Ahir Kara Rajshi Gojiya vs Driver Of Truck Ka-16-2422 ...
2023 Latest Caselaw 6998 Guj

                                                                                 NEUTRAL CITATION




     C/FA/1530/2006                               ORDER DATED: 22/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1530 of 2006

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                  AHIR KARA RAJSHI GOJIYA
                            Versus
 DRIVER OF TRUCK KA-16-2422 GANGRANA MARCHA NAIR & 3 other(s)
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Appearance:
MR YN RAVANI(718) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MS E.SHAILAJA(2671) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 22/09/2023

                               ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicle Act, 1988, by the injured claimant, assailing the judgment and award dated 08.12.2004 in Claim Petition No.100 of 1996 by the Claim Tribunal at Jamnagar.

2. The appellant -original claimant Ahir Kara Gojiya, met with an accident which took place on 29.11.1994. The appellant being a driver of the involved truck, was going from Ahmedabad to Rajkot and while reaching at the spot of the accident, the opposite vehicle namely truck came from opposite direction and collided with the truck driven by the appellant. The appellant sustained 4 to 5 fracture injuries and was taken to private hospital of Dr. V.M. Shah at Jamnagar where he was operated thrice and admitted as indoor patient

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C/FA/1530/2006 ORDER DATED: 22/09/2023

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for a long time. Pursuant to the treatment and aforesaid grievous injuries, Dr. Sorathiya, the Orthopedic Surgeon, had assessed 60% disablement body as a whole. The learned tribunal after considering oral as well as documentary evidence, determine the annual prospective income of Rs.57000/- and taken into account 30% disablement, awarded a sum of Rs.2,90,700/- under the head of future loss of income. In all, the tribunal has awarded Rs.4,28,820/- towards the total amount of compensation and deducted 50% amount towards the negligence of the appellant, as according to Claim Tribunal, the appellant-injured being a driver of the truck, contributed to the said accident.

3. Mr. Ravani, learned counsel for the appellant has submitted that, the learned tribunal while awarding the amount of compensation under various heads, has not awarded a proper, just and reasonable amount and failed to appreciate that, in view of the multiple injuries, the appellant could not perform his job as a driver and therefore, the earning capacity has been reduced to the extent of 100%, despite of these facts, the functional disability of 30% has been considered and that too, without addition of prospective rise in the income. He further submitted that, on the issue of negligence, the tribunal, relying on the place of panchnama, held that, the appellant has equally contributed to the accident and same is erroneous as the evidence of the eye witness Mr. Devyat Vira (Exh.66) has not been properly appreciated by the tribunal.

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C/FA/1530/2006 ORDER DATED: 22/09/2023

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4. On the other hand, learned counsel Ms. E. Shailaja appearing for and on behalf of the insurance company has submitted that, the judgment and award passed by the tribunal does not require any interference and/or modification as on the point of negligence as well as the quantum, sufficient reasons were being assigned by the tribunal and therefore, the tribunal did not have committed any error either on facts or on merits while awarding the amount of compensation.

5. Having heard the learned counsel for the respective parties and on perusal of the case records, the issue arise for determination of this Court is to whether findings recorded by the tribunal on the issue of negligence and quantum needs any interference?

6. It is the contention that, the issue of negligence decided contrary to the evidence on record and settled principle of law. On the issue of negligence, the learned tribunal, came to conclusion that, the truck which was driven by the appellant- claimant, was found standing on the middle of the road and there was a break-mark at the rear portion of the truck and accordingly, by raising inference, the tribunal concluded that, truck of the appellant had travelled on the wrong side of the road. While arriving at such conclusion, the tribunal has mainly relied on the physical facts mentioned in the panchnama of the place of accident. It is not in dispute that the witness Devyat Vira (Exh.66) being a cleaner of the truck, was with the appellant- claimant and accordingly, in his deposition, he has supported the case of the appellant, contending that, the driver of the

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C/FA/1530/2006 ORDER DATED: 22/09/2023

