Gujarat High Court
Rameshbhai Ghughabhai Khasiya vs Bimalbhai Girdharbhai Sakhiya on 16 April, 2025
NEUTRAL CITATION
C/FA/379/2025 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 379 of 2025
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RAMESHBHAI GHUGHABHAI KHASIYA
Versus
BIMALBHAI GIRDHARBHAI SAKHIYA & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
HARSH A VYAS(9330) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/04/2025
ORAL ORDER
1. The present appeal is filed by the appellant-original claimant
against the judgment and award dated 05.06.2024 passed by the
learned Motor Accident Claims Tribunal (Special) & 9 th Additional
District Judge, Rajkot in Motor Accident Claim Petition No.399 of
2013, wherein learned Tribunal has partly allowed the claim petition.
2. Heard learned advocate Mr. Hemal Shah for the appellant-
original claimant and learned advocate Mr. Harsh Vyas for the
respondent no.2-Insurance Company. Notice could be served upon
respondent No.1.
3. Brief facts narrated in the present First Appeal are as under:
3.1 On 30.06.2012 at about 7:30 p.m., the claimant- Rameshbhai
Ghughabhai Khasiya was riding motorcycle bearing registration no.GJ-
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3-AD-7388 in moderate speed on the correct side of the road. When
he reached in between village-Modhuka-Bandhali within the
jurisdiction of Babra Police Station, tyre of a car bearing registration
no.GJ-3-CR-4653 which was coming from opposite direction got
punctured. Resultantly, the car went on wrong side of the road and
dashed with the motorcycle. The driver of car was driving his car at an
excessive speed and in rash and negligent manner. Appellant
sustained serious injuries all over his body. FIR was lodged against the
driver of the motorcycle at Vichhiya Police Station.
3.2 The claimant- Rameshbhai Ghughabhai Khasiya filed claim
petition seeking compensation to the tune of Rs.3 Lakhs. Notices were
served. Opponent no.1-driver-cum-owner of the motor car appeared
and filed written statement at Exh.19. Opponent no.2 Insurance
Company appeared and filed written statement at Exh.23 and denied
its liability. The claimant examined himself at Exh.43. The claimant also
produced medical case papers, FIR, panchnama of place of the
accident, medical certificate issued by C.H.C., Jasdan and physical
impairment report issued by Dr. Chauham A. Desai.
3.3 After considering the evidence on record, learned Tribunal
found the driver of motorcycle i.e. claimant negligent to the extent of
50% and the driver of the car negligent to the extent of 50% in the
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occurrence of the accident. Learned Tribunal awarded compensation
of Rs.1,10,000/- in favour of the claimant with interest at the rate of
9% per annum from the date of claim petition till realization from the
opponents.
3.4 Being aggrieved and dissatisfied with the impugned judgment
and award, the claimant-appellant herein has filed the present appeal
for enhancement of compensation.
4. Learned advocate for the appellant has submitted that at the
time of the accident, the claimant was aged about 27 years and was
doing labour work and was earning Rs.3000/- per month. The accident
had occurred because of sole negligence of the driver of the car.
Panchnama of place of accident produced at Exh.55 also reveals that
the accident has occurred on the middle of the road and it is sole
negligence of the driver of the motor car. It is further submitted that
driver of the motorcycle has stepped into the witness box and in
absence of any contrary evidence by only relying upon the fact that
the FIR is lodged against the claimant, the Tribunal found 50%
negligence on the part of the claimant. It is further submitted that
while considering the income of the claimant, learned Tribunal has
failed to appreciate rates of minimum wages prevailing on the date of
the accident. Considering the fact that the claimant has not produced
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any evidence with regard to income, the rates of minimum wages
prevailing on the date of the accident was Rs.4,980/- per month. It is
further submitted that the learned Tribunal has failed to consider
prospective income while determining the compensation. No other
submissions are canvassed by learned advocate for the appellant,
except the above.
5. Per contra, learned advocate for the respondent no.2-Insurance
Company has supported the impugned judgment and award, and has
submitted that the learned Tribunal has considered the panchnama of
place of accident and found that both drivers of the vehicles negligent
to the extent 50% each. In absence of any contrary evidence led by
claimant negligence on the part of the claimant is proper and no
interference is required. It is further submitted that in absence of any
documentary evidence with regard to income of the claimant, learned
Tribunal has rightly considered the income of the claimant at
Rs.3,000/- per month and no interference is required by this Court.
