Gujarat High Court
Mahendrabhai Kanjibhai Vagadiya vs Govindbhai Chandubhai Godeshwar on 5 May, 2025
NEUTRAL CITATION
C/FA/3037/2012 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3037 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MAHENDRABHAI KANJIBHAI VAGADIYA
Versus
GOVINDBHAI CHANDUBHAI GODESHWAR & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 3
MR VIJAY H NANGESH(3981) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Tushar L. Sheth for the
appellant, learned advocate Mr. Anal S. Shah for
respondent No.3 and learned advocate Mr. Vijay H.
Nangesh for respondent Nos.1 and 2. Perused the record.
2. The challenge in the present appeal is with regard to the
judgment and award dated 16.12.2010 passed by learned
Motor Accident Claims Tribunal (Aux), Gondal Camp at
Jetpur in M.A.C.P. No.1 of 2003.
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3. The facts in brief of the case are as under:
* On 19.9.2002 at about 10.00 am, the claimant and
his friend were going towards Jetpur from Ramod in a Fiat
Car. When they reached near the place of accident, a
truck bearing registration No.GJ-10T-9745 was parked
without any side indicator or signal on the road, car
dashed from behind. As a result of that, claimant
sustained severe injuries.
* The claimant filed a claim petition claiming
compensation of Rs.5,00,000/- u/S. 166 of the M.V. Act.
Opponents were served with the notice of claim petition.
Opponent Nos.1 and 2 appeared and filed Written
Statement at Exh.20 while opponent No.3 - insurance
company appeared and filed Written Statement at Exh.14
and denied its liability. Issues were framed.
* Claimant examined himself at Exh.48 and produced
documentary evidence such as FIR, RC Book, Panchnama,
Driving license, Disability certificate of Dr. Hemang
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Vasavda.
* After considering the evidence on record and
considering the submissions, learned Tribunal found
claimant negligent to the extent of 50% and the driver of
the offending truck to the extent of 50%. Learned tribunal
awarded compensation of Rs.65,500/- (Rs.1,31,000/-
minus 50%) with interest @ 7.5 % p.a. from the date of
application till realisation.
* Being aggrieved and dissatisfied with the impugned
judgment and award - the appellant - original claimant
has filed this appeal.
4. Learned advocate for the appellant has submitted that
learned tribunal has erred in holding negligent to the
extent of 50%. As a matter of fact, claimant was not
negligent in the occurrence of accident as the truck was
parked on the roadside without any indicator or signal.
Resultantly the claimant could not see the vehicle parked
on the road. Resultantly, it dashed from behind. It is
further contended that driver of the offending truck did
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not enter into the witness box and therefore the case of
the claimant vis-à-vis negligence is established. It is
further submitted that in the oral deposition, claimant
has specifically narrated the occurrence of accident.
However, in absence of any specific cross-examination on
the aspect of truck being parked without any indicator,
learned Tribunal has erred in holding driver of the Fiat
car - claimant negligent to the extent of 50%. It is further
contended that while considering the total income,
learned tribunal has failed to award compensation under
the head of prospective rise. The compensation under
the head of transportation, special diet and attendant
charges is on a lesser side. It is further contended that
burden is upon the insurance company to establish that
the driver of the Fiat car was negligent and the driver of
offending truck was not negligent. No other submissions
are made except the above. He has relied upon the
following decisions.
(a) Saudagarsing Chhajusing v.
Jashodaben reported in 1985(o) AIJ-GJ-
214365
&
(b) Archit Saini and another v.
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Oriental Insurance Co. Ltd. reported in
2018(3) SCC 365
5. Per contra, learned counsel for the respondent -
insurance company has submitted that the judgment and
award is just and reasonable. It is contended that the
Panchnama, which is an important piece of evidence, has
not been proved by the claimant though it is produced by
claimant and the same is not exhibited. It is further
submitted that the truck was parked on the roadside and
the speed of the car could be such that the driver of the
car did not see the truck parked in front of it. It is further
contended that in the cross-examination of the claimant,
specific questions are put to the claimant with regard to
the width of the road and as per the say of the claimant,
the road on which the accident took place is a single
track road admeasuring about 15 to 20 feet in width. The
FIR is filed against the driver of the Fiat car and
subsequently, the charge sheet is also filed against the
claimant. No other submissions are made except the
above.
6. I have considered the submissions envisaged by the
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learned advocates of the parties and also perused the
Record and Proceedings.
7. It appears that the accident has occurred in the night at
around 10.00 pm. The truck was parked on the roadside
and the claimant could not see the truck parked on the
roadside, resultantly dashed from behind. Undisputedly,
the FIR is filed against the claimant and thereafter, the
charge-sheet was also filed against the claimant. It is the
case of claimant in the examination-in-chief that after the
accident, claimant became unconscious and by taking
the advantage of the physical condition of the claimant,
the driver of the truck lodged FIR against him.
8. Be that as it may, the initial burden of proving negligence
is always on the claimant. Once the burden is discharged,
it would shift on the other side, i.e. the offending vehicle.
