Gujarat High Court
Mitesh Haribhai Bhavsar vs Nathabhai Mepabhai Mori on 22 January, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2462 of 2023
==========================================================
MITESH HARIBHAI BHAVSAR
Versus
NATHABHAI MEPABHAI MORI
==========================================================
Appearance:
MR H M SHAH(3997) for the Appellant(s) No. 1,2,3
K K MAGHNANI(7543) for the Defendant(s) No. 1,2
MR K B MAGHNANI(9673) for the Defendant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 22/01/2024
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. We have heard Mr. H.M. Shah, learned advocate on record
for the appellants - original claimants, Mr. Rathin Raval, learned
advocate on record for the respondent No.3 - Insurance Co. and
Mr. Maghnani, learned advocate, who has appeared on behalf of
the respondent Nos.1 and 2.
2. Present appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, at the instance of original claimants, who are
aggrieved with the judgment and award dated 24.02.2023
rendered by the 6th Motor Accident Claims Tribunal at Khambhat in
M.A.C.P. No.92 of 2020 (Old M.A.C.P. No. 697 of 2015).
3. In nutshell, the case of the original claimants as contended
before the Tribunal is as under:
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
3.1 On 14.10.2015, at around 9:00 a.m. in the morning, when the
deceased Vaishaliben Miteshbhai Bhavsar, as a pillion rider was
travelling with her husband on the scooter bearing registration No.
GJ-23-AP-865 and after crossing railway, had proceeded towards
Kansari, at that time, the opponent No.1 Nathabhai Mepabhai
Mori, who was driver of the offending truck bearing registration
No.GJ-11-Z-5858, hit the vehicle driven by the claimant No.1 from
the back side. It is alleged that the accident occurred because of
the excessive speed and negligent driving of the opponent No.1
driver.
3.2 Because of the aforesaid accident, the deceased fell off
from the scooter and came under the wheels of the said offending
truck. The deceased was provided primary treatment at General
Hospital and was thereafter referred to Zydus Hospital, Anand, the
deceased succumbed to the injuries.
3.3 The claim petition being M.A.C.P. No.697 of 2015 was
preferred by the heirs and legal representatives of the deceased,
which includes husband of the deceased Viz. Miteshbhai Bhavsar
and her children Prachiben and Sujal. In the aforesaid claim
petition, Kanubhai Arjanbhai Madha was joined as opponent No.2
being owner of the vehicle and New India Assurance Co. Ltd. was
joined as opponent No.3 being Insurance Co. of the offending
vehicle. Initially, the National Insurance Co. was joined as
opponent No.4 being Insurance Co. of the vehicle of the ownership
of original claimant, however, later on the said opponent was
deleted from the array of the parties pursuant to the order passed
by the Tribunal below Exhibit 37.
3.4 According to the original claimants, the deceased was aged
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
about 39 years and was doing diamond business, thereby earning
income of Rs.5 Lakhs p.a. The original claimants have prayed for
compensation of Rs. 1,08,00,000/- with interest @ 12% along with
cost to be realized from the opponents.
3.5 The opponent No.1 had chosen not to enter his appearance
before the Tribunal. The opponent No.2 had appeared through his
advocate, however, had choose not to contest the claim petition by
filing any of the written statement. The opponent No.3 Insurance
Co. had tendered their written statement at Exhibit 14. Apart from
the denial of the averments made in the claim petition, the
Insurance Co. had denied negligence on the part of the driver of
the offending vehicle and their consequential liability to make
payment towards any compensation to be determined in favour of
the original claimants. The Tribunal upon consideration of the
pleadings of the respective parties, has framed the following
issues for determination:-
1. Whether applicants proved that the deceased died
due to accident arising out of use of motor vehicles
involved in the accident?
2. What applicants are entitled to any compensation? If
yes, what amount and from whom?
