Gujarat High Court
Devjibhai Bhikhaji Rajput (Vanol) L.H. ... vs Vadanji Kanaji Thakor on 7 February, 2025
NEUTRAL CITATION
C/FA/4037/2018 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4037 of 2018
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DEVJIBHAI BHIKHAJI RAJPUT (VANOL) L.H. OF PRAVINBHAI
DEVJIBHAI RAJPUT(VANOL) & ANR.
Versus
VADANJI KANAJI THAKOR & ORS.
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Appearance:
MR NIRAV K PADHIYAR(5678) for the Appellant(s) No. 1,2
ALPESHSINH B RAJPUT(8982) for the Defendant(s) No. 1
JIGNESHKUMAR P PANDAV(8297) for the Defendant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
MR.KISHORE PRAJAPATI(6305) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants - original
claimants being aggrieved and dissatisfied with the judgment
and award dated 25.09.2017 passed by the Motor Accident
Claims Tribunal, Palanpur in Motor Accident Claim Petition
No.68 of 2016.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
08.12.2016, when deceased Pravinbhai was travelling as pillion
rider on motorcycle No.GJ-6-DL-4888 from Tharad to Khimana
and when he reached near the place of accident, opponent No.1
came driving jeep vehicle No.GJ-13-B-9121 and dashed with the
motorcycle and upon occurrence of the accident, deceased
sustained fatal injuries and later on died.
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3. Learned advocate for the appellants - claimants has
submitted that there is no evidence on record the deceased was
riding the motorcycle at the time of accident. Secondly, the
learned Tribunal has assessed the compensation on lower side.
He would further submit that since learned Tribunal erred in
believing that deceased Pravinbhai was riding the motorcycle at
the time of accident, it jumped to the conclusion to assess 50%
self negligence of deceased and erroneously deducted 50%
amount towards self negligence of the deceased. He has
submitted that amount of award is on lower side as the Tribunal
has not properly considered the various aspects; like prospective
income of the deceased, negligence, liability and family
circumstances, etc.
3.1 He has submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and
this appeal may be allowed.
4. Whereas learned advocate Mr.Palak Thakkar for the
Insurance Company would submit that even if it is believed that
motorcycle was ridden by one Narsangbhai Harijan, his
negligency in riding the motorcycle at the time of road accident is
to be assessed and Insurance Company who is held liable to pay
the compensation may be permitted to recover the amount
excess than the amount of compensation the Insurance
Company has paid. In view of above submissions, he submits to
pass necessary order.
5. Apt to note that the Motor Vehicle Act, 1988 is a beneficial
piece of Legislation. The concept of just and fair compensation is
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C/FA/4037/2018 ORDER DATED: 07/02/2025
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integral and seminal to the MV Act. The compensation to be
awarded under the principle of just and fair compensation to the
injured of the road accident or the legal representative/s of the
deceased person is based on the principle of fairness,
reasonableness and equability. Anguish of the heart or for
mental turbulence being consequential result of the road
accident cannot be actually compensated, but the quint
essentiality lies in adopting holistic and pragmatic view to the
computation of the compensation for the loss sustained, which is
to be in the realm of realistic approximation. Although exact or
perfect arithmetical calculation of compensation for reparation of
the loss arrived from the road accident is almost impossible. The
Tribunal is bestowed with duty to make an endevour to award
just compensation regardless of the amount claimed by the
claimants. The determination of the quantum of compensation
therefore, must be liberal and not niggardly since the law values
life and limb in a free country in generous scale. Needless to
state that money may be awarded, so that something tangible
may be procured to reach something else of the like nature,
which has been destroyed or lost, but money cannot renew
physical frame that has been battered and shattered being a
result of the road accident. Yet Tribunal to endavour to bring
back victim to stage of pre-road accident as far as possible
Thus, the award must be reasonable and cannot be assessed
with moderation though it cannot at the same time be pity and
what could be granted must be just, fair and equitable
compensation.
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6.1 I have 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 learned Tribunal. What could be noticed
that 08.12.2016, one Narangbhai Harijan was riding the
motorcycle No.GJ-6-DL-4888 wherein deceased Pravinbhai was
travelling as pillion rider from Tharad to Khimana and when they
reached near the place of accident, opponent No.1 came driving
jeep vehicle No.GJ-13-B-9121 and dashed with the motorcycle
and upon occurrence of the accident, deceased sustained fatal
injuries and later on died. Learned Tribunal has on proof of
statement of Pravinbhai Sumaji Rajput recorded by the police
believed that motorcycle was ridden by the deceased and taking
note of the same, earmarked liability of 50% upon deceased. The
statement of Pravinbhai S. Rajput recorded by police can be
proved by leading evidence of IO or by confronting such
statement of Pravinbhai Rajput, but in absence thereof,
statement recorded by police is not less than a blank paper.
Learned Tribunal could not decide the negligence on the basis of
such evidence when driver of offending vehicle was not entered
into the witness box to clear facts of the road accident. Thus, the
said finding of the learned Tribunal is perverse and requires to
be quashed and set aside. It is, accordingly, quashed and set
aside. It is a case of composite negligence. In view of the
judgment of Hon'ble Supreme Court in case of Khenyei vs. New
India Assurance Company Limited - 2015 (9) SCC 273, the
heirs of the deceased had option to elect wrong doer from whom
they want to recover the amount of compensation. In the present
case, owner and insurer of another offending vehicle are joined as
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party. In view of that, learned Tribunal was not required to decide
inter se negligence between drivers of two offending vehicles.
Therefore, finding of learned Tribunal assessing 50% negeligence
of the deceased is quashed and set aside.
6.2 What could be further notice is that learned Tribunal
without assigning any reasons has assessed the income of
deceased to Rs.5,000/-. In absence of any evidence, as per the
rate of minimum wage for skilled workers at the time of road
accident, learned Tribunal ought to have taken Rs.8,000/- as
monthly income of the deceased. Therefore, I fix the income of the
deceased at Rs.8,000/- per month and in view of judgment of
Hon'ble Supreme Court in case of National Insurance Company
Limited vs. Pranay Sethi - 2017 (16) SCC 680, 40% rise in the
income of the deceased is given for calculating loss of future
prospects. Multiplier of 18 would be applied. Since the deceased
was Bachelor, 1/2 is to be deducted for personal and pocket
expenses. Further, considering the ratio laid down by the Hon'ble
Apex Court in the case of Pranay Shethi (supra), the general
and non-pecuniary damages, Rs.18,150/- each towards loss of
estate and funeral expenses should be awarded. Towards loss of
consortium, there are two dependents and therefore,
Rs.48,400/- to each dependent should be awarded as per the
decision of the Hon'ble Apex Court in the case of United India
Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur
reported in (2021) 11 SCC 780.
6.3 Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
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Particulars Amount (Rs.)
Future dependency Loss 12,09,600/-
=Rs.8,000/- + 3200/- (40% rise)
=Rs.11,200/- minus 1/2 for personal exp.
=Rs.5600/- x 12 months x 18 multiplier
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Consortium (Rs.48,400/- x 2 dependents) 96,800/-
Total 13,42,700/-
Less: Amount which is already awarded 4,47,500/-
Additional amount which is awarded 8,95,200/-
7. Therefore, I hold that the claimants are entitled to get the
enhanced compensation of Rs.8,95,200/- 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 remain same.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of six weeks from the date of receipt of this order.
8.3 The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimants, by account payee cheque /
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NEFT / RTGS, after proper verification and after following due
procedure.
8.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
