Gujarat High Court
Soniben Rupaji (Decd.) Through ... vs Bhalaji Bhikaji Thakor on 7 January, 2025
NEUTRAL CITATION
C/FA/4279/2009 ORDER DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4279 of 2009
With
R/FIRST APPEAL NO. 525 of 2010
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SONIBEN RUPAJI (DECD.) THROUGH VARDHAJI RUPAJI MARVAD & ORS.
Versus
BHALAJI BHIKAJI THAKOR & ORS.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 1,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
MR.DIPAK B PATEL(3744) for the Defendant(s) No. 2
SERVED BY AFFIX. (R) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/01/2025
ORAL ORDER
ORDER IN FIRST APPEAL NO.525 OF 2010 :
1. Heard learned advocates for the respective parties.
2. What could be noticed that the insurance company
restricted the claim in tune of Rs.1,29,500/-. This is a small and
meager amount and considering the aspect of having no dispute
in regards to the road accident, I am of the opinion that this
appeal may not deserve consideration, more particularly, on the
ground of smallness of amount. Accordingly, present first
appeal stands dismissed.
3. It is made clear that present first appeal is dismissed on
account of smallness of the amount and the order passed by this
Court shall not be treated as precedent so as to say that this
Court has decided any issue on merit. The whole purpose to
dismiss the appeal on account of smallness of amount is with a
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view to avoid hardship both physically and financially on the
part of the original claimant to appear and defend the case.
Therefore, this order shall not be cited as precedent in any
pending matters arising from same accident before any Court.
4. R & P, if any, to be sent back to the concerned Court
immediately.
5. The appellant is at liberty to revive the appeal in case of
difficulty.
6. Consequently connected application/s, if any, also stands
disposed of.
7. The learned Tribunal is directed to disburse the entire
amount to the claimant after due and proper verification.
8. While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
ORDER IN FIRST APPEAL NO.4279 OF 2009 :
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 17.08.2009 passed by the Motor Accident
Claims Tribunal, Ahmedabad in Motor Accident Claim Petition
No.131 of 1995.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
12.11.1994, deceased Soniben was travelling in Matador No.GJ-
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2-T-7023 along with goods and when they reached near the
place of accident opponent No.4 came by driving Matador No.GJ-
1-V-5366 in rash and negligent manner and dashed with the
matador in which the deceased was travelling. As a result, the
accident took place and deceased sustained severe injuries and
succumbed to the injuries. The legal heirs of the deceased have
filed aforestated claim petition under Section 166 of the Motor
Vehicle Act, 1988 claiming compensation of Rs.5,00,000/-. The
learned Tribunal vide impugned judgment and award dated
17.08.2009 has granted compensation to the tune of
Rs.2,59,000/-. Hence, the present appeal.
3. Heard learned advocate Mr.Paresh Darji appearing for the
claimants and learned advocate Mr.Vibhuti Nanavati appearing
for the respondent - Insurance Company.
4. Learned advocate Mr.Darji for the claimants mainly would
argue that deceased was sitting in the matador No.GJ-2-T-7023.
The accident took place between matador No.GJ-2-T-7023 and
matador No.GJ-1-V-5366. The deceased was not wrong doer but
third part. He would submit that learned Tribunal has assessed
inter se negligence of drivers of both matadors at 50% each.
Since the deceased was third party, the claimants can recover
entire amount of compensation from any of the tortfeasor jointly
and severally or from all. In the present case, learned Tribunal
apportioned liability of the opponent Nos.1 to 3 to pay 50% of the
amount of compensation and remaining 50% was ordered to be
paid by opponent No.5. By doing so, learned Tribunal has failed
to understand the principle of composite negligence. Learned
advocate Mr.Darji referred to the judgment of Hon'ble Supreme
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Court in case of Khenyei vs. New India Assurance Company
Limited - 2015 (9) SCC 273, to buttress his submission.
Second submission is that learned Tribunal has not granted
compensation for loss of future prospects as also not granted
compensation under the head of loss of estate, loss of
consortium and funeral expenses as per the judgment of Hon'ble
Supreme Court in case of National Insurance Company
Limited vs. Pranay Sethi - 2017 (16) SCC 680. Therefore, he
submits to allow the appeal to that extent.
