Pradeepkumar Vasantlal Shah ... vs Natvarlal Babulal Modi
2023 Latest Caselaw 6275 Guj

                                                                                 NEUTRAL CITATION




       C/FA/3695/2008                             ORDER DATED: 25/08/2023

                                                                                  undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3695 of 2008

==========================================================
     PRADEEPKUMAR VASANTLAL SHAH SINCE DECD.HEIRS AND L.RS.
                            Versus
               NATVARLAL BABULAL MODI & 1 other(s)
==========================================================
Appearance:
MR AS ASTHAVADI(3698) for the Appellant(s) No. 1,1.1,1.2,1.3
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
==========================================================
     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 25/08/2023
                       ORAL ORDER

1. Being dissatisfied with the quantum of compensation and

contributory negligence held by the 4th Motor Accident

Claim Tribunal, Ahmedabad, the injured claimant has filed

present appeal under Section 173 of the Motor Vehicle Act,

1988, seeking enhancement of compensation.

2. Facts and circumstances giving rise to appeal are that the

appellant being auto rickshaw driver and owner of the

vehicle met with an accident, allegedly caused by S.T. Bus,

as a result of which, he sustained grievous injuries

resulted into permanent partial disablement. The claim

was contested by the S.T. Corporation and driver of the

bus stepped into witness box and had denied negligence on

his part. The claim Tribunal vide its award and judgment

NEUTRAL CITATION

C/FA/3695/2008 ORDER DATED: 25/08/2023

undefined

dated 29.02.2004, partly allowed the claim petition and

awarded Rs.6,000/-, and upto 25% the contributory

negligence was held against the appellant herein.

3. Mr.A.S. Asthavadi, learned advocate for the appellant has

submitted that the Tribunal has not properly appreciated

the evidence of the appellant and without application of

mind, the contributory negligence upto 25% was being

fixed against the appellant. He has further submitted that

despite the sufficient medical evidence on record, by

ignoring the same, the Tribunal awarded meager amount

upto Rs.6,000/- which is against the settled principle of

just compensation.

4. On the other hand, learned counsel Mr.Meena appearing

for and on behalf of S.T. Corporation, submitted that the

Tribunal was justified in passing the amount of award and

fixing the liability of the appellant, which is based on the

evidence on record and the same is not required to be

interfered with.

5. Having heard learned counsels for the respective parties

and on perusal of the impugned order, the issue arise for

determination is whether the Tribunal is justified in

passing the judgment and award fixing contributory

NEUTRAL CITATION

C/FA/3695/2008 ORDER DATED: 25/08/2023

undefined

negligence upto 25% on the appellant herein.

6. It is the contention that the Tribunal ought not to have

fixed contributory negligence upto 25% to the appellant

injured. Upon careful reading of the impugned award and

judgment, it appears that the appellant was examined at

Exh.31 before the Tribunal, whereas the driver of the bus

was examined at Exh.26. The learned Tribunal after

analyzing of the oral as well as documentary evidence, in

Para-9 of the award held that after seeing the S.T. Bus, the

appellant did not stop his rickshaw which reflects his

carelessness in driving the vehicle. The Tribunal, after

considering the size of the opposite vehicle and the site

panchnama, held liable both the drivers of the vehicle in

proportionate 25-75. This Court is of the considered view

that the findings on the issue of negligence does not

require interference as the Tribunal has rightly appreciated

the oral as well as documentary evidence while fixing the

liability and findings cannot be termed as perverse or

arbitrary.

7. The second issue raised is that the amount of Rs.6,000/-

are not just and proper. On the issue, this Court has

considered the medical certificate issued by V.S. Hospital

NEUTRAL CITATION

C/FA/3695/2008 ORDER DATED: 25/08/2023

undefined

and disability certificate issued by Dr.Aditya Upadhyay.

The injury certificate at Exh.23 shows that the appellant

did not have suffered any fracture injury and there is a

simple injury found by the treating doctor. Despite of these

facts, without any fracture injury sustained by the injured,

the disability certificate was being issued by Dr.Upadhyay.

In these circumstances, the Tribunal has rightly awarded

Rs.6,000/- towards the total amount of compensation and

has not committed any error either on facts or on settled

principle of awarding just compensation.

8. For the aforestated reasons, this Court is of the considered

view that the Tribunal was justified in fixing negligence on

the part of the appellant and awarding the amount of

Rs.6,000/- as it is a case of simple injury. Thus, no case is

made out to interfere with the award impugned.

9. Resultently, the appeal fails and is hereby dismissed.

Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh