Gujarat High Court

Jalpaben Kalpeshkumar Patel Legal Rep. ... vs Fulsinh Chamanbhai Rathwa on 23 January, 2025

Author: Biren Vaishnav

Bench: Biren Vaishnav

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                            C/FA/4229/2019                                         JUDGMENT DATED: 23/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 4229 of 2019

                                                             With
                                                 R/FIRST APPEAL NO. 4230 of 2019

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE BIREN VAISHNAV

                       and
                       HONOURABLE MR. JUSTICE DEVAN M. DESAI

                       ==========================================================

                                   Approved for Reporting                          Yes           No

                       ==========================================================
                        JALPABEN KALPESHKUMAR PATEL LEGAL REP. AND HEIRS OF DECD.
                                    KAPLESHKUMAR RAMDAS PATEL & ORS.
                                                 Versus
                                    FULSINH CHAMANBHAI RATHWA & ORS.
                       ==========================================================
                       Appearance:
                       DHAVAL V PATEL(8504) for the Appellant(s) No. 1,2,3,4,5
                       MR NEERAJ SONI(3433) for the Appellant(s) No. 1,2,3,4,5
                       MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
                       MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
                       RULE SERVED for the Defendant(s) No. 1,2,4
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                               and
                               HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                          Date : 23/01/2025

                                                  ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

1. The captioned First Appeals are preferred by the

respective appellants against the impugned common

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judgment and award dated 21.04.2018 passed by the

learned Motor Accident Claims Tribunal (Main), Mahesana

in Motor Accident Claim Petition Nos.627, 628 and 629 of

2010 considering MACP No.627 of 2010 as main petition

whereby the learned tribunal has partly allowed the claim

petitions.

2. Since common issues are involved in the

captioned appeals and upon consent of learned advocates

appearing for the respective parties, the matters are taken

up for final hearing and decided by this common

judgment.

3. Heard learned advocate Mr.Dhaval Patel, learned

advocate Mr.Rathin Raval and learned advocate Mr.Vibhuti

Nanavati for the respective parties in the captioned First

Appeals. Though served, none appeared for respondent

Nos.1, 2 and 4.

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4. The brief facts of the case are as under:

4.1 On 13/06/2010, at about 3:15 PM, deceased

Kalpeshkumar Ramdas Patel, injured Hiteshkumar Amrutlal

Patel and deceased Anantkumar Babulal Patel (worker) had

gone to Balasinor in an Optra Magnum car bearing

registration No.GJ-2-AP-2024 being driven by Hiteshkumar

Amrutlal Patel for their business purpose and while

returning from Balasinor, when the car reached at the

place of accident i.e. Balasinor-Kathlal road, the opponent

No.1-driver of truck bearing registration No.GJ-7-X-4950

came from opposite direction with full speed and in a rash

and negligent manner endangering life and safety of others

and dashed with the car. Resultantly, all three of them

sustained serious injuries wherein deceased Kalpeshkumar

Ramdas Patel and deceased Anantkumar Babulal Patel

(worker) succumbed to their injuries on the spot, whereas

Hiteshkumar Amrutlal Patel sustained injuries.

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4.2 The respondent Nos.1 to 5-original claimants

being legal heirs of deceased Kalpeshkumar Ramdas Patel

filed Motor Accident Claim Petition No.627 of 2010 for a

compensation of Rs.1,00,00,000/-and respondent No.8-

original claimant i.e. Hiteshkumar Amrutlal Patel filed

Motor Accident Claim Petition No.629 of 2010 for

compensation of Rs.19,00,000/- before the learned Motor

Accident Claim Tribunal (Main), Mahesana. The legal heirs

of deceased Anantkumar Babulal Patel (worker) also filed

Motor Accident Claim Petition No.628 of 2010 for

compensation of Rs.20,00,000/- before the learned Motor

Accident Claim Tribunal (Main), Mahesana. The learned

Tribunal consolidated all three claim petitions and decided

by common Judgment and award considering Motor

Accident Claim Petition No.627 of 2010 as main claim

petition.

4.3 Notices were duly served to all opponents.

Opponent Nos. 1 and 2-driver and owner of truck did not

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appear before the Tribunal. Opponent No.3-Insurance

Company of truck appeared and filed Written Statement at

Exh-142 and denied allegations. Opponent No.4-

Hiteshkumar Amrutlal Patel driver of car appeared and

filed Written Statement at Exh-14 and denied his

negligence in causing accident. Opponent No.5-Insurance

Company of car appeared but did not file reply.

