Gujarat High Court

Alifiya Husenbhai Keshariya vs Siddiq Ismail Sindhi on 3 September, 2024

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                            C/FA/2611/2017                                         JUDGMENT DATED: 03/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2611 of 2017


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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                      1     Whether Reporters of Local Papers may be allowed                             Yes
                            to see the judgment ?

                      2     To be referred to the Reporter or not ?                                      Yes

                      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 ?

                      ==========================================================
                                                 ALIFIYA HUSENBHAI KESHARIYA
                                                             Versus
                                                  SIDDIQ ISMAIL SINDHI & ORS.
                      ==========================================================
                      Appearance:
                      HCLS COMMITTEE(4998) for the Appellant(s) No. 1
                      MS. SHIVANGI M RANA(7053) for the Appellant(s) No. 1
                      MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
                      RULE SERVED for the Defendant(s) No. 1,2,4
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 03/09/2024
                                                             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 17.10.2016 passed by the

Motor Accident Claims Tribunal (Aux.), Jamnagar in

Motor Accident Claim Petition No.255 of 2011, by which

the Tribunal has awarded compensation of Rs.2,41,745/-

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

opponent No.4 liable to pay the compensation, whereas

the opponent Nos.1 to 3 has been exonerated from its

liability.

2. Brief facts of the case as per the case of the

appellant are as under:

2.1 The accident was occurred on 04.07.2010 at 10.30 p.m. near Victoria Pool when the applicant was sitting

as a pillion rider in the Hero Honda No.GJ-10-R-6852

driven by her husband when the said vehicle reached

near H.P.Petrol Pump near Victoria Pool at that time

from behind one Truck No. GJ-10-X-9792 came in rash

and negligent manner and collided with the motor cycle

and thereby, the accident was occurred. Due to the

accident, the applicant sustained fracture in her left leg

and also sustained injuries in other parts of body.

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Immediately the applicant was taken to the G.G.

Hospital, Jamnagar for medical treatment wherein she

was admitted as an indoor patient from 4.7.10 to 19.7.10

and undergone for operation. Hence, claim petition has

been preferred.

2.2 Notices were served to the opponents. None were

present except Opponents No.3 - insurance company.

Opponent No.3 - insurance company has filed its written

statement at Exh.18 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.

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.

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3.1 Learned advocate Ms. Shivangi M. Rana for the

appellant-claimant has submitted that the Tribunal has

committed an error by not properly calculating the

amount of compensation. It is argued that the amount

awarded is on the lower side, as the Tribunal has not

properly considered various aspects such as negligence

and quantum. She has drawn my attention to the

findings of the Tribunal and various documents available

on record, stating that the Tribunal has grossly erred by

not acknowledging that there was no negligence on the

part of the truck driver in the occurrence of the

accident.

3.2 She has also drawn the attention of this Court

towards the Janvajog entry dated 05.07.2010, recorded by

the City "B" Division Police Station Jamnagar. The entry

includes the truck's registration number, GJ-10-X-9792,

and notes that the accident occurred at approximately

10:30 p.m. on 05.07.2010, with the entry being made at

2:30 a.m. on 06.07.2010. Therefore, it cannot be claimed

that the police were not informed immediately after the

accident. It is a different issue that the Police did not

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submitted that the statement of Hushenbhai Bhigabhai

Keshariya, who was riding the motorcycle at the time of

the accident, was also recorded by the Police. His

statement also supports that the accident happened due

to his sleeve of shirt coming into contact with a nearby

passing cycle, causing the motorcycle rider to fall down,

which resulted in injuries to his wife, the present

claimant. The Panchnama was also drawn up by the

Police on 05.07.2010, and from the medical papers

available on record, she submitted that the accident

occurred due to contributory negligence on the part of

the truck driver, resulting in injuries to the claimant.

3.3 She has submitted that although the accident

occurred while the claimant was traveling as a pillion

rider on the motorcycle, the sleeve of the shirt of the

motorcycle rider came into contact with another vehicle,

causing the motorcycle rider--who is the claimant's

husband--to lose control over his motorcycle and

consequently, fall down. As a result, the claimant also

fell on the road, and another truck, coming from behind

at high speed, ran over the claimant's leg, causing

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injuries and disability. Thus, even though the truck may

not be prima facie responsible for the initial accident, it

seems that the truck driver was driving at excessive

speed and could not control the truck upon seeing the

claimant fallen on the road. Therefore, some contributory

negligence should be attributed to the truck driver. The

accident occurred due to the use of the motor vehicle,

and the injuries sustained by the claimant were due to

the truck driver's contributory negligence, which the

Tribunal did not properly consider. Furthermore, the

Tribunal has not properly awarded compensation on the

ground of quantum considering the injuries sustained by

the claimant. Consequently, the appeal should be allowed

on the grounds of contributory negligence of the truck driver and quantum of compensation by awarding just

compensation, and the truck owner and the insurance

company should also be held liable. In view of the

above, she has submitted that the present appeal may be

allowed by quashing and setting aside the impugned

judgment and award.

4. Per Contra, learned advocate Mr. Rathin P. Raval

for the respondent - has submitted that there is clear

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cut finding of the Tribunal by recording that the

accident has occurred due to soul negligent on the part

of the driver of the motorcycle who has also not joined

as a party in the claim petition, and even he was not

examined as a witness by the claimant and, therefore,

due to that accident, the injury is caused by the truck

and the truck cannot be held liable for its liability, as

in the occurrence of the accident, the truck has not

played any role either by dashing with the motorcycle or

by colliding with the motorcycle at any point of time

and, therefore, the truck should not be held liable at all

and the negligence of the truck is rightly not believed by

the Tribunal. He has further submitted that no F.I.R. is

registered pursuant to the said Janvajog entry and the Police has believed that there is no negligence on the

part of the driver of the truck and, therefore, there is

no further investigation carried out and charge sheet is

filed against the driver of the truck and, therefore, it

cannot be said from the material available on the record,

that the truck driver can be held responsible for his

contributory negligence and, therefore, he has submitted

that the present appeal is required to be dismissed. He

has also submitted that on the aspect of quantum, the

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Tribunal has considered all the relevant aspects of the

matter and has awarded just and proper compensation

by considering the nature of the injuries and treatment

taken by the injured, and has given sufficient amount of

compensation and, therefore, no interference is required

to be called for by the Count on the ground of quantum

also.

