Gujarat High Court

Bhikhubhai Popatbhai Bhakhothara ... vs Ghanshyam Kathad Bhakhothara on 25 April, 2025

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                            C/FA/4647/2009                                  JUDGMENT DATED: 25/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 4647 of 2009


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE DEVAN M. DESAI

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                                   Approved for Reporting                   Yes           No

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                               BHIKHUBHAI POPATBHAI BHAKHOTHARA DECD. THROUGH
                                               CHANDRIKA & ANR.
                                                     Versus
                                    GHANSHYAM KATHAD BHAKHOTHARA & ORS.
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                       Appearance:
                       MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2
                       MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
                       MS HINA DESAI(1023) for the Defendant(s) No. 5
                       RULE SERVED for the Defendant(s) No. 1,2
                       UNSERVED EXPIRED (R) for the Defendant(s) No. 4
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                        Date : 25/04/2025

                                                       ORAL JUDGMENT

1. The present First Appeal is filed by appellants-

original claimants against the judgment and award dated

26.02.2009 passed by learned Motor Accident Claims

Tribunal (Aux.), Gondal in MACP No.390 of 1994, wherein

learned Tribunal has partly allowed claim petition.

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2. Heard learned advocate Mr.Tushar Sheth for

appellants and learned advocate Mr.Sunil Parikh for

respondent No.3 and learned advocate Ms.Hina Desai for

respondent No.5. Though served, none appeared for

respondent Nos.1 and 2.

3. Brief facts of the case are as under:

3.1 On 13.07.1994, deceased Bhikhubhai Popatbhai

was travelling in Matador bearing registration No.GRP-

4484 as a cleaner. When they reached near village

Navagadh, at that time, driver of S.T.Bus bearing

registration No.GJ-12-2306 came in rash and negligent

manner at an excessive speed and dashed with Matador.

Resultantly, deceased sustained serious injuries and was

taken for primary treatment in Government Hospital,

Jetpur, where he died during the treatment. FIR was

lodged against the driver of Matador.

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3.2 The legal heirs/representatives of deceased filed

a claim petition claiming compensation of Rs.5,00,000/-

from the opponents. Notices were issued and served to the

opponents. Opponent Nos.1, 2 & 4, though served, did not

appear and file Written Statement. Opponent No.3 -

Insurance Company of Matador appeared and filed Written

Statement at Ex.11 and denied its liability. Opponent No.4

being driver of S.T.Bus though served, did not file Written

Statement. Opponent No.5 - Gujarat State Road Transport

Corporation appeared and filed Written Statement at Ex.18

and denied its liability. Claimant No.3 filed Examination-

in-chief at Ex.45 and produced documentary evidence such

as FIR, panchnama of the scene of accident, postmortem

report, and other relevant documents in support of their

claim petition. After considering the evidence, learned

Tribunal partly allowed the claim petition and dismissed

Application against opponent No.3 and exonerated from

the liability. Learned Tribunal awarded compensation of

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Rs.1,15,600/- with 7.5% interest from the opponents.

Learned Tribunal by finding drivers of both the vehicles

negligent to the extent of 50% each but exonerated the

Insurance Company on the ground that the deceased was a

gratuitous passenger.

3.3 Being aggrieved and dissatisfied with the

impugned judgment and award, present appellants are

before this Court for enhancement of compensation.

4. Learned advocate for the appellants submitted

that on the date of accident, deceased was aged about 50

years and was travelling in matador as a cleaner. Due to

rash and negligent driving of driver of Bus, accident

occurred. It is submitted that the accident was head-on

collusion and learned Tribunal found the drivers of both

offending vehicles negligent in equal proportion. Deceased

was earning between Rs.1,500/- and Rs.2,000/- per month.

However, in absence of supporting evidence, learned

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tribunal assessed the income of deceased at Rs.1,200/- per

month. Learned Tribunal failed to award compensation for

future prospective income and also granted lesser

compensation under the conventional head including

funeral expenses. Therefore, the impugned judgment and

award be modified and the compensation amount may be

enhanced accordingly. No other submissions are made by

learned advocate for appellant.

5. Per contra, learned advocate for the Insurance

Company has supported the judgment and award and

submitted that the learned Tribunal after considering the

evidence on record has awarded just and reasonable

compensation.

6. Learned advocate for Gujarat State Road

Transport Corporation has submitted that claimants in the

appeal has prayed for compensation from the Insurance

Company and the learned Tribunal has held the driver of

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Matador negligent to the extent of 50%. Therefore, the

Insurance Company is also required to be saddled with the

liability. No other submissions are made by learned

advocate for respondent.