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opposite vehicle came into wrong side and given a dash to the truck. The version of eye witness (Exh.66) got support from the evidence of the appellant and vise-a-versa. In the cross- examination of the eye witness, nothing brought on record to suggest that, his testimony has been given to support the driver-appellant. Generally, in absence of direct evidence, in order to determine the issue of negligence, the Court or Tribunal may take into account the facts mentioned in the panchnama of place of accident to decide the issue of negligence, but, when the evidence is on record, which can throw light to decide the issue of negligence, the tribunal cannot solely relying on the contents of the panchnama, decide the negligence or contributory negligence of the drivers. In the facts of the present case, the tribunal has overlooked the testimony of the cleaner of the truck for which no reasons have been assigned to come to a conclusion that why his testimony is not believable. It needs to be noted that, the driver of the other vehicle did not have stepped into witness box, nor, has been examined to explain the issue of negligence.

7. In view of the reasons recorded, this Court is of considered view that, solely based on the contents of the panchnama, the assessment of contributory negligence on the part of the appellant to the extent of 50% made by the tribunal is to some extent is erroneous and against the evidence on record. Thus, therefore, the findings recorded needs interference and accordingly, the contributory negligence on the part of the appellant is assessed to the extent of 25% and

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C/FA/1530/2006 ORDER DATED: 22/09/2023

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to that extent, he contributed to the accident.

8. The next contention is that, the amount of compensation is on lower side as under different heads, the tribunal failed to award just and reasonable amount.

9. It is no doubt true that, the appellant had sustained fracture of right femur and fracture of medial malleolus and other injuries for which he was operated by Dr. V.M. Shah and due to further complication, he was re-operated with insertion of implant. It is in these background facts, the appellant was examined by Dr. Sojitra for issuance of disability certificate and after examining him, he assessed 60% disablement body as a whole. The learned tribunal after considering the future rise in the income, has taken into account Rs.57,000/- yearly income and applying the multiplier of 17, awarded Rs.2,90,700/- towards the loss of income. This Court is of view that the tribunal has rightly determined the income of the deceased and has considered the future rise also while awarding the amount. However, considering the age of the appellant, multiplier of 18 will be applicable and to that extent, the award under the head of future loss is modified. The appellant is entitled for the amount of Rs.3,07,800/-(Rs.17100X18)under the head of future.

10. The contention about the 100% reduction in the capacity to earn cannot be accepted as there is no any evidence, to come to a conclusion that, the fracture injuries resulted into corresponding loss to the extent of 100% of the earning

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capacity.

11. On the other head like pain, shock and suffering, the tribunal has awarded Rs.20,000/- and the same is require to be increased to the extent of Rs.30,000/- as the treatment of the appellant was continued for a long. The tribunal has awarded Rs.60,120/- towards the medical expenses and same does not require any revision. The amount of Rs.20,000/- is awarded under the head of attendant, special diet and transportation and same amount is reasonable which does not require any modification.

12. The appellant has claimed the amount under the head of non-pecuniary damages like loss of amenities of life etc. On this aspect, the Apex Court in its various judgments held that, in case of serious injuries, the tribunal shall award the amount under the non-pecuniary damages. Thus, therefore, considering the nature of injuries, this Court does not deem it fit to award the amount under the loss of amenities and enjoyment of life.

13. For the reasons recorded, the total compensation payable to the appellant is computed below:

1. Future loss: Rs.3,07,800 (Rs.2,90,700 + Rs.17,100)

2. Pain, shock & suffering: Rs.30,000 (Rs.20,000+ Rs.10,000)

3. Actual loss: Rs.38,000

4. Medical expenses: Rs.60,120

5. Attendants etc. Rs.20,000

Total Rs.4,55,920(Rs.4,55,920 - Rs.1,13,980)=Rs.3,41,940

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C/FA/1530/2006 ORDER DATED: 22/09/2023

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14. In view of the aforesaid, the appeal is allowed in part. The respondent-insurance company is liable to pay the said amount of Rs.4,55,920/- instead of Rs.2,14,410/- as awarded by the tribunal. The enhanced amount will carry interest @ 6% from the date of claim petition till its realization. Decree be drawn accordingly.

(ILESH J. VORA,J) TAUSIF SAIYED