It appears from the oral deposition as well as from other
documentary evidence that the claimant is heavily
relying upon the Panchnama of the place of accident.
However, the same is not proved by the claimant. When
the FIR and charge-sheet is filed against the claimant,
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the material piece of evidence is Panchnama. When the
claimant has failed to establish the contents of
Panchnama, it was not possible for the learned tribunal to
assess the exact situation and position of the two
vehicles.
9. Even if the truck is parked on the roadside without an
indicator, which is a violation of the provisions of the law,
in absence of any other material, it cannot be said that
the driver of the car was not negligent. The claimant has
not stated at what speed the car was being driven at the
relevant point of time. The claim petition of the deceased
passengers was compromised in Lok Adalat and in that
proceedings, present claimant was one of the parties. In
the claim petition, of the deceased passenger, parties
agreed to the apportionment of negligence. Even if the
cognate claim petition and the admission on the aspect
of negligence is brushed aside for a moment, even on
assessing the evidence of the present case, except the
bare statement of the claimant, there is no clinching
evidence whereby the claimant can be exonerated from
the liability which has been fastened upon by learned
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Tribunal. The learned Tribunal had the occasion to
consider evidence both; oral as well as documentary
while deciding an issue of negligence. When learned
tribunal has, after assessing such evidence, found driver
of the Fiat car negligent to the extent of 50%, in absence
of any contrary evidence, I am not inclined to interfere in
such finding of fact.
10. However, so far as quantum is concerned, learned
tribunal, while assessing the total income, has failed to
consider prospective rise to the extent of 40%
considering the age of claimant at 33 years. Adding 40%
as prospective income, the income of deceased would be
Rs. 81,200/- (Rs.58,000/- per year + 40%). Considering
the injuries, it would be appropriate to enhance
compensation under the head of transportation, special
diet & attendant charges from Rs. 5,000/- to Rs. 10,000/-.
Rest of the award under different heads are unaltered.
11. The decision of Saudagar Singh (Supra) is the case
where the claimant had produced Panchnama and it was
duly proved by claimant. In paragraph no. 7, there is a
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discussion on this issue. While deciding the question of
negligence, the Court had an opportunity to consider the
width of the road as well as length of the vehicle and
further it was noticed that the battery wires of the truck
were hanging loose which would mean that lights of the
vehicle could not have been kept on. It was an admitted
fact that right front tyre of truck was in burst condition.
Considering the aforesaid facts, the question of
negligence was discussed and decided. In the present
case, as observed hereinabove, the Panchnama of the
place of accident which is the vital piece of evidence has
not been established by claimant.
12. In the case of Archit Saini and another (Supra),
Honorable Supreme Court was considering an issue of
negligence. The facts revealed that an eyewitness of the
accident was examined and the tanker was parked in the
middle of the road without any indicator or parking lights.
In the present case, the truck was parked on the side of
the road. The claimant did not mention about his speed
and there is no evidence on record with regard to the
brake marks found on the place of accident whereby the
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tribunal can decide the negligence against the driver of
the truck.
13. In view of the above facts and circumstances, the
claimant is entitled to following amount of compensation
under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Loss of Income
Yearly Income Rs.58,000
(Rs.58000 + 40% prospective
income = Rs.23,200)
Rs.58,000 + 23,200 =
Rs.81,200/-
Disability:
Rs.81,200 X 10% =
8,120/- X 17 Multiplier 1,38,040/-
2. Pain, Shock and Suffering 10,000/-
3. Medical Bills 6,900/-
4. Transportation, Special Diet 10,000/-
and Attendant
5. Actual Loss 4,800/-
Total Compensation 1,69,740/-
(-) Awarded Amount 65,500/-
Enhanced Amount 1,04,240/-
Interest 9%
14. Therefore, total amount of compensation would come to
Rs.1,69,740/-, which is required to be awarded with 9%
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p.a. interest from date of claim petition till its realisation,
which would meet the ends of justice. It is pertinent to
note that learned Tribunal has already awarded
Rs.65,500/- to the claimant, therefore, Rs.1,04,240/-
(Rs.1,69,740 - Rs.65,500) is required to be enhanced
with interest @ 9% p.a.
15. For the reasons recorded hereinabove, the following
order is passed:
[A]. The present appeal is partly allowed
accordingly in above terms.
[B]. The Insurance Company is directed to
deposit the enhanced amount Rs.1,04,240/- with
9% p.a. interest from the date of claim petition till
its realisation before the concerned Tribunal, within
a period of six weeks from the date of receipt of this
order.
[C]. The Tribunal shall disburse the entire
awarded amount lying in the FDR and / or with the
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Tribunal, with accrued interest thereon if any, to the
claimant, by `Account Payee Cheque' / RTGS /
NEFT', after proper verification and after following
due procedure.
[D]. While making the payment, the Tribunal
shall deduct the Courts fees, if not paid, in
accordance with the Rules.
[E]. Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith.
(D. M. DESAI,J)
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