7. I have considered the submissions canvassed by

the learned advocates for the respective parties and also

perused the record and proceedings. The learned Tribunal

after considering the evidence has found that the deceased

was travelling in the Matador as a gratuitous passenger.

The Panchnama of the place of accident, along with other

supporting material, confirm that the deceased was not

travelling in the Matador as a cleaner. In absence of any

contrary material, I do not find any reason to interfere in

the findings arrived at by learned Tribunal.

8. So far as income is concerned, though no

evidence is placed on record to substantiate the income, it

would be in the interest of justice, if the income of

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deceased which has been assessed by learned Tribunal at

Rs.800/- per month is enhanced to Rs.1500/- per month.

Learned Tribunal has not considered compensation for

future prospective income. Considering the ratio laid down

in the case of National Insurance Company Limited Vs. Pranay

Sethi & Ors reported in (2017) 16 SCC 680, 25% is required

to be added as prospective income. Hence, total income

comes to Rs.1875/- (Rs.15,00 + 25%) per month.

Considering the number of claimants, it would be just and

reasonable to deduct 1/3 under the head of personal and

living expenses. The age of the deceased was 50 years at

the time of accident, therefore, multiplier of 13 would be

applicable in view of settled law. Claimants are also

entitled to the compensation under the head of loss of

consortium, loss of estate and funeral expenses as per

settled propositions of law.

9. The present case is a case of composite

negligence as learned Tribunal has found both the vehicles

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negligent to the extent of 50%. Therefore, the claimants

can recover compensation from either of joint tortfeasor.

Decision of Hon'ble Supreme Court in the case of Khenyei

Vs. New India Assurance Company Limited & Ors. reported in

(2015) 9 SCC 273 would be apt to refer herein. In

paragraph No.22, the Hon'ble Apex Court has observed in

para 22.1 to 22.4 which is reproduced as under:

"22.1 In the case of composite negligence, plaintiff/ claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by

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the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.

10. The contention of the learned advocate for

Gujarat State Road Transport Corporation that prayer in

the appeal is against the Insurance Company is not

accepted for the reason that the claimants have prayed in

the appeal that the order holding the respondents liable to

satisfy the award jointly and severally and holding

Insurance Company liable to satisfy the award. The prayer

sought for in the appeal is not restricted against the

Insurance Company but it is against all respondents.

Learned Tribunal has exonerated the Insurance Company

from the liability by considering the decision of New India

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Assurance Co. Ltd. Vs. Asha Rani & Ors. reported in (2003)

ACJ 1. The enhanced amount be recovered from the

original opponent Nos.4 and 5 jointly and severally by

claimants considering the decision of Khenyei (supra). The

order of exoneration of Insurance Company from the

liability to pay compensation is upheld.

11. In view of the aforesaid discussions, appellants -

original claimants are entitled to following amount of

compensation.

Under the Head of Compensation of Rs.

                       Future loss of income

                       Monthly income =               Rs.      1,500/-

                       Prospective income 25%
                       (Rs.1500 + 25%) = Rs.                  1,875/-

                       Deduction 1/3
                       (Rs.1875 x 1/3 ) =             Rs.        625/-

                        Total Income
                       [Rs.1875 - Rs.625/-]= Rs.               1,250/-

                       (Rs.1250 x 12 x 13) = Rs. 1,95,000/-                                   1,95,000/-
                       Loss of estate                                                             18,150/-





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                             C/FA/4647/2009                              JUDGMENT DATED: 25/04/2025

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                       Loss of consortium                                                      96,800/-
                       (Rs.48,400 x 2 = Rs.96,800/-)
                       Funeral expenses                                                        18,150/-
                       Grand Total                                                         3,28,100/-
                       Less awarded amount of                                              1,15,600/-
                       compensation by Tribunal
                       Rs.1,15,600/-
                       Enhanced amount                                                     2,12,500/-
                       (Rs.3,28,100 - Rs.1,15,600/-)=
                       Interest                                                                  @7.5%

12. The appellants are entitled to enhanced amount

of compensation of Rs.2,12,500/- @ 7.5% per annum from

the date of claim petition till realization from Insurance

Company. Appellants are entitled to recover compensation

either from Insurance Company and/or from Gujarat State

Road Transport Corporation.

13. The Gujarat Road Transport Corporation is

directed to deposit enhanced amount of compensation with

interest as above within a period of 6 Weeks from the

date of receipt of this order. Upon such deposit, it will be

open to the appellants to approach the learned Tribunal

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