Gujarat High Court
Roshankhan Iftiyarkhan Pathan vs Dhanaram Mangilal Nai & 2 on 15 June, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/FA/569/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 569 of 2012
With
FIRST APPEAL NO. 570 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ROSHANKHAN IFTIYARKHAN PATHAN....Appellant(s)
Versus
DHANARAM MANGILAL NAI & 2....Defendant(s)
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Appearance:
MR.HIREN M MODI, ADVOCATE for the Appellant(s) No. 1
MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 15/06/2017
ORAL JUDGMENT
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1. Both the aforesaid appeals have been preferred against the interim award passed by the learned Motor Accident Claim Tribunal, Gandhidham, Kachchh in Motor Accident Claim Petition No.467 of 2008 dated 23.12.2011.
2. The claimants have preferred the present appeals inter-alia contending that the claimants failed to implead the driver, owner and Insurance Company of the motorcycle bearing registration no.GJ.12.D.8560 and due to which, the tribunal deducted 50 % of the awardable fixed amount of compensation and therefore, the learned tribunal awarded Rs.12,500/- only instead of Rs.25,000/-.
3. This Court has heard Mr.H.M.Modi, learned advocate for the appellants and Mr.Palak Thakkar, learned advocate for the Insurance Company.
4. Indisputably, on going through the impugned order as well as the material available on record, it appears that on the day of accident, both the claimants were proceedings upon the aforesaid motorcycle bearing registration no.GJ.12.D.8560 as a driver and a pillion rider thereof. While they were proceeding on their way, one loader vehicle bearing registration no.GJ.12.U.4102 came from behind and hit them and due to which, they sustained injury.
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C/FA/569/2012 JUDGMENT
5. In view of the aforesaid factual scenario, as they were hit from behind, they have chosen to implead the driver, owner and Insurance Company of loader bearing registration no.GJ.12.U.4102 only and claimed compensation as well as the interim compensation from them only.
6. On overall appreciation of the aforesaid facts and circumstances in light of the rival submissions came to be made, indisputably, the application under Section 140 of the Motor Vehicles Act, 1988, wherein the statue has provided fixed compensation of Rs.25,000/- in case of disability and Rs.50,000/- in case of death to the victim of the accident and such amount could not be deducted. Taking into consideration even the contributory negligence on the part of the claimant which is otherwise not permissible in view of the clear provision of Section 140, the tribunal has no authority to deduct and if deduction is made, it is clear violation of the aforesaid provision of law. Section 140 reads as under.
140. Liability to pay compensation in certain cases on the principle of no fault.-
(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Aug 18 14:04:30 IST 2017 C/FA/569/2012 JUDGMENT of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]
7. For the reasons recorded above, appeals succeed and the modification is made to the extent that instead of interim award of Rs.12,500/-, the the applicants shall be entitled Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri Aug 18 14:04:30 IST 2017 C/FA/569/2012 JUDGMENT to receive Rs.25,000/- along with interest @ 9% per month from the date of application till realization. The Insurance Company shall deposit the amount of compensation along with interest before the learned tribunal. The learned Tribunal is also directed to recover the deficit Court fees while disbursing the amount to the claimants.
8. On deposition of the aforesaid amount, the tribunal shall disburse the amount at its own discretion to the claimants. No order as to costs.
(R.P.DHOLARIA,J.) mmshaikh Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Aug 18 14:04:30 IST 2017