Gujarat High Court
Shailashben Kamleshbhai Patel vs Jashubhai Fatehsinh Chavda on 18 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/4871/2008 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4871 of 2008
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SHAILASHBEN KAMLESHBHAI PATEL & 4 other(s)
Versus
JASHUBHAI FATEHSINH CHAVDA, & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
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. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 18/09/2023
ORAL ORDER
1. Being dissatisfied with the quantum of compensation
awarded by the tribunal at Vadodara (MACP No.326 of
1997), the original claimants have preferred the present
appeal seeking enhancement of compensation.
2. Deceased Kamlesh Patel aged about 28 years old died in
a road accident. On 18.11.1996, the bike of the deceased
dashed with the involved matador, as a result of which,
he sustained fatal injuries. The appellants-original
claimants being legal heirs had filed claim petition,
before the tribunal at Vadodara against the driver, owner
and insurance company of the matador. The tribunal vide
its judgment and award dated 07.08.2007, came to
conclusion that, deceased had contributed in the alleged
accident to the extent of 25% and rest of the negligence
NEUTRAL CITATION
C/FA/4871/2008 ORDER DATED: 18/09/2023
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was fixed on the driver of the matador. On the aspect of
quantum, the tribunal determined the annual income of
Rs.35,000/- and accordingly, awarded Rs.4,35,005/- and
reduced the compensation to the extent of 25% towards
the contributory negligence of the deceased.
3. Being aggrieved by the judgment and award, the original
claimants have preferred the present appeal under
Section 173 of the Motor Vehicle Act.
4. This Court has heard learned counsel Mr. MTM Hakim and
Mr. M.G. Majmudar for the respective parties.
5. The issue arise is to whether the findings on the issue of
contributory negligence and amount of compensation as
determined by the tribunal needs any interference?
6. Mr. MTM Hakim, learned counsel for the appellants has
submitted that, the judgment and award is contrary to
the settled principles and preposition of law. On the issue
of negligence, he submitted that, before the tribunal,
driver of the offending vehicle was not examined and
therefore drawing adverse inference, the opponent-driver
ought to have held 100% negligent for causing the
accident. On the aspect of income of the deceased, he
submitted that, the tribunal failed to grant future rise
while determining the dependency loss.
7. On the other hand, Mr. Majmudar, learned counsel for the
insurance company has submitted that, the findings
NEUTRAL CITATION
C/FA/4871/2008 ORDER DATED: 18/09/2023
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recorded on the issue of contributory negligence does not
require any interference as there is a sufficient evidence
before the tribunal for fixing contributory negligence of
the deceased. He further submitted that, the amount of
compensation awarded is just, equitable and reasonable
and therefore, no ground is made out to interfere with
the judgment and award.
8. Having heard the learned counsel for the respective
parties and on perusal of the judgment and award, it
appears that, the tribunal, has assigned sufficient
reasons by assessing the contributory negligence on the
part of the deceased and therefore, this Court do not find
any merits on the submission made by learned counsel
for the appellants.
9. So far as compensation is concerned, the tribunal has not
followed the various guidelines issued by the Apex Court
regarding principles of standardization, determination of
dependency loss. Thus, considering the recent judgment
delivered by the Constitutional Bench (Pranay Sethi), the
amount of dependency loss require to be modified. The
total compensation payable to the claimants is computed
below:
1. Dependency loss: Rs.7,14,000/-(Rs.40,000 income +
Rs.16,000/- future rise and after ¼th deduction and applying
multiplier of 17, the total amount comes to Rs.7,14,000/-)
2. Conventional amount: Rs.2,30,000/- (Rs.15,000+ Rs.15,000
and Rs.40,000 per person)
Total enhanced amount Rs.9,44,000/-
(the awarded amount is Rs.3,26,254/-)
(enhanced amount of compensation is Rs.6,17,646/-)
NEUTRAL CITATION
C/FA/4871/2008 ORDER DATED: 18/09/2023
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10. In view of the above, the present appeal is allowed
in part. The claimants are entitled for the enhanced
amount of compensation of Rs.6,17,646/-. The enhanced
amount shall carry the interest @ 6% from the date of
application till its realization. The insurance company
shall deposit the enhanced amount within a period of
two months. Decree be drawn accordingly. The tribunal
shall disburse the entire enhanced amount without
making further investment in FDR.
(ILESH J. VORA,J)
TAUSIF SAIYED
