Gujarat High Court
Jagrutiben Udaykumar Soni vs Sunil Maru on 14 February, 2025
NEUTRAL CITATION
C/FA/590/2013 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 590 of 2013
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JAGRUTIBEN UDAYKUMAR SONI & ORS.
Versus
SUNIL MARU & ORS.
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,2,3
UNSERVED EXPIRED (N) for the Appellant(s) No. 4
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
award dated 15.07.2011 passed by the Motor Accident Claims
Tribunal, Patan in Motor Accident Claim Petition No.4830 of
2002.
2. Brief facts of the case are as under:
2.1 On 24.02.2002, when deceased Udaykumar Soni and other
persons were travelling in Maruti Car No.GJ-2-K-5048 from
Mehsana to Patan, the said car dashed with Truck No.RJ-27-G-
3227 which was stationary / parked in the middle of the road
during night hours. As a result, deceased received serious
injuries and died on the spot. Therefore, claimant filed claim
petition seeking compensation.
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3. The appeal is challenging judgment and award passed in
MACP No.4830 of 2002, whereby, learned Tribunal in group of
matters, while holding deceased - Udaykumar driver of Maruti
car negligent upto 50% granted total compensation of
Rs.6,40,320/- along with 7.5% interest p.a. from the date of
petition till realization and deducted amount equal to negligence
of the deceased and passed award.
4. Legal representatives of deceased have challenged the said
award on two grounds, firstly, learned Tribunal has taken up
income of deceased on lower side; did not grant loss of future
prospects; deduction of personal expenses is on higher side, it
should be 1/4th instead of 1/3rd and loss of consortium should
be granted to each claimant at Rs.48,400/-, loss of estate and
funeral expenses is also required to be granted in view of
judgment of Hon'ble Apex Court in the case of National
Insurance Company Ltd. v/s. Pranay Sethi [2017 (16) SCC 680].
4.1. Second ground urged in the appeal is deceased was not
equally negligent in causing road accident. It is argued by
learned advocate Mr.Mehul Sharad Shah for the appellants /
claimants that accident took place on the curve of road on the
outskirts of Mehsana Chansma Highway. Driver of car was about
to cross the curve of the road at that time it dashed with truck
which was stationary from behind at 9.30 night. He would
submit that though deceased Udaykumar cannot be fasten
liability in causing road accident, but assessing 50%
contributory negligence is on high side. He would submit to
reduce the percentage of contributory negligence of the deceased.
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It is further submitted that driver of stationary truck did not
enter into witness box to explain that why truck was kept
stationary that too on the curve of the road without parking
lights or blinkers. It is submitted that learned Tribunal was
required to take adverse inference but learned Tribunal held
truck driver and deceased equally negligent in causing road
accident.
4.2. Upon above submissions, it is submitted to allow the
appeal.
5. Learned advocate Mr.Rathin Raval for respondent no.2 -
United India Insurance Company Ltd. - insurer of Truck
submitted that in group of mattes, common judgment has been
passed by the learned Tribunal assessing equal negligent of
drivers in causing road. The said judgment is not challenged
either by claimants or by insurance company, in this
circumstances, finding of learned Tribunal qua contributory
negligence of deceased in causing road accident has attained
finality and cannot be disturbed in appeal filed by present
appellants / claimants who are legal heirs of deceased - driver of
Maruti Car. Mainly this argument is submitted in appeal.
6. Learned advocate Mr.Mehta for respondent no.4 - National
Insurance Company Ltd. submitted that he is representing
Insurance Company who is insurer of Maruti car. Since deceased
was self negligence in causing road accident, owner and insurer
cannot be held liable to pay compensation. Learned Tribunal has
rightly given conclusion and therefore, said finding deserves not
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interference.
7. What could be noticed after hearing learned advocates for
the parties and appreciating evidence that learned Tribunal
while assessing contributory negligence of the deceased though
referred to deposition of Bipinchandra Modi and further observed
that Maruti Car was plying at 50 to 60 Kms on State Highway
which is moderate speed, held deceased 50% negligence in
causing road accident. Oral evidence on record demonstrate
that accident took place on curve of the road. Truck was kept
stationary on the road. Maruti Car driver coming from behind
could not see and dashed it from behind. Panchanama of place
does not demonstrate that truck driver has taken sufficient care
while stationing the truck on the State highway, no blinkers and
parking lights were visible which could help back coming vehicle
driver to notice stationary of truck. Section 122, 126 of MV Act
read with Rule 15 of the Road Regulations prohibits parking of
truck on the public road without any reason. He has not taken
due and proper care while keeping truck stationary on highway.