3. What order?
3.6 The Tribunal has considered the evidence led by the
respective parties and by impugned judgment and award, had
partly allowed the claim petition, thereby holding the applicants -
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
children except original claimant No.1, Miteshbhai - husband of
the deceased as being treated as tort feasor, entitled to recover an
amount of Rs.12,36,098/- with interest @ 9% p.a. from the date of
filing of the claim petition till actual realization and with
proportionate cost of the petition to be realized from the opponents
jointly and severally. In such process, the Tribunal has deducted
the award amount qua the claimant No.1.
4. Being aggrieved and dissatisfied with the aforesaid direction,
more particularly, the aspect of deduction of the award amount qua
the applicant husband as being held as tort feasor, the present
appeal is preferred.
5. Considering the controversy involved in the narrow compass
in the present appeal and the broad consensus arrived between
the learned advocates appearing for the respective parties at the
stage of admission, this Court by order dated 13.09.2023 had
admitted the appeal and hearing was expedited. The appeal was
taken up for final hearing.
6. Learned advocate for the original claimants - appellants
herein has invited our attention to the relevant observations of the
Tribunal on the aspect of liability as persuade by the Tribunal.
According to the learned advocate, the Tribunal has committed
serious error in deducting 50% of the award amount. He further
submitted that indisputably, as evident from the observations made
by the Tribunal, categorical findings were recorded by the Tribunal
holding the opponent Nos.1 and 2 i.e. driver and owner of the
offending truck 100% negligent based on appreciation of evidence
and thereafter, proceeded to hold claimant - husband, who was
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
driver of the scooter, as tort feasor without assigning any reason.
According to the learned advocate, the Tribunal committed serious
error in applying principle laid down by this Court in the various
judgments relied by the Tribunal in the facts of the present case
and has committed error in deducting the amount of compensation
to the extent of 50%, without recording any findings with regard to
his negligence. He, therefore, urged this Court to enhance the
aforesaid amount of compensation has wrongly deducted by the
Tribunal.
7. Mr. Raval, learned advocate for the Insurance Co. has
referred to the relevant observations of the Tribunal with regard to
the issue of liability. The reference was made to the manner in
which the accident had taken place. It was contended that on
overall appreciation of evidence, the Tribunal has rightly held the
original claimant No.1 as tort feasor. In such circumstances, no
error can be found with the approach of the Tribunal in deducting
the amount of compensation qua the share of the joint tort feasor
as he cannot be a victim of his own wrong. He alternatively urged
to consider the interest @ 7.5%, if the Court is inclined to enhance
the award amount.
8. Having heard the learned advocates appearing for the
respective parties and having gone through the impugned
judgment and award passed by the Tribunal as well as R & P of
the claim petition, only limited issue, which we require to examine
in the present appeal is the aspect of holding the original claimant
as joint tort feasor and the consequential deduction of 50% from
the total award amount. While determining the issue of liability, the
Tribunal has taken into consideration the contents of the FIR. The
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
Tribunal has further taken note of fact that the driver of offending
truck had chosen not to enter into the witness box neither any eye-
witness has been examined by either of the parties. Morever, the
factum of filing of charge-sheet against the opponent No.1 truck
driver has been confirmed. In light of the aforesaid evidence, the
Tribunal has held the opponent No.1 negligent and consequently
the opponent No.2 - owner of the truck and the opponent No.3
Insurance Co. as jointly and severally liable to pay the amount of
compensation to the claimants. Having held so, the Tribunal has
further clarified by observing that at the time of accident, the
original claimant No.1 husband of the deceased was riding the
scooter and due to rash and negligent driving of the said claimant,
the accident had occurred, which has resulted into death of his
wife. With such observations, the Tribunal has held the original
claimant No.1 to be a joint tort feasor and by applying principle that
the tort feasor cannot be said to be a victim, has proceeded to
slice down the total compensation qua his share i.e. to the extent
of 50%. Except for the aforesaid observations, no discussion is
made by the Tribunal with regard to the negligency of the original
claimant No.1 in the aforesaid accident. Hence, it is apparent from
the perusal of the aforesaid observations of the Tribunal, the
contrary view has been taken by the Tribunal.