4.4 Thereafter, issues were framed at Exh-18 by the

learned Tribunal. In M.A.C.P.No.627/2010 - Patel Jalpaben

Kalpeshkumar has filed an affidavit in the form of

deposition, for the claim of compensation vide Exh.43. In

M.A.C.P.No.628/2010 - Patel Babulal Ramdas has filed an

affidavit in the form of deposition, for the claim of

compensation vide Exh.47 whereas in M.A.C.P.No.629/2010

- Patel Hiteshkumar Amrutlal has filed an affidavit in the

form of deposition, for the claim of compensation vide

Exh.44.

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4.5 In MACP No.627 of 2010, FIR, spot panchnama,

Post mortem Note and Income tax returns (2007-08, 2008-

09, 2009-10 and 2010-11) have been produced at Exhs-49,

50, 52 and 107, 108, 109 and 110 respectively. In MACP

No.628 of 2010, Post mortem Note has been produced at

Exh-57. In MACP No.629 of 2010, the injured has

produced Medical treatment Certificate at Exh-65.

4.6 After considering the evidence and material

placed on record, the learned Tribunal vide its judgment

dated 21/04/2018 and award dated 23/04/2018, partly

allowed all claim petitions and found negligence of truck

driver to the extent of 80% and of car driver to the extent

of 20%.

4.7 The learned tribunal in MACP No.627 of 2010

awarded a total compensation of Rs.45,35,072/-, and held

Opponents Nos. 1 to 3 jointly and severally liable, while

exonerated Opponents Nos. 4 and 5 and therefore awarded

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Rs.36,28,058 (80% amount of Rs.45,35,072/-).

4.8 In MACP No.628 of 2010, the learned Tribunal

awarded a compensation of Rs.12,79,600/- and held

Opponents Nos. 1 to 6 jointly and severally liable.

4.9 In MACP No.629 of 2010, the learned Tribunal

awarded a total compensation of Rs.11,76,480/-, and

deducted 20% contributory negligence and awarded

Rs.9,41,184/- (80% amount of Rs.11,76,480) and held

Opponents Nos. 1 to 3 jointly and severally liable. Being

aggrieved, the appellant-insurance company / appellants-

original claimants with their respective First Appeals Nos.

are before this Court. No appeal is preferred against

Judgment and award passed by learned Tribunal in MACP

No.628 of 2010.

5. Learned advocate for the appellant/s- original

claimant/s in the respective matters submitted that

granting of compensation by the learned Tribunal is on a

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lower side. The driver was driving the car at a moderate

speed and without any specific and clear evidence

attributing negligence on the part of the car driver. The

learned Tribunal has erred in holding car driver negligent

to the extent of 20% in the occurrence of accident. The

finding on the question of negligence is erroneous as the

driver of truck bearing Registration No.GJ-07-X-4590 has

not deposed on the question of negligence. It is submitted

that the driver of truck came from opposite direction with

an excessive speed and dashed with the car. A chargesheet

against the driver of truck was also filed which further

strengthens the case of the claimants that accident has

occurred due to sole negligence on the part of truck

driver.

5.1 It is further submitted that deceased was aged

about 32 at the time of accident and was doing business

of manufacturing, purchasing, selling and trading of all

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types of articles. It is also submitted that the learned

Tribunal has erred in discarding income of assessment year

of 2010-11 and taken into consideration average annual

income of deceased as Rs.2,65,778/- per annum. It is

further submitted that, looking to the annual income of

deceased, learned Tribunal has awarded compensation on

the lower side.

6. Per contra, learned advocate for respondents-

Insurance Company in the respective matter submitted that

the learned Tribunal has awarded compensation of

Rs.36,28,058/- (80% amount of Rs.45,35,072/-) which is

just and proper. The further contention raised by the

learned advocate for the respondent is that the insured of

the vehicle was not holding a licence on the date of

accident. The RTO Officer who was examined at Ex.146

has deposed that the licence at Ex.151 did not have an

endorsement of renewal for the period of 04.03.2008 to

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03.03.2011. It is therefore submitted that when the driver

of the vehicle was not holding effective driving licence,

the insurance company cannot be saddled with the liability

of making payment of compensation.