5.1 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.

It is noted that the claimant has by and large claimed enhancement towards negligence and quantum.

5.2 I have also considered the fact that, with respect to

negligence, it is required to be taken note that the

Janvajog entry also speaks about the involvement of the

truck and how the accident has occurred. It is an

undisputed fact that the claimant's injury resulted from

the truck running over the claimant's foot after the

claimant had fallen from the motorcycle. When vehicles

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are on the road, it is expected that drivers take due

care and caution, regardless of whether there is a direct

collision or dashing or etc. If someone falls from a

vehicle, it does not absolve other vehicles coming from

behind of the responsibility to take extra care. Prima

facie, it appears that the truck was being driven at an

excessive speed. Although the truck driver might have

seen that the claimant had fallen from the motorcycle,

the driver failed to control over the truck by applying

the break to avoid the accident. Therefore, it cannot be

said that the truck driver should not be held liable for

contributory negligence.

5.3 On the contrary, based on the records, including the statements of the husband and the medical papers, it all

speaks about how the accident has occurred. Considering

that the accident occurred due to the contributory

negligence of the truck driver, I am of the view that the

truck driver should be held liable to the extent 50% for

the contributory negligence, considering the truck being a

bigger vehicle in size, looking to the situation of the

road which is near some bridge during day time in the

city area, considering the fact that the truck was going

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in such excessive speed. Therefore, I am of the view

date 50% contributory negligence is required to be

attributed to truck also.

5.4 It is fruitful to refer the recent decision of the

Hon'ble Apex Court in the case of Prem Lal Anand and

Ors. vs. Narendra Kumar and Others reported in 2024

(9) SCALE 406. In this decision, the Hon'ble Apex Court

has considered the decision of the Hon'ble Apex Court in

the case of Municipal Corporation of Greater Bombay vs.

Laxman Iyer and Another reported in (2002) 8 SCC 731,

more particularly, paragraph No.6 is relevant, as under:

"6. .... Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is

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not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. ... Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. .... It is now well settled that

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in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable."

(Emphasis supplied)

The Court has also relied upon the decision in the

case of Pramodkumar Rasikbhai Jhavargi vs. Karamasey

Kunvargi Tak and Others reported in (2002) 6 SCC 455,

more particularly, paragraph No.9 is relevant, as under:

"9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of the defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of a defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd. [(1999) 73 ALJR 403] is worthy of quoting:

"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities

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of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."

(Emphasis supplied)

5.5 Considering the above-mentioned decisions of the Hon'ble Apex Court, the Janvajog entry, the motorcycle

driver's statement recorded by the police, the Panchnama,

and the medical papers on record, it is clear that the

Tribunal has erred by attributing sole negligence to the

motorcyclist without considering the contributory

negligence of the truck driver. Therefore, I am of the

view that interference is required to be called for by this

Court by modifying the findings of the Tribunal to the

extent that both the driver of the truck and motorcycle

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are required to be held negligent for causing the

occurrence of accident as contributory negligence to the

extent of 50:50 respectively.

5.6 It is needless to say that, for the claimant who was

traveling as a pillion rider on the motorcycle, this is a

case of composite negligence. Therefore, the claimant can

recover the amount from any of the tort-feasors. In light

of the judgment of the Hon'ble Apex Court in Khenyei

vs. New India Assurance Co. Ltd. & Ors. reported in

(2015) 9 SCC 273, I am of the view that the present

appeal is required to be allowed by modifying the

impugned judgment and award of the Tribunal by

attributing the contributory negligence of driver of the truck and driver of the motorcycle to the extent of 50:50

respectively.

5.7 On the aspect of quantum, considering the judgment

of the Hon'ble Apex Court in the cases of (i) Sarla

Verma & Ors. vs. Delhi Transport Corp. & Anr. reported

in (2009) 6 SCC 121, (ii) Govind Yadav vs. The New

India Insurance Co. Ltd. reported in (2011) 10 SCC 683,

(iii) National Insurance Co. Ltd vs. Pranay Sethi

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reported in (2017) 16 SCC 680 and (iv) United India

Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur

And Ors. reported in (2021) 11 SCC 780, and taking

into account the amount awarded by the Tribunal under

various heads, which is as under:

                                                   Particulars                                   Amount (Rs.)

                            Future loss of income                                                              86,400/-

                            Actual loss of income                                                                6,000/-

                            Pain, shock and suffering                                                          15,000/-

                            Medical expenses                                                                1,24,345/-

                            Special diet, transportation,                                                      10,000/-

                            attendant charges

                                                                                   Total...                   2,41,745/-



                      5.8      In    view         of        the   above,     I     find     that       the      amount

                      awarded           by        the        Tribunal       is     just      and       proper.          No

                      interference           is    required          on     the     grounds          of      quantum.

Accordingly, the present appeal is required to be allowed

on the aspect of contributory negligence as observed

earlier.

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6. For the reasons recorded above, the following order

is passed.

6.1 The present appeal is allowed to the aforesaid

extent.

6.2 The impugned the judgment and award dated

17.10.2016 passed by the Motor Accident Claims Tribunal