Ramesh Vaghjibhai Jethva vs Bhimabhai Lakhabhai Aagadh
2023 Latest Caselaw 2075 Guj

      C/FA/4042/2010                                  JUDGMENT DATED: 06/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 4042 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 ?

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                       RAMESH VAGHJIBHAI JETHVA & 1 other(s)
                                     Versus
                          BHIMABHAI LAKHABHAI AAGADH
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Appearance:
MR TUSHAR L SHETH (3920) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,3
SERVED BY AFFIX. (R) for the Defendant(s) No. 2
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                  Date : 06/03/2023
                                  ORAL JUDGMENT

1. By this appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short), original claimant as appellant has challenged the judgment and award dated 1.10.2007, passed by the

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

Motor Accident Claims Tribunal (Aux.) & Presiding Officer, 7 th F.T.C. Gondal Camp at Dhoraji, in MACP No. 621 of 2000, whereby learned Tribunal awarded compensation of Rs.35,000/- along with interest @7.5% p.a. from the date of filing of the claim petition till its realisation.

2. Brief facts are that, for the vehicular accident occurred on 8.5.2000, the original claimant filed claim petition under section 166 of the Act, being MACP No.621 of 2000. It was case of the original claimant that the accident took place near Dhoraji High way while the claimant was going in an Ambassador Motorcar driven by Hansarj Bariaya. The Ambassador Motorcar No. GJ-7V- 60 dashed with the truck No. GJ-3V-9657 because of which, the driver of the car died on the spot and the present appellant received bodily injuries. It was case of the original claimant- appellant that the accident occurred on account of sole negligence on the part of the truck driver and the bodily injuries sustained on the left wrist resulted into permanent disablement. Therefore, the appellant filed claim petition seeking compensation of Rs.2,00,000/-. It was case of the appellant before the Tribunal that at the time of accident, the appellant was earning Rs.3,000/- p.m.

3. Upon claim petition being filed, the notices came to be issued. Upon service of notice, the opponents appeared and filed their respective written statements. The Tribunal after hearing the parties and upon appreciation of evidence on record held as under:

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

(i) In relation to negligence, the Tribunal held driver of Ambassador car (the deceased) as 30% negligent and driver of the truck as 70% negligent.

(ii) The Tribunal assessed income of the appellant at Rs.2,000/- p.m. and calculated Rs.24,000/- p.a. 10% disablement was considered and after applying multiplier of 15, the Tribunal awarded dependency loss of Rs.33,000/-. The Tribunal further awarded Rs.5,000/- towards pain, shock and sufferings, Rs.3,000/- towards medical expenses, Rs.2,000/- for transportation charges, Rs.2,000/- for attendant charges and Rs.2,000/- for food and nutrition. Thus, the Tribunal awarded total compensation of Rs.50,000/-. As the Tribunal held driver of the Ambassador Motorcar negligent to the extent of 30% after deducting the said negligence, the Tribunal awarded compensation of Rs.35,000/- to the original claimant-appellant.

4. Being aggrieved and dissatisfied by the said judgment and award, the present appeal has been preferred by the appellants - original claimants.

5. Heard Mr. Tushar Sheth, learned advocate for the appellants

- original claimants and Mr. H.G.Mazmudar, learned advocate for respondent No.3 - Insurance Company of Truck. As liability has not been denied, presence of other respondents is not necessary and is dispensed with. Record and Proceedings is secured and placed before this Court for perusal.

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

6. Mr. Tushar Sheth, learned advocate for the appellant submitted that the Tribunal erred in assessing the negligence. He submitted that the driver of Ambassador Motorcar was not at all negligent as he was going in the right direction of the road with moderate speed and the truck came from the opposite direction and dashed with Ambassador Motorcar resulting into accident. In support of his submission, he relied upon the F.I.R. at Exh.31 and panchnama at Exh.32 and submitted that from the panchnama, it is evident that the Ambassador car was going on right direction and by overtaking other vehicle, the truck came on the wrong side and dashed with the Motorcar. Therefore, 30% negligence is wrongly attributed to the driver of the Ambassador car. He submitted that the driver of truck was sole negligent for occurrence of the accident and, therefore, the judgment and award of the Tribunal is erroneous to that extent. He further submitted that even the truck driver was not examined which also supports his submission that the driver of truck was sole negligent for the occurrence of the said accident.

