Gujarat High Court
Jitendra Gordhanbhai Dev Morari vs Pramodray Radheshyam Bansal & Anr on 31 August, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/FA/4559/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4559 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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JITENDRA GORDHANBHAI DEV MORARI....Appellant
Versus
PRAMODRAY RADHESHYAM BANSAL & ANR....Defendants
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Appearance:
MR MRUGEN K PUROHIT, ADVOCATE for the Appellant
MR RAJNI H MEHTA, ADVOCATE for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 31/08/2017
ORAL JUDGMENT
1. The present appeal is preferred by the appellant against the impugned judgment and award dated 30.12.2005, passed by the learned Motor Accident Claims Tribunal (Aux.), 2nd Additional District Judge, Rajkot in Motor Accident Claim Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Sep 09 15:06:45 IST 2017 C/FA/4559/2006 JUDGMENT Petition No.769 of 2000 whereby the Tribunal has awarded compensation of Rs.75,022/- with interest at the rate of 7.5% per annum.
2. By way of preferring the present appeal, the appellant original claimant has, inter alia, contended that the driver of the Maruti Esteem Car being GJ-12C-9787 involved in the accident was not examined by the respondent and the said car dashed with one other vehicle - Maruti Car being numbered as GJ-3K-9540 which was driven by the injured claimant from opposite direction and caused the accident. Consequently, the learned Tribunal ought to have fasten sole liability on the driver of Maruti Esteem No.GJ-12C-9787. Further it is contended that though the injured claimant has sustained disability to the extent of 46% and the learned Tribunal had considered it to the extent of 30% and that too, the learned Tribunal has awarded Compensation of Rs.75,022/- to the original claimant with 7.5% interest and therefore the learned Tribunal has taken very conservative view while passing the award in favour of the present claimant and the learned Tribunal has failed to appreciate the total loss of future income. The learned Tribunal has not properly awarded the compensation so far the pain, shock and suffering, is concerned. It is further contended that the learned Tribunal has committed error by awarding 7.5% interest instead of 9% per annum. Lastly, it is prayed to enhance the compensation.
3. The short facts giving rise to the present appeal are that the claimant was driving his Maruti Car being GJ-3K-5940 on the correct side of the road. The claimant was going from village Pipalia to Chorvada. When he was reached at village Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Sep 09 15:06:45 IST 2017 C/FA/4559/2006 JUDGMENT Dhuva, at that time, driver of the Maruti Esteem being GJ-12C- 9787 came from the opposite direction at an excessive speed, rashly and negligently, so as to endanger human life, without observing traffic rules and dashed with Maruti Car of the Claimant and caused accident. The said accident took place because of negligence on the part of driver of Maruti Esteem Car No.GJ-12C-9787. For this, the claimant had approached the learned Motor Accident Claims Tribunal (Aux.), 2nd Additional District Judge, Rajkot by filing Motor Accident Claims Petition No.769 of 2000 wherein the Tribunal has awarded compensation of Rs.75,022/- with interest at the rate of 7.5% per annum without appreciating the future loss of income.
4. This Court has heard learned advocate Mr.Paresh M.Darji for Mr.Mrugen K. Purohit, learned advocate for the appellant and Mr.Rajni H. Mehta, learned advocate for the respondent Insurance Company.
5. Mr.Darji, learned advocate for the appellant has reiterated the ground of negligent on the part of the respondent and contended that taking into consideration the size of the vehicles which had collided with each other and the ground that the driver of Maruti Esteem Car being GJ-12C-9787 was not examined by the Tribunal, consequently, the sole liability was requested to be fastened upon the driver of Maruti Esteem Car as such. It is undisputed fact that the incident occurred while overtaking another vehicle by Maruti Esteem Car and therefore the sole negligence was required to be fasten upon the said Maruti Esteem Car being GJ-12C-9787. It is submitted that this appeal be allowed.
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6. On the other hand, Mr.Rajni Mehta, learned advocate has argued that the learned Tribunal has elaborately dealt with the oral as well as documentary evidence in the nature of FIR, Panchnama and charge sheet and it has rightly recorded the finding and rightly fasten the contributory negligence to the extent of 40 and 60 respectively, therefore this Court may not interfere in the impugned judgment and award passed by the learned Tribunal.
