Gujarat High Court

Devangbhai Jayantilal Vinchhi vs Sureshbhai Shantilal on 2 September, 2024

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                            C/FA/775/2016                                        JUDGMENT DATED: 02/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 775 of 2016


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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                      1     Whether Reporters of Local Papers may be allowed                            No
                            to see the judgment ?

                      2     To be referred to the Reporter or not ?                                     No

                      3     Whether their Lordships wish to see the fair copy                           No
                            of the judgment ?

                      4     Whether this case involves a substantial question                           No
                            of law as to the interpretation of the Constitution
                            of India or any order made thereunder ?

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                                               DEVANGBHAI JAYANTILAL VINCHHI
                                                           Versus
                                                SURESHBHAI SHANTILAL & ORS.
                      ==========================================================
                      Appearance:
                      MR TANMAY B KARIA(6833) for the Appellant(s) No. 1
                      DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1
                      MR NAGESH C SOOD(1928) for the Defendant(s) No. 3
                      RULE SERVED for the Defendant(s) No. 2
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 02/09/2024
                                                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellant -

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claimant, being aggrieved and dissatisfied with the

judgment and award dated 08.01.2016 passed by the

Motor Accident Claims Tribunal (Aux.), Surendranagar in

Motor Accident Claim Petition No.64 of 2006, by which

the Tribunal has awarded compensation of Rs.52,000/-

with 9% per annum interest to the claimant/s, holding

opponents liable, jointly and severally. In the entire

awarded amount of Rs.1,15,426/- the appellant was held

negligent to the extent of 55%.

2. Brief facts of the case are as under:

2.1 On 04/12/2004, the applicant of M.A.C.P. No.150/05

was driving car No.GJ-1-HD-1109, belonging to opponent No.4 and the applicant was driving his vehicle very slow

and carefully on the side of the road, as he reached

near the village board of Boda, the opponent No.1, driver

of Truck No.GJ-12-T-8071, in rash and negligent manner,

at an excessive speed and endangering human life, and

when truck going towards the car and suddenly truck

driver applied breaks without indicating any signal and

therefore the car dashed with the truck on rear side. As

a result, the accident occurred and the owner of car was

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damaged heavily throughout. It is alleged that the

accident occurred on account of negligent act on the part

of the truck driver. However, it is on the record that

the complaint of the accident has been filed before the

Police Station against the car driver. The applicant had

suffered from inconvenience due to accidental damages to

his car and had to hire other vehicle for transportation,

therefore, Hence, claim petition has been preferred.

2.2 Notices were served to the opponents. None were

present except Opponents Nos.3 and 5 - insurance

company. Opponent No.3 and 5 - insurance company

have filed its written statement at Exh.14 and 17 by

disputing all the averments made by the claimant in the claim petition and also disputed the liability.

2.3 Issues have been framed by the Tribunal. The oral

as well as documentary evidence were led by the rival

parties before the Tribunal. After considering the

documentary as well as oral evidence and submissions

made at the bar, the Tribunal has partly allowed the

claim petition by awarding compensation as noted above.

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2.4 Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal is preferred by the claimant for enhancement.

3. Learned advocate for the appellant - claimant has

submitted that the Tribunal has committed an error in

not properly calculating the amount of compensation. It

is submitted that the Tribunal has rightly come to the

conclusion after calculating different aspects of

Rs.1,15,426, but the Tribunal has committed error in

considering the contributory negligence on the part of the

driver of the vehicle herein for which claim has been

made to the extent of 55%, which should be 40%

considering the documentary evidence available on the record. It is submitted that the appropriate enhancement

be granted by modifying the award impugned. It is

submitted that the appeal may be allowed.

4. Per contra, learned advocate for respondent No.3 -

insurance company has submitted that the impugned

judgment and award passed by the Tribunal is just and

proper. The Tribunal has rightly come to the conclusion

to award and has held 55% negligence to the vehicle in

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question for occurrence of the accident. He has submitted

that the present appeal may be dismissed or the Court

may pass appropriate order by considering the

submissions made by him/her, in the interest of justice.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation.

It is a beneficial legislation which has been framed with

the object of providing relief to the victims or their

families. Section 168 of the Motor Vehicles Act deals

with the concept of 'just compensation' which ought to be

determined on the foundation of fairness, reasonableness

and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be

made by the Court to award just and fair compensation

irrespective of the amount claimed by the claimant/s.

6.1 I have heard the learned advocates for the

respective parties and considered the submissions made

by the rival parties. I have perused the record and

proceedings of the Tribunal. I have gone through the

impugned judgment and award passed by the Tribunal.

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It is noted that the claimant has by and large claimed

towards contributory negligence.

6.2 Considering the F.I.R. as well as Panchnama and

taking into account the documentary evidence available

on the record, I am of opinion that the Tribunal has

committed error in considering the contributory negligence

on the part of the vehicle herein for which claim petition

has been preferred, to the extent 55%, which should be

to the extent 40%.

6.3 Thus, the appellant - claimant is entitled to get the

following final amount as compensation :

                                                  Particulars                         Amount (Rs.)

                            Amount calculated by the Tribunal                                   1,15,426/-

                            under different aspects

                                                                           Total...               1,15,426/-

                                                   Total entitled amount...                        69,250/-

                                        (-40% contributory negligence)

                            Less : Amount which is already                                         52,000/-

                            awarded







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                            C/FA/775/2016                                     JUDGMENT DATED: 02/09/2024

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                             Additional amount which is awarded                                    17,256/-

7. Therefore, I hold that the claimant/s are entitled to

get the total amount of compensation of Rs.69,250/- with

9% p.a. interest from the date of filing the claim petition

till its realisation, which would meet the ends of justice.

Rest of the direction(s) of the Tribunal shall remain

same. The Tribunal has already awarded Rs.52,000/- and,

therefore, remaining amount of Rs.17,256/- would be the

enhanced amount of compensation payable to the

claimant/s.

8. For the reasons recorded above, the following order

is passed.

8.1 The present appeal is allowed to the aforesaid