9. The defence was raised by the Insurance Co. that the
claimant No.1 was driving his scooter in rash and negligent
manner without observing traffic on road. It was contended by the
Insurance Co. that while he was riding his scooter, steering of his
scooter hanged with the rear side of truck and due to over speed,
he lost his control, resulting into the accident. Thus, it was
submitted that the original claimant No.1 was solely responsible for
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
the occurrence of the accident.
10. In such circumstances, this Court is called upon to
reappreciate the evidence, which has emerged on record. It is
evident on examination of the documentary evidence, viz. a copy
of the complaint at Exhibit 44, copy of the panchnama at Exhibit
58 and the copy of the charge-sheet at Exhibit 59 that the original
claimant No.1 was driving the scooter and his wife was sitting as a
pillion rider. The original claimant No.1 has deposed before the
Tribunal at Exhibit 40. In his deposition, he has reiterated the facts
as averred in the claim petition, more particularly, with regard to
the manner of occurrence of the accident. It was specifically
alleged that the offending truck had hit the scooter from behind
because of which, the deceased had fallen from the scooter and
was run over by the truck causing serious injuries. The
documentary evidence produced on record by the original
claimants corroborates the aforesaid case put forward by the
original claimants. It is evident from the panchnama that the road
was snake shaped and the truck came from behind and dashed on
back side of the scooter. Additionally, the charge-sheet has been
filed against the truck driver. Indisputably, the truck was heavy
vehicle with 18 wheels on road, high degree of caution is expected
from the driver of the heavy vehicle, more particularly, when the
spot of the accident in the facts of the case, which was the curve of
the road, the driver of truck was expected to be more vigilant. The
evidence of the original claimants, having dashed with the scooter
from the back side is established which is not nullified by the
opponents by leading any evidence. As rightly pointed out by
learned advocate for the appellants, no reason has been assigned
by the Tribunal while holding the claimant tort feasor. We are of
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
the view that the driver of the offending truck was solely negligent
to attribute towards accident. Having held so, we are of the view
that the Tribunal committed serious error in deducting the amount
of compensation, by treating the original claimant as joint tort
feasor, from the total award amount.
11. We had inquired from the learned advocate for the
respondent - Insurance Co. with regard to any appeal being filed
by the Insurance Co. against impugned judgment and award. It is
reported that no challenge is made to the impugned judgment and
award at the instance of the Insurance Co. Learned advocate Mr.
Maghnani appearing for the respondent has also confirmed that
the impugned judgment and award is not assailed by the owner of
the offending vehicle.
12. In view of limited controversy raised in the present appeal,
we chose not to interfere with amount determined by the Tribunal
under different heads. Hence, this appeal succeeds only on the
aspect of deduction of the amount qua the share of the original
claimant No.1. The impugned judgment and award dated
24.02.2023 rendered by the 6th Motor Accident Claims Tribunal at
Khambhat in M.A.C.P. No.92 of 2020 (Old M.A.C.P. No. 697 of
2015) is hereby modified to the extent of deduction qua original
claimant No.1. The appellants are held entitled to the enhanced
amount of compensation of Rs.12,36,097/- with interest @ 8% p.a.
from the date of filing of the original claim petition till its actual
realization, to be realized from all the opponents jointly and
severally.
13. The opponents are further directed to deposit the aforesaid
NEUTRAL CITATION
C/FA/2462/2023 ORDER DATED: 22/01/2024
undefined
enhanced amount of compensation with interest before the
Tribunal within a period of eight weeks from the date of receipt of
copy of this order. On deposit of the aforesaid amount, the
Tribunal is directed to release such amount in light of guidelines of
the Hon'ble Supreme Court in favour of the original claimants. R &
P be sent back to the concerned Tribunal forthwith.
Registry may examine the deficit court fees, if any, which
may be deducted from the aforesaid amount of compensation.
(BIREN VAISHNAV, J)
(NISHA M. THAKORE,J)
Y.N. VYAS
