Gujarat High Court
Kantaben Hansrajbhai Baraiya vs Bhimabhai Lakhabhai Aagadh on 6 March, 2023
Bench: Mauna M. Bhatt
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4041 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
===============================================================
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 ?
===============================================================
KANTABEN HANSRAJBHAI BARAIYA & 1 other(s)
Versus
BHIMABHAI LAKHABHAI AAGADH
===============================================================
Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
SERVED BY AFFIX. (R) for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/03/2023
ORAL JUDGMENT
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
1. By this appeal under section 173 of the Motor Vehicles
Act, 1988 ("The Act" for short), the appellants have
challenged the judgment and award dated 1.10.2007, passed by
the Motor Accident Claims Tribunal (Aux.) & Presiding Officer,
7th F.T.C., Gondal, Camp at Dhoraji in MACP No.551 of 2000,
whereby learned Tribunal awarded compensation of
Rs.2,27,500/- with interest at the rate of 7.5% per annum from
the date of filing of the claim petition till its realization.
2. Brief facts are that, the legal heirs of deceased as original
claimants filed a claim petition being MACP No.551 of 2000
under Section 166 of the Act for the vehicular accident
occurred on 8.5.2000. It was case of the original claimants
that the accident took place near Dhoraji highway, while the
deceased was going driving his Ambassador Motorcar No. GJ-
7V-60 and at that time truck No. GJ-3V-9657, came in a rash
and negligent manner from the opposite direction and dashed
with Ambassador car. The deceased sustained grievous injuries
and succumbed to the same. The original claimants filed a
claim petition seeking compensation of Rs.8,00,000/-. It was
their case that the deceased was earning Rs.6,000 to 7,000
p.m. by driving his Ambassador car as a taxi and was 45 years
of age at the time of accident. The original claimants also
claimed Rs.60,000/- towards the damage caused to the car.
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
3. Upon filling of the said petition, notices came to be
issued to the opponents. 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:
(i) The Tribunal assessed the income of the deceased as
Rs.2,000/- p.m. 1/3rd amount was deducted towards personal
expenses and multiplier of 15 was made applicable. Thus, the
dependency loss was assessed at Rs.2,70,000/-. The Tribunal
further awarded Rs.20,000/- towards funeral expenses, loss of
estate and loss of consortium. Thus, the Tribunal awarded
total compensation of Rs.3,25,000/-.
(ii) In relation to negligence, the Tribunal held driver of
Ambassador car (the deceased) as 30% negligent and driver of
the truck as 70% negligent. The Tribunal further awarded
Rs.35,000/- towards damage caused to the Motorcar. Thus,
after deducting 30% negligence, the Tribunal in total awarded
compensation of Rs.2,27,500/- with interest @7.5 % p.a. from
the date of filing of claim petition till realization to the
original claimants.
4. Being aggrieved and dissatisfied by the said judgment and
award, the present appeal has been preferred by the appellants
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
- 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.
6. 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.
7. Mr. Tushar Sheth, learned advocate for the appellants
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
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
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.
7.1. In relation to income, he submitted that the driver of the
car was running his Ambassador car as Taxi and was earning
Rs.5,000/- p.m. and, therefore, the Tribunal is in error in
assessing the income of the deceased only at Rs.2,000/- p.m.
Further, 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 deceased was 45 years of age,
multiplier of 14 would be applicable instead of 13. The
claimant would also be entitled to consortium of Rs.80,000/-
(Rs.40,000 to each dependent). He requested for Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses. He fairly submitted that the amount of
compensation awarded Rs.35,000/- towards damage caused to
the Ambassador Motorcar is appropriate. He, thus, submitted
that the appeal of the appellants be allowed and judgment and
award dated 1.10.2007 may kindly be modified accordingly.
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
8. 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.
9. Having heard learned advocates for the respective parties
and upon re-appreciation of evidence on record, it is noticed
that the Tribunal in relation to compensation, assessed income
of Rs.2,000/- p.m., however, from the deposition of opponent
No.2 at Exh.29 it is noticed that deceased was the owner of
Ambassador car No. GJ-7V-60 and by plying the same as taxi
was earning Rs.5,000/- p.m. Further, after deducting expenses
of motor car he used to maintained his family. Nothing
contrary came on record even in the cross-examination.
Therefore, in my opinion, it would be appropriate if the
income of the deceased would be taken at Rs.2500/- p.m. As
the deceased was 45 years of age at the time of accident, 25%
is required to be awarded towards future prospective income.
1/3rd is to be deducted towards personal expenses and
multiplier of 14 would be applicable. Therefore, the
future/dependency loss would be assessed as under:
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
"Rs.2500 + 625 (25% prospective income) = Rs.3,125 - 1041
(1/3rd personal expenses) = Rs.2084 x 12(p.a.) = Rs.25,008 x
14 (multiplier) = Rs.3,50,112."
10. 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. 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%.
11. 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
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
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.
12. In view of the above facts and legal position, in my
opinion following compensation would be appropriate to arrive
at just compensation:
Loss of dependency Rs. 3,50,112/-
Consortium Rs.80,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Towards damage caused Rs.35,000/-
Total Rs.4,95,112/-
13. Therefore, following order is passed.
O R D E R
(i) Appeal is partly allowed.
(ii) The appellants - original claimants
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
would be entitled to total compensation of
Rs.4,95,112/-. As the Tribunal has awarded an
amount of Rs.2,27,500/-, the respondent -
Insurance Company shall deposit the balance
additional amount of compensation of
Rs.2,67,612/- (Rs.4,95,112 - Rs.2,27,500) 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 claimants are entitled for
the compensation and the same shall be
disbursed to the original claimants 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.
C/FA/4041/2010 JUDGMENT DATED: 06/03/2023
(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.