7. This Court has thoughtfully considered the rival submissions on the point of negligence and over all appreciation on evidence on record, indisputably both the vehicles which were proceeding in opposite direction collided with each other. There was shoulder road 4 feet on each side of the road and there was a possibility of three vehicle being driven at one time. At the place of accident, as observed by the Tribunal that the Maruti Esteem Car dashed with the Maruti Car of claimant while overtaking one another vehicles. It clearly indicates from the evidence on record that the driver of Maruti Esteem Car which collied with car of the claimant which was coming from the opposite direction and while overtaking another vehicles, naturally he has to take more care and caution while driving vehicle. The negligence which was fasten upon the driver of Maruti Esteem Car as such he was overtaking other vehicle and he ought to have taken more care and caution while overtaking such vehicle. In that scenario taking into consideration the width of road and size of vehicles, this Court comes to the conclusion that driver of both the vehicles are found to be negligent and taking into consideration the aforementioned scenario, this Court is of the opinion to fasten negligence on the part of the Maruti Esteem Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Sep 09 15:06:45 IST 2017 C/FA/4559/2006 JUDGMENT Car to the extent of 75% and the driver of Maruti Car i.e. the claimant to the extent of 25%.
8. On the point of quantum, learned advocate Mr.Paresh Darji, has vehemently argued that at the time of incident the injured claimant Jitendra G. Devmurari, was serving as Principal in Secondary School and he was aged about 39 years and he was drawing salary approximately Rs.8,000/- per month. The evidence on record clearly indicates that after accident and resultant disability, he continued with service and there was no reduction of his pay and salary. In that way of the matter, the ratio as pointed out by learned advocate Mr.Rajni Mehta, by relying upon the decision of Hon'ble the Supreme Court of India in the case of "Rajkumar Vs. Ajay Kumar"
reported in (2011) 1 SCC 343, wherein it is held that when there is no reduction of pay and salary of the claimant, no future loss of income could be awarded to him.
9. This Court has gone through the record and proceedings. The record and proceedings clearly indicates that due to the accidental injuries, the claimant, sustained fractures on right leg and thigh and on left hand. He had undergone treatment from 04.02.2002 to 17.02.2002 and he was operated thrice during that time, though the disability to the extent of 46% remained as such. In view of the nature of injury sustained by him and the treatment which he had undergone, this Court is of the opinion to award the a lump-sum compensation of Rs.75,000/- towards the loss of enjoyment of life as he would definitely undergo difficulty for his daily work till his entire life. Due to the resultant disability, his bodily integrity diminished. Over and above aforesaid amount, the claimant is also entitled Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Sep 09 15:06:45 IST 2017 C/FA/4559/2006 JUDGMENT to receive Rs.25,000/- towards pain, shock, suffering and the claimant is also entitled to receive Rs.16000/- towards the actual loss of income, Rs.40,000/- towards the medicine treatment and Rs.10,000/- towards special diet and Transportation charges.
10. Thus, the claimant is entitled to receive following amount of compensation:
Amount Particulars
Rs.75,000/- The amount towards
amenities of life for reduction
of bodily integrity.
Rs.25000/- Pain, Shock and suffering
Rs.10000/- Attendant charges, Special
diet and Transportation
charges.
Rs.40000/- For medicines and treatment
Rs.16000/- Actual loss of income.
Rs.1,66,000 Total
11. So the claimant is entitled to receive an amount of Rs.1,66,000/- overall as held above. He is also held to be responsible to extent of 25% contributory negligent. So far as his contribution is concerned, the amount shall be slashed down to that extent. Therefore, the claimant is entitled to receive the actual amount of Rs.1,24,500/- (Rs.1,66,000 - Rs.41,500/-) from the respondent.
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12. In the result, the appeal is succeeds in part. The impugned judgment and award dated 30.12.2005, passed by the learned Motor Accident Claims Tribunal (Aux.), 2nd Additional District Judge, Rajkot in Motor Accident Claim Petition No.769 of 2000 is hereby modified and the amount of compensation awarded to Rs.75,022/- is enhanced of Rs.1,24,500 with interest at the rate of 9% thereon from the date of claim petition till realization. The enhanced amount of compensation with interest to be deposited by the respondent with the learned Tribunal within a period of two months from the date of receipt of this order and on such deposit, the same shall be paid to the original claimant by account pay cheque on proper identification and verification. Present appeal is allowed to the aforesaid extent. No order as to costs.
13. The Registry is directed to return the R& P, if any, forthwith to the learned Tribunal.
Sd/-
(R.P.DHOLARIA,J.) M O Bhati Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Sep 09 15:06:45 IST 2017