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2016 DIGILAW 330 (GUJ)

Nathibai Megha & 2 v. Driver Valabha Ranabha & 8

2016-02-11

R.P.DHOLARIA

body2016
JUDGMENT R.P DHOLARIA, J.:— This appeal has been preferred against the judgment and award passed by learned Motor Accident Claims Tribunal in Motor Accident Claim Petition No. 80 of 1979 dated 27.2.1981 whereby learned Tribunal has awarded total compensation of Rs. 46,912.50 paise. 2. The appellants have preferred the present appeal, inter alia, contending that learned Tribunal has erred in fixing contributory negligence to the extent of 75% on the part of stationery truck as well as 25% on the part of driver of running truck. It is also contended that learned Tribunal has erred in awarding meager amount of compensation and that learned Tribunal has awarded only 6% interest which is also on lower side. 3. This Court has heard learned advocate Shri. D.M Thakkar for the appellants and learned advocate Shri. Sunil B. Parikh for the insurance company - respondent No. 3. 4. On going through the award, it clearly reveals that while considering the issue of negligence, learned Tribunal has elaborately dealt with the situation as well as size of the vehicle, impact point and other evidence on record. Learned Tribunal has also elaborately discussed contributory negligence while recording the finding of contributory negligence. In that view of the matter, this Court is not inclined to disturb the aforesaid finding since the appeal being First Appeal No. 1137 of 1981 has been disposed of by this Court vide order dated 23.6.2006 Therefore, if any contrary view is taken, the same may would also prejudice the present case. 5. So far as the argument as regards to quantum of compensation as well as non-application of appropriate multiplier is concerned, on going through paragraph 21 of the impugned judgment and award rendered by learned Tribunal, it clearly reveals that learned Tribunal has shown all generosity considering standing of the claimants as the deceased was driver of the stationery truck and the liability of him was fixed to the extent of 75%. In that view of the matter, even the learned Tribunal has resorted to the provisions of the Workmen Compensation Act, 1923 and awarded deficit compensation under the provisions of the said Act. In that view of the matter, even the learned Tribunal has resorted to the provisions of the Workmen Compensation Act, 1923 and awarded deficit compensation under the provisions of the said Act. Under the circumstances, when the learned Tribunal has generously considered and even fastened liability under the provisions of the said Act under which the claim petition was also not filed, this Court deemed it proper not to enter into the contentions raised so far as the quantum of compensation as well as non-application of appropriate multiplier is concerned. 6. Another point urged by learned advocate Mr. Thakkar is with regard to the awarding of interest. The Motor Vehicles Act provides for awarding of interest from the date of filing of the petition till realization, but as the rate of interest is not fixed, it was the duty of learned Tribunal to award the interest at the rate nearly to the bank rate prevalent at the relevant time. Considering the said factual situation, this Court deemed it appropriate to enhance the rate of interest from 6% to 9% so that rate of interest should be in commensurate with the rate of interest of bank. 7. For the reasons recorded above, the appeal succeeds in part. The judgment and award passed by learned Tribunal is hereby modified to the extent that the rate of interest would be 9% instead of 6% from the date of filing of the claim petition till the date of amount deposited by the insurance company before the learned Tribunal. No order as to costs. R & P, if any, lying here be sent back forthwith to the concerned lower court.