Gujarat High Court
Rudabhai Jakhubhai Virda (Ahir) vs Ravabhai Ghelabhai Rajgor on 28 August, 2023
Bench: Ilesh J. Vora
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C/FA/2702/2008 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2702 of 2008
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RUDABHAI JAKHUBHAI VIRDA (AHIR)
Versus
RAVABHAI GHELABHAI RAJGOR & 2 other(s)
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Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Appellant(s) No.
1.1,1.2,1.3,1.4,1.5
UNSERVED EXPIRED (N) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
SERVED BY AFFIX. (R) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 28/08/2023
ORAL ORDER
1. This First Appeal has been preferred against the judgment
and award passed in MACP No.203 of 2000, dated
09.02.2007, whereby MACP (Aux.), Gandhidham at Kutch
awarded Rs.3,49,000/- for the injuries suffered by the
appellant in a road accident. Being dissatisfied with the
amount of compensation, this appeal for enhancement of
compensation has been filed by injured - Rudabhai Ahir,
who died during the pendency of the appeal, and claimants
being his legal heirs are continued with this appeal.
2. Facts and circumstances giving rise to file this appeal are
that on 23.03.2000, injured - Rudabhai Ahir, aged about
50 years old, was hit by the vehicle involved, as a result of
which, he sustained grievous injuries, resulted into
permanent partial disability. He filed a claim petition
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against the driver - owner and the New India Insurance
Company, with whom, vehicle was insured, claiming
Rs.6,00,000/- as the amount of compensation. After
considering the evidence on record, the claim Tribunal,
vide its judgment and award, held that injured - appellant
contributed to the occurrence of the alleged accident by his
negligence to the extent of 30% and after deducting 20%
from the total amount of compensation, the Tribunal
awarded Rs.3,49,000/- under the various heads.
3. This Court has heard Mr.Dhairyavan Bhatt and Mr.H.G.
Majmudar, learned advocates for the respective parties.
4. Mr.Bhatt, learned counsel sought review of the
compensation, mainly on the ground that while awarding
the amount under the future economic loss, the Tribunal
erred in taking into account Rs.2,000/- monthly income
and also did not consider the future prospective income.
He further submitted that the Tribunal erred in fastening
liability of the injured to the alleged incident to the extent
of 20% which findings are contrary to the evidence on
record and law.
5. On the other hand, Mr.Majmudar, learned counsel
appearing for the Insurance Company, has submitted that
the injured was crossing the road and did not take proper
care, towards his life, as a result of which, he sustained
the injuries, and therefore, the Tribunal has not committed
any error while deciding the issue of negligence. He has
further submitted that the Tribunal has awarded fair,
reasonable and just amount towards the various heads
and therefore, the amount of compensation does not
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require any modification and/or review.
6. Having heard learned counsels for the respective parties,
the issue arose for determination is (i) whether the findings
recorded by the Tribunal that the injured had contributed
to the occurrence of the alleged accident to the extent of
20% sustainable and (ii) whether the appellants have made
out a case for enhancement in the amount of
compensation.
7. Before the Tribunal, the injured himself was examined and
considering the contents of the FIR, the Tribunal came to
the conclusion that the injured was crossing the road and
in that process, he failed to take care of his life. The
findings of the Tribunal is apparently unsustainable. The
informant who is distance relative of the injured was not
eyewitness of the incident and on hearsay, he disclosed the
facts that the injured while crossing the road, sustained
the injuries. Thus, therefore, on the factual aspects, the
findings of facts in relation to the crossing of the road by
the injured are without any basis and evidence on record.
Before the Tribunal, the driver of the vehicle was not
stepped into witness box nor he was examined by the
either owner or insurance company to prove the factum of
negligence. In such circumstances, when the injured was
on his foot, he cannot be held that he contributed to the
occurrence of the alleged incident. Thus, once it is shown
that the accident arose out of use of motor vehicle
question, the burden is on the driver - owner to prove that
he took all reasonable care and precaution for avoiding the
said accident. Reference can be made to the decision of
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the Division Bench of this High Court (New India
Assurance Company Limited Vs. Takhuben Raghabhai and
another, 2008 ACJ 989), wherein after referring the
various judgments of the Apex Court and considering the
concempt of strict liability as well as Rule in Rylands Vs.
Fletcher, it was observed that in claim petition under
Section 166/168, the Rule of strict liability would apply
where the claim petition is made for compensation for
death of or injury to a pedestrian or bystander of the road
and in that case, the burden is on the defendant(s) to plead
and prove that the accident was caused by any negligence
act of pedestrian/bystander.
8. In light of the settled legal position of law and applying to
the same to the facts of present case, this Court is of the
considered view that the respondents failed to discharge
their burden, as discussed hereinabove, and therefore, the
Tribunal fell in error fixing the contributory negligence of
the injured to the extent of 20% and the same is not
sustainable in law.
9. On the perusal of the amount of compensation awarded
under various heads, this Court is of the considered view
that the Tribunal has taken care while granting a just and
equitable amount and therefore, the claimants are failed to
make out the case for enhancement in the amount of
compensation.
10. For the aforestated reasons, the appeal is partly allowed.
The findings on the issue of contributed negligence is set
aside. The Insurance Company is directed to pay the
amount Rs.87,200/- which was deducted from the
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awarded amount by the Tribunal to the claimants herein
with the interest at the rate of 7.5%. Decree be drawn
accordingly. The Tribunal is at liberty to disburse the
amount and pay the same to the claimants and shall not
invest the amount in the FDR.
(ILESH J. VORA,J)
Rakesh