It is noticeable truck driver either contested claim petition nor
entered into witness box to explain why he has kept truck
stationary on road. Though it is fit case to take adverse
inference against driver of truck, learned Tribunal held
contributory negligence on deceased. Finding of learned Tribunal
assessing deceased and truck driver equally negligent in causing
road accident is erroneous finding.
8. Learned advocate Mr.Raval argued that in other group of
matters, by common judgment, other group of matters are
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decided and judgment arrived in said group of matters are not
challenged by either side and therefore, finding of learned
Tribunal attributing equal negligent to both the drivers in
causing road accident has attained finality and cannot be
disturbed in this appeal. The said contention fail to survive.
Finding since inherently wrong, if challenged by person who is
sufferer of said inherent wrong, said finding can be corrected in
appeal. Other claim petitions were filed by occupants of Maruti
Car, they are not wrong doer. Therefore, issue of negligence
between driver of vehicles would be issue of composite
negligence for them and they are least concerned about it. They
can seek compensation from any of the wrong doer but for
claimants it is case of contributory negligence, deceased was
held wrong doer in casing road accident and therefore, legal
heirs of deceased have challenged said finding. This Court in
First Appeal can exercise power under Order 41 Rule 33 of CPC
and decide the issue and modify inter-se contributory negligence
of deceased.
9. In reason of above, this Court finds that deceased was 25%
negligent in causing road accident. Driver of truck is held 75%
negligent in causing road accident and to that extent finding of
contributory negligence recorded in MACP No.4830 of 2022 is
modified. Learned Tribunal assessed income of the deceased at
Rs,.60,000/- yearly. Statutory evidence of income tax return has
been placed on record and last income tax return which is filed
before the learned Tribunal of the deceased indicates yearly
income of Rs.87,900/- (Exh.85). Thus income of the deceased is
to be taken as Rs.7325/- monthly. Deceased was goldsmith and
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34 years and therefore, 40% rise is to be given towards loss of
future prospects. There are four claimants. Claimant no.1 is
widow, claimant nos.2 and 3 are children, claimant nos.4 and 5
are father and mother. Mother died during pendency of claim
petition. Father expired during pendency of appeal proceedings.
What could be seen that when deceased expired, he was survived
by 5 depends and therefore, 1/4th is required to be deducted
towards personal expenses of deceased instead of 1/3rd which is
taken by learned Tribunal. Age of 34 attracts multiplier of 16
and accordingly, it is granted. There are five claimants. Each
claimant is entitled for loss of consortium i.e. Rs.48,400/-
individually [See : Magma General Insurance Company Limited
v. Nanu Ram @ Chuhru Ram & Ors. (2018) 18 SCC 130 ]. Other
two heads i.e. loss of estate and funeral expenses deserve to be
granted Rs.18,150/- each.
10. Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 14,76,864/-
Rs.7325/- per month + 40% prospective =
Rs.2930/- = (Rs.10,255/-), after deducting
1/4th amount (Rs.2563/-) towards personal
expenses, the amount would be Rs.7692/-
and applying 16 multiplier, the total amount
would be Rs.14,76,864/- (Rs.7692/- x 12 x
16).
Loss of consortium Rs.48,400/- x 5 2,40,000/-
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Loss of estate 18,150/-
Funeral expenses 18,150/-
Total... 17,55,164/-
Less : 25% negligence of deceased 4,38,791/-
Less: compensation already awarded 3,20,160/-
Additional amount which is awarded 9,96,213/-
11. Therefore, I hold that the claimant is entitled to get the
enhanced compensation of Rs.9,96,213/- with 7.5% 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.
12. For the reasons recorded above, the following order is
passed.
12.1 The present appeal is partly allowed.
12.2. Exoneration of opponent nos.3 and 4 of the claim petition
is maintained.
12.3 Respondent no.2- United India Insurance Company Ltd. is
directed to deposit the enhanced amount Rs.9,96,213/- with
7.5% p.a. interest from the date of claim petition till its
realization before the concerned Tribunal, within a period of six
weeks from the date of receipt of this order.
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12.4. 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 claimant, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure. While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
12.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