5. I have heard learned advocates for both sides and also paid
anxious consideration to the evidence on record. At the outset, if
we peruse the facts of the case, it demonstrates that on
12.11.1994, deceased Soniben was travelling in matador No.GJ-2-
T-7023 from Bhat to Dholka. At the relevant time on the accident
spot matador No.GJ-1-V-5366 came from opposite side and
collided with the matador in which deceased Soniben was
travelling. The injuries sustained by deceased Soniben from road
accident became fatal and she lost her breath. Learned Tribunal
having referred to various evidence on record and noting absence
of drivers of both errant vehicle, marked inter se negligence of both
wrong doers at 50% each and passed the following final order :
"The present claim is hereby partly allowed to the extent
of Rs.2,59,000-00 as compensation.
The opponent Nos.1 to 3 are jointly and severally held
liable to pay 50% amount of the above awarded total
compensation together with proportionate cost and
interest @ 9% from the ate of petition till realization.
The opponent No.5 is liable to pay 50% amount of the
above awarded total compensation together with
proportionate cost an interest @ 9% from the ate of
petition till realization."
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6. What could be noticeable that learned Tribunal has
allowed concept of composite negligence to be gone. Learned
Tribunal was totally oblivion to the fact that deceased has not
contributed in causing the road accident and she was not wrong
doer and therefore, her legal heirs and representatives has
option to recover amount of compensation from any of the
tortfeasor or from all jointly and severally. In Khenyei (supra),
the Hon'ble Supreme Court has held as under :
"4. It is a case of composite negligence where injuries have
been caused to the claimants by combined wrongful act of
joint tort feasors. In a case of accident caused by negligence
of joint tort feasors, all the persons who aid or counsel or
direct or join in committal of a wrongful act, are liable. In
such case, the liability is always joint and several. The
extent of negligence of joint tort feasors in such a case is
immaterial for satisfaction of the claim of the
plaintiff/claimant and need not be determined by the court.
However, in case all the joint tort feasors are before the
court, it may determine the extent of their liability for the
purpose of adjusting inter-se equities between them at
appropriate stage. The liability of each and every joint tort
feasor vis a vis to plaintiff/claimant cannot be bifurcated as
it is joint and several liability. In the case of composite
negligence, apportionment of compensation between tort
feasors for making payment to the plaintiff is not permissible
as the plaintiff/claimant has the right to recover the entire
amount from the easiest targets/solvent defendant."
7. In view of above, first error which is found in the impugned
judgment and award is that learned Tribunal legally cannot
apportion the liability of two tortfeasors in case of composite
negligence. The claimants have choice to recover amount of
compensation from any of the tortfeasor. Therefore, all
opponents are held liable to pay entire amount of compensation
jointly and severally. The claimants can recover amount of
compensation from any of the tortfeasor.
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8. On going through assessment which is just and fair
compensation made by the learned Tribunal, the missing part
visualize is non grant of compensation for loss of future
prospects. The deceased was 40 years old at the time of road
accident. In view of judgment of Hon'ble Supreme Court in case
of Pranay Sethi (supra), 40% rise for future prospects is
required to be added to her income. Considering the age of
deceased, multiplier of 15 is required to be taken up instead of
multiplier of 13 taken up by the learned Tribunal. The
compensation under the head of loss of estate and funeral
expenses is required to be granted at Rs.18,150/- each. The
claimants are entitled to get compensation for loss of consortium
at Rs.48,400/- following law laid down by Hon'ble Apex Court in
Pranay Sethi (supra).
6.2 Therefore, re-computation of total compensation would be
as under, which the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 2,70,000/-
=Rs.1500/- + Rs.600/- (40% rise)
=Rs.2100/- minus 1/3 for personal exp.
=Rs.1400/- x 12 months x 15 Multiplier
Loss of estate 18,150/-
Funeral Expenses 18,150/-
Consortium (Rs.48,400/- x 3 claimants) 1,45,200/-
Total 4,51,500/-
Less: Amount already awarded by tribunal 2,59,000/-
Additional amount which is awarded 1,92,500/-
7. Therefore, I hold that the claimants are entitled to get the
enhanced compensation of Rs.1,92,500/- with 9% p.a. interest
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from the date of filing the claim petition till its realization, 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 claimants would be entitled to recover total amount of
compensation of Rs.4,51,500/- with 9% interest p.a. from
the date of petition till realization jointly and severally from
all the opponents. The Insurance Company if paid amount
exceeding its liability, it shall be entitled to recover the
same from other tortfeasor.
8.3 The Insurance Company is directed to deposit the
compensation amount with interest as stated herein above
within a period of six weeks from the date of receipt of this
order.
8.4 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 claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
8.5 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
