimant

is entitled to Rs.80,000/- under all the available heads with

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

realization.

6. Being aggrieved and dissatisfied by the aforesaid

award, the appellant - original claimant has approached

this Court by way of this appeal.

7. I have heard learned advocate Mr.M.A.Kharadi for

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

the appellant - original claimant and learned advocate for

Mr.Palak Thakkar for the respondent No.3. Though served,

the respondent Nos.1 and 2 have not appeared.

8. It is mainly contended by Mr.M.A.Kharadi,

learned advocate appearing for the appellant - original

claimant that the learned Tribunal has erred in calculating

the amount of negligence of the truck and has also granted

meager amount of Rs.80,000/- as compensation for the

death of the minor Shehjad. That the learned Tribunal

ought to have considered the decision of the Honourable

Supreme Court in the case of Kishan Gopal Vs Lala,

reported in (2014) 1 SCC 244 and ought to have granted

Rs.5,00,000/- as compensation for the death of the minor.

Even otherwise, the learned Tribunal ought to have

considered the notional income of the minor at Rs.30,000/-

and ought to have considered the multiplier of 16 as the age

of the father of the deceased minor was 32 years and as per

the principles laid down in the case of Sarla Verma and

others Vs Delhi Transport Corporation and another,

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

reported in (2009) 6 SCC 121 just and proper

compensation ought to have been awarded, but the learned

Tribunal has erred and has awarded a meager amount of

Rs.80,000/- which must be enhanced as per the settled

principles of law.

9. On the other-hand, Mr.Palak Thakkar, learned

advocate for the respondent No.3 - insurance company has

submitted that the award of the learned Tribunal is just and

proper and no interference is required and hence, the

appeal of the appellant - original claimant must be

dismissed with costs.

10. I have gone through the record and proceedings

of the present appeal and there is no dispute with regard to

the occurrence of the accident and the fact that minor

deceased Shehjad was travelling as a pillion rider on the

Motor Cycle No.GJ 17 5264 which was being driven by one

Faruk Gulam. Gatli That the motor cycle and Truck No.GJ 7

Y 347 had an accident and the driver of Truck No.GJ 7 Y

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

347 came on the wrong side, driving his truck in a rash and

negligent manner and dashed with the motor cycle and

minor Shehjad sustained serious injuries and succumbed to

his injuries.

11. The learned Tribunal has considered the

negligence of the truck driver upto 80% and also considered

the negligence of driver of the motor cycle upto 20%. But, it

is pertinent to note that even though the claimant - the

father of the minor deceased Shehjad was riding as pillion

rider and was aware of the details of the driver, owner and

the insurance company of the Motor Cycle No.GJ 17 5264

have not joined them as party to the claim petition. That as

they have not been joined as party, the learned Tribunal has

held that the claimant is not entitled to 20% amount of

compensation and has ordered 80% of the awarded amount

to be paid by the driver, owner and the insurance company

of the Truck No.GJ 7 Y 347.

12. As far as the amount of compensation is

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

concerned, the learned Tribunal has calculated the notional

income of the minor at Rs.15,000/- per annum and after

deducting 1/3rd towards personal expenses, calculated

dependency benefits of Rs.10,000/- per annum and used

multiplier of 15, but subsequently held that the claimant is

entitled to only Rs.1,00,000/- and deducted the amount of

negligence of the motor cycle of 20% and awarded

Rs.80,000/- as compensation. As per the judgment of the

Honourable Supreme Court in the case of Kishan Gopal

(supra) wherein it is held that it is just and reasonable to

take the notional income of the minor at Rs.30,000/- and

the multiplier of the claimant must be considered applying

the legal principles laid down in the case of Sarla Verma

(supra) and compensation must be awarded accordingly.

Considering the settled principles, the learned Tribunal has

awarded a meager amount of Rs.80,000/- which is

erroneous and it would be just and reasonable as per the

judgment of the Honourable Supreme Court in Kishan

Gopal (supra) to take the notional income of the minor at

Rs.30,000/- and as per the judgment of the Honourable

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

Supreme Court in the case of Sarla Verma (supra), use of

multiplier of 16 would be just and proper as the claimant

who is the sole dependent of the minor deceased Shehjad

was aged 32 years on the date of the accident and loss of

dependency benefit is Rs.4,80,000/-. The claimant can be

granted an amount of Rs.20,000/- under the functional

heads and if the claimant is granted an amount of

Rs.5,00,000/- as lumpsum compensation, it would be just

and reasonable. The learned Tribunal has rightly deducted

negligence of 20% of the motor cycle from the awarded

amount as the claimant had not joined the driver, owner

and insurance company of the motor cycle as party to the

petition. In these circumstances, it is held that the

claimant is entitled to Rs.5,00,000/- minus 20% negligence

of the motor cycle involved in the accident, i.e. the claimant

is entitled to an amount of Rs.4,00,000/- out of which the

learned Tribunal has awarded the amount of Rs.80,000/-

and the claimant is entitled to the enhanced amount of

Rs.3,20,000/-.

C/FA/464/2013 JUDGMENT DATED: 28/04/2023

13. In view of the aforesaid discussion, First Appeal

No.464 of 2013 filed by the appellant - original claimant is

allowed. The impugned judgment and award passed by the

learned Motor Accident Claims Tribunal (Aux), Panchmahal

@ Godhra in Motor Accident Claims Petition No.1525 of

2005 is hereby modified to the aforesaid extent. The

respondent No.3 is hereby directed to deposit the enhanced

amount of Rs.3,20,000/- before the learned Tribunal within

a period of 12 weeks from the date of receipt of the order

with interest at the rate of 6%. As the original matter is of

2005 and the First Appeal is of the year 2013, the learned

Tribunal is directed to disburse the said enhanced amount

to the claimant after due verification through RTGS or

NEFT. Record and Proceedings be sent back to the

concerned learned Tribunal forthwith. No costs.

(S. V. PINTO,J) H.M. PATHAN