Gujarat High Court
United India Insurance Company Limited vs Prafulkumar Bhimsinh Gadhavi on 13 January, 2025
NEUTRAL CITATION
C/FA/3783/2014 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3783 of 2014
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UNITED INDIA INSURANCE COMPANY LIMITED.
Versus
PRAFULKUMAR BHIMSINH GADHAVI & ORS.
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR DHAVAL N VAKIL(3556) for the Defendant(s) No. 4
MR SAGAR PANDYA for MR HM PARIKH(574) & sMR RASESH H
PARIKH(3862) for the Defendant(s) No. 1
MR VASANTS SHAH(810) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant being aggrieved
and dissatisfied with the judgment and award dated 26.3.2014
passed by the Motor Accident Claims Tribunal, Anand in Motor
Accident Claim Petition No.333 of 2010.
2. The short fact of the accident is that on 3/9/2010 at about
1.30 p.m., applicant was returning from Sheradi to his home
after completing Darshan of Sheradi alongwith his friends by
driving Qualis car no.GJ-6AB-4147 at a moderate speed and on
the correct side of the road. When said qualis çar reached on
Murbad - Kalyan by-pass high-way, at that time one Eicher
No.MH-19Z-685 was coming from opposite side, driven by
opponent no.1 in a rash and negligent manner with excessive
speed, came on the wrong side of the road and dashed with
NEUTRAL CITATION
C/FA/3783/2014 ORDER DATED: 13/01/2025
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qualis car's driver side, and thus, impugned accident took place.
In the impugned accident, applicant sustained 1) closed
fractures right hip, 2) fracture of Rt acetabelum, 3) fracture of
dislocation Knee joint, 5) fracture of Latcondyle Rt. Tibia, 6)
fracture of avulsion injury of PCL ligament Rt. Knee, 7) fracture
of fibula Rt., 8) Dental injury and also sustained other serious
injuries on his body.
3. The insurance company has raised contention that the
learned Tribunal failed to assess the contributory negligence of
claimant - Prafulkumar, who was riding Qualis car at the time of
the road accident and consequently, the learned Tribunal has
erred in taking up the income of the claimant to Rs.5000/-.
4. Heard learned advocates for the respective parties.
5. First of all, apt to note that the incident took place on
3.9.2010 between Qualis car and Eicher truck. Out of these two
vehicles, Qualis car was riding by the claimant. It is an accident
in the nature of head-on-collusion, out of which, the claimant
has sustained injury as noted herein above.
6. Except the insurance company, though all opponents are
served, none remained present to contest the First Appeal by
filing written statement.
7. The claimant, who was riding the Qualis car, entered into
witness box as PW 1 at Exh.40 and narrated causing of the road
accident. He also referred the FIR at Exh.50 lodged by some
third party and panchnama of place at Exh.51. The learned
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C/FA/3783/2014 ORDER DATED: 13/01/2025
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Tribunal mainly on the ground that the driver of Eicher did not
step into the witness box to defend his negligency, fastened the
driver of Eicher negligent in causing the road accident. The
learned Tribunal has also referred to the place of panchnama to
notice that wheel mark of Eicher on the road demonstrates that
Eicher was in excessive speed. On these two findings, the
learned Tribunal fastened the Eicher driver as complete
negligent in causing the road accident.
8. Learned advocate Mr. Dwivedi failed to point out any
illegality or perversity in the findings of the learned Tribunal.
The driver of Eicher was expected to come into witness box to
deny his negligence in causing the road accident and to disclose
that why he has applied sudden break, which caused 30 ft wheel
mark on the road. According to this Court, the learned Tribunal
has rightly taken adverse inference and fastened the liability
upon the driver of Eicher and consequently, upon the owner and
insurer.
9. Another submission was that the learned Tribunal has
taken up Rs.5000/- as income of the claimant, which was on
higher side. The accident took place in 2010 and the rate of
minimum wage at the relevant time was Rs.4100/- i.e. more
than the amount of income taken by the learned Tribunal. The
learned Tribunal has taken Rs.5000/- to calculate loss of future
loss of income. Moreover, according to the claimant, he was also
generating income from the agriculture produce and he has also
placed on record village form No.8A. Therefore, according to this
Court, adoption of income of Rs.5000/- per month by the
learned Tribunal is correct. Learned advocate Mr. Dwivedi
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C/FA/3783/2014 ORDER DATED: 13/01/2025
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argued that the learned Tribunal in absence of permanent
source of income wrongly adopted Rs.5000/- as future loss of
monthly income. Age of the claimant at the time of road
accident was 43 years. However, looking to the injuries received
by the claimant, the compensation under the head of pain,
shock and suffering and loss of amenities of Rs.40,000/- each
and Rs.15,000/- towards special diet and attendant charges are
on the lower side. Therefore, though the learned Tribunal has
granted meager amount of compensation under the non-
pecuniary heads, I see no reason to interfere with the impugned
judgment and award. Grant of just and fair compensation by
the learned Tribunal including 50% towards loss of future
prospect though not fall in the legal framework, but has awarded
as stated herein above, the compensation under other heads are
granted on the lower side would justify under the principle of
just and fair compensation.
10. Resultantly, present First Appeal fails and stands
dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