7. We have considered the submissions canvassed

by learned advocates for the respective parties and also

perused record and proceedings. On the date of accident,

while claimant Hiteshkumar Amurt Patel alongwith two

other persons namely Kalpeshkumar Ramdas Patel and

Anantkumar Babulal Patel were traveling in car bearing

No.GJ-2-AP-2024 and reached near the place of accident, a

truck coming from opposite direction dashed with the car.

Resultantly, claimant-Hiteshkumar Amrutlal Patel sustained

serious injuries and other two passengers namely

Kalpeshkumar Ramdas Patel and Anantkumar Babulal

Patel died because of accidental injuries.

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7.1 A question regarding holding driver of the car

negligent to the extent of 20% is under challenge by the

claimant. Learned Tribunal has considered oral as well as

documentary evidence. The Panchnama which has been

considered by the learned Tribunal indicates that both the

vehicles were found negligent and responsible in the

occurrence of accident. When sufficient material is

available for determining the question of negligence, in

absence of concrete evidence not to hold driver of the car

negligent, non-examination of the driver of truck is of no

much importance. Claimant has not led any evidence to

substantiate his contention that the driver was driving car

at a moderate speed at the time of accident and what step

he took to avoid the accident. In absence of any

convincing material, we are not inclined to interfere with

the finding of negligence and therefore we confirm the

negligence of the truck driver at 80% and negligence of

car driver at 20%.

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7.2 Ex.148 is a copy of licence issued by RTO. On

perusal of same, it transpires that during the period of

accident, the car driver was having a valid licence. It has

been observed by the learned Tribunal that Ex.148 which

is original record of RTO, indicates that there is an

endorsement regarding renewal for the period from

04.03.2008 to 03.03.2011. Thus, merely because in the

computerized record which is maintained by RTO by one

reason or other, does not mention about the renewal of

licence cannot lead to a conclusion that driver was not

holding an effective licence. When the original record

maintained by RTO is produced by the witness from RTO

indicating that the licence was renewed, the contention of

the learned advocate for the insurance company has rightly

been rejected by the learned Tribunal.

7.3 The age of the deceased at the time of accident

was 32 years. Following the proposition laid down in the

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case of National Insurance Company Limited Vs. Pranay Sethi

& Ors., reported in (2017)16 SCC 680, 40% prospective rise

in income is to be considered. Hence, total income comes

to Rs.3,60,644/- (Rs.2,57,603 x 40% [Rs.1,03,041] +

Rs.2,57,603/-) per annum and 1/4th is to be deducted

towards personal expenses. Therefore, dependency loss per

annum would come to Rs.2,70,483/- (Rs.3,60,644/- less ¼

[Rs.90,161] = Rs.2,70,483/-).

8. In view of this, the judgment and award is

modified to the following extent.

                                                      Head                             Compensation
                             1 Annual income                                     Rs. 2,57,603/-
                                  Prospective income 40%                         Rs.    1,03,041/-
                                  (Rs.2,57,603/- X 40/100)

                                  Total annual income             Rs. 3,60,644/-
                                  (Rs.2,57,603/- + Rs.1,03,041/-)

2 Deduction of towards personal Rs. 2,70,483/- expenses.

1/4th.

(Rs.3,60,644/- -Rs,90,161/-).

3 Future loss of income Rs.43,27,728/-

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(Rs.2,70,483/- X 16 ) 4 Loss of Consortium Rs. 2,42,000/- Spouse, minor son & daughter and parents + 20% = (Rs.48,400 x5) 5 Loss of estate and Funeral Rs. 36,300/- expenses 6 Grand Total Rs.46,06,028/-

7 Awarded amount of Rs.36,28,058/- compensation by Tribunal (80% of amount of Rs.45,35,072/-) 8 Enhanced amount Rs. 70,956/-

(Rs.46,06,028- Rs.45,35,072/-) 9 Net enhanced amount Rs. 56,764/-

(80% of Rs.70,956/-) 10 Interest @ 9%

9. For the reasons recorded above, following order

is passed.

9.1 The appellant-original claimant/s are entitled to

enhanced amount of compensation of Rs.56,764/- @ 9%

interest per annum from the date of claim petition till

realization from Insurance Company.

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