6.1. In relation to income, he submitted that the appellant by doing Embroidery work was earning Rs.3,000/- p.m. For the kind of work the appellant was doing, it would be difficult to produce any evidence in support of the same. He further submitted that prospective income was not awarded by the Tribunal. In support of his submission, he relied upon the decision of Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680. As the

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

deceased was 35 years of age multiplier of 16 would be applicable instead of 15. The appellant would also be entitled to higher amount towards pain, shock and sufferings as because of the injuries sustained he could not work for a longer period and as he was doing embroidery work there is reduction in capacity to work. He also submitted to enhance the compensation towards transportation charges and attendant charges. He thus, submitted to allow his appeal and enhance the compensation accordingly.

7. On the other hand, learned advocate Mr. H.G. Mazmudar for respondent No.3 (Insurance Company of Truck) supported the judgment and awarded dated 1.10.2007 and submitted that as the Tribunal had passed the order based on evidence on record, no interference is called for. He, thus, submitted that the appeal of the appellants being meritless be dismissed.

8. Having heard learned advocates for the respective parties and upon re-appreciation of evidence on record, in relation to negligence, it is noticed from the panchnama that the deceased was driving his Ambassador Motorcar on correct side of the road with the moderate speed. Considering the damage caused to the Ambassador Car, it is clear that the truck came from the opposite direction in a full speed and dashed with the Ambassador car of the deceased resulting into accident. Further, from the panchnama and F.I.R., it is evident that the Ambassador car was going on the right side of the road and by overtaking the ongoing vehicle (truck), the Truck came on wrong side and dashed with Ambassador Car.

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

Therefore, considering the overall circumstances, in my opinion the driver of truck was 100% negligent for occurrence of the said accident and, therefore, the Tribunal is in error in holding that the driver of the Ambassador car was negligent to the extent of 30%.

9. Even in the FIR, the allegation was made that the truck came from the opposite direction in rash and negligent manner and while overtaking the ongoing truck it dashed with the Motorcar. Moreover, the driver of the truck had not entered into the witness box and, therefore, also the Tribunal is in error in holding the driver of the Ambassador car was negligent to the extent of 30%. Therefore, in my opinion, the driver of the truck was sole negligent for the occurrence of the accident. As the driver of the truck is held negligent to the extent of 100%, no amount is required to be deducted from the compensation awarded.

10. In relation to compensation, income of the appellant was assessed at Rs.2000/- p.m. It is not in dispute that the appellant failed in producing any evidence in support of his income. Further in the cross-examination, the appellant had admitted that he had studied till 7th Standard and was earning Rs.1,000/- p.m. by doing Embroidery work. Considering the education qualification and the deposition of the appellant, in my opinion the income assessed by the Tribunal is appropriate and does not require any interference. However, the appellant would be entitled to 40% rise towards future prospective income on account of his permanent partial disablement to the extent of 10%. As the appellant was 35 years of

C/FA/4042/2010 JUDGMENT DATED: 06/03/2023

age multiplier of 16 would be applicable. Therefore, the dependency loss would be assessed as under:

"Rs.2000 + 800 (40% future prospective income) = Rs.2800 x 10% (disability) = Rs.280 x 12 (p.a.) = Rs.3360 x 16 (multiplier) = Rs.53,760/-"

11. As the appellant was to undergo treatment for a considerable time for no fault of him, in my opinion, the amount of Rs.10,000/- would be appropriate towards pain, shock and sufferings and Rs.15,000/- for medical expenses, transportation charges and attendant charges and food nutrition. Thus, the appellant would be entitled for the total compensation as under:

Dependency loss                                                                   Rs.53,760/-
Pain, Shock and Sufferings                                                        Rs.10,000/-
Medical expenses, transportation charges,                                         Rs.15,000/-
attendant charges and Food nutrition
Total                                                                             Rs.78,760/-


12.     Therefore, following order is passed.


                                         O R D E R


             (i)             Appeal is partly allowed.
             (ii)            The appellant - original claimant would

be entitled to total compensation of Rs.78,760/-.

             As        the    Tribunal   has    awarded an amount of




      C/FA/4042/2010                                        JUDGMENT DATED: 06/03/2023

Rs.35,000/-, the respondent - Insurance Company shall deposit the balance additional amount of compensation of Rs.43,760/- (Rs.78,760 -

Rs.35,000) with 6% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order.

(iii) The original claimant is entitled for the compensation and the same shall be disbursed to the original claimant through RTGS, after due verification.

(iv) Deficit Court Fees, if any, is to be paid by the appellants within a period of four weeks, failing which the amount shall be recovered from the amount to be deposited by the Insurance Company.

(v) The rest of the judgment and award passed by the learned Tribunal shall remained unaltered.

            (vi)        Registry is directed to transmit back the
            Record       and    Proceedings     of   the     case     to     the

concerned Tribunal forthwith. However, there shall be no order as to costs.

(MAUNA M. BHATT,J) NAIR SMITA V.