Except the above, no other submissions are canvassed.
6. I have considered the submissions canvassed by learned
advocates for the respective parties and perused the material placed
on record. It appears that on the date of accident i.e. 30.06.2012, the
claimant was aged about 27 years and was doing labour work. FIR is
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lodged against the driver of the car and as per the panchnama
(Exh.55), the accident head on collision, where both drivers failed to
take reasonable care to avoid the accident, learned Tribunal found
that both the drivers are negligent to the extent of 50% each.
Regarding the question of negligence, it is for the applicant to
establish that he was not negligent in the occurrence of the accident.
Except the oral statement made by the claimant in his oral deposition,
no other material is placed on record to disbelieve the fact that the
claimant himself was not negligent to the extent of 50%.
Furthermore, the Tribunal of the offending car has chosen not to
defend claim petition and has failed to deny the allegation of
negligence. Since the Tribunal has considered FIR and the panchnama
of the place of the accident, the issue of negligence does not warrant
any interference in the apportionment of percentage of negligence.
So far as the income of the claimant is concerned, the claimant was
doing labour work and has not produced any iota of evidence to
substantiate the income. In catena of decisions, the principle is settled
that when the claimants fail to prove the income by leading cogent
and convincing documentary evidence, rates of minimum wages
prevailing on the date of the accident is the yardstick. Considering the
rates of minimum wages prevailing on the date of the accident,
income of the claimant could be assessed at Rs.4,980/- per month and
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40% prospective income is to be considered as laid down in the case of
National Insurance Company Limited vs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680, the income of the claimant would be
Rs.6,972/- per month. Multiplier 17 is applicable, considering the
undisputed fact that the claimant has sustained 25% disability body as
a whole loss of income would come to Rs.3,55,572/- (Rs.1743 x 12x
17). It also appears from the record that the claimant has sustained
fracture of middle 1/3 - lower 1/3 right femur and compound fracture
of upper right tibia and closed fracture of right scapula. With consent
of both the parties, disability was reduced to 25% body as a whole.
Since, there is no quarrel on the assessment of disability, the
percentage of disability would remain as it is.
7. In view of the aforesaid discussions, the claimant-appellant
herein is entitled to following compensation:
Name of the Particulars Amount in Rs.
Future Loss of Income
Income Rs.4,980/-
Prospective Income (40%)
Rs.4,980/- + Rs.1992/- Rs.6,972/-
Disability = 25%
(Rs.6972 x25%) Rs.1743/-
Rs.1743 X 12 X 17 Rs.3,55,572/-
Pain, Shock and Suffering Rs.35,000/-
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Special Diet, Attendant charges and Transporation Rs.10,000/-
Medical Expenses Rs.10,000/-
Dependency Loss Rs.19,920/-
(Rs.4980x 4) =
Total Rs.4,30,492/-
Deduction Rs.2,15,246/-
(50% of Rs.4,30,492/-)
Awarded Compensation by Tribunal Rs.1,10,000/-
Enhanced amount of compensation Rs.1,05,246/-
8. For the reasons recorded above, following order is passed:
8.1 The appellant-original claimant is entitled to enhanced amount
of compensation of Rs.1,05,246/- with interest at the rate of 9% per
anuum from the date of claim petition till realization from the
respondent-Insurance Company.
8.2 The Insurance Company is directed to deposit enhanced amount
of compensation with interest as above within a period of Four Weeks
from the date of receipt of this order.
8.3 Upon such receipt, it will be open for the appellant-original
claimants to approach the learned Tribunal for appropriate orders for
withdrawal. The learned Tribunal shall disburse the same after proper
identification and verification following due procedure.
8.4 While making the payment, the learned Tribunal shall deduct
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the court fees, if not paid, in accordance with the prevailing rule.
8.5 The present First Appeal is partly allowed. The impugned
judgment and award dated 05.06.2024 passed by the learned Motor
Accident Claims Tribunal (Special) & 9th Additional District Judge,
Rajkot in Motor Accident Claim Petition No.399 of 2013, is modified to
the aforesaid extent.
8.6 Record and Proceedings, if any, received, be sent back to the
concerned Court/Tribunal forthwith.
(D. M. DESAI,J)
SUYASH SRIVASTAVA
