Vijaybhai Manharlal Kamdar vs Rameshchandra M Savjiyani
2023 Latest Caselaw 7749 Guj

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       C/FA/1684/2010                                    ORDER DATED: 19/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1684 of 2010

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                      VIJAYBHAI MANHARLAL KAMDAR
                                 Versus
                  RAMESHCHANDRA M SAVJIYANI & 1 other(s)
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 19/10/2023
                       ORAL ORDER

1. This enhancement appeal at the instance of original claimant, is directed against the judgment and award dated 09.09.2009 passed in MACP No.632 of 2001 by which the learned Claim Tribunal at Rajkot has awarded amount of compensation of Rs.35,300/- together interest and cost.

2. Brief facts are that on 28.02.2001, the claimant appellant met with an accident when his bike upon which he was riding dashed with motorcar. The claimant sustained a fracture injuries resulted into permanent partial disablement. The FIR came to be filed against the driver of the car and finally he was chargesheeted. In these backgrounds, a claim petition was filed before Rajkot Tribunal claiming the amount of Rs.2,00,000/- against the owner and insurance company of the car.

3. The learned Tribunal, vide its judgment and award dated 09.09.2009, by allowing the petition, assessed negligence

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50% on the part of the claimant appellant and the driver of the car held negligent 50% and according to the Tribunal, both the drivers were responsible in causing the said accident. So far as quantum is concerned, the Tribunal, after reducing 50%, has awarded Rs.35,300/- with cost and interest.

4. Being aggrieved with and dissatisfied by the award, the appellant has preferred present appeal.

5. Mr.Pratik Jasani, learned counsel appearing for the appellant herein has submitted that the driver of the car remained absent before the Trial Court nor he stepped into witness box to explain the manner of the accident and therefore, the evidence of the appellant on the aspect of negligence alleged against the driver of the car ought to have believed by the Tribunal. That while deciding the issue of negligence, the learned Tribunal has relied on the police statement which cannot be permitted in eye of law and therefore, the issue of negligence decided by the Tribunal is contrary to the evidence and settled principle of law. That while awarding the amount of loss of future earning, the multiplier having not been properly considered and therefore, the quantum deserves to be modified accordingly.

6. On the other hand, Mr.Nagesh Sood, learned advocate for the insurance company, supported the judgment and award and contended that there was positive evidence before the Tribunal that the case is head on collision and thus, the negligence assessed on the part of the claimant appellant does not require modification.

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7. Having heard learned counsels for the respective parties, the Tribunal is of the considered view that the claimant vide Exh.28, had categorically stated that the driver of the car was at fault and due to his inability to control the car, the alleged accident was having took place. In the cross examination, he conceded that the accident has occurred at the middle of the cross road. It is no doubt true that the FIR and chargesheet came to be filed against the car driver. Car driver was not examined by the insurance company nor he stepped into witness box to substantiate the allegations of negligence made by the appellant herein. Thus, therefore, in over all view of the matter, there is no admission that there was a head on collision. In such circumstances, the findings of the Tribunal, on the aspect of negligence, seem to be contrary to the evidence on record and settled principle of law. Thus, the issue of negligence requires modification. The claimant appellant held negligence 25% and negligence on the part of the car driver fixed to the extent of 75% and in that proportionate, the issue of negligence is answered accordingly.

8. So far as quantum part is concerned, the Tribunal has awarded Rs.29,040/- under loss of future earning, Rs.10,000/- under pain, shock and suffering, Rs.19,500/- and Rs.6,000/- awarded under medical expenses and attended loss, etc., and the total Rs.70,540/- awarded together with interest and cost. The amount awarded under the various heads are reasonable and just. However, considering age of the claimant, the multiplier 13 will be applicable and therefore, while awarding the amount under

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the future loss, the Tribunal has not applied a proper multiplier and accordingly, the amount is modified as under:

          Loss of future earning -      Rs.34,320/-
                                        (Rs.26,040 x 13)

9. For the reasons recorded, the appeal is allowed in part.

The appellant is entitled for the enhanced amount of Rs.21,565/-. The enhanced amount shall carry interest at the rate of 6% from the date of claim petition. R & P shall be transmitted to the Tribunal concerned. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh