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2018 DIGILAW 522 (GUJ)

JIVANLAL N UTTAMCHANDANI v. LALMANISINGH RAJBALISINGH

2018-02-16

R.P.DHOLARIA

body2018
JUDGMENT : 1. Both the aforesaid appeals have arisen out of the same impugned judgment and award passed by learned Tribunal. 2. The claimant, by way of preferring First Appeal No.1882 of 2011, inter alia, contended that though the claimant sustained serious injuries over his lower limb and derived permanent disability and his both the legs paralysed and the Doctor has certified disability to the extent of 75% on his lower limb, though learned Tribunal has adopted very conservative view and has awarded compensation, in all, Rs.1,53,000/-. It is further contended that learned Tribunal has not appropriately calculated the amount of compensation for permanent disability the claimant has received as well as shock suffering, transportation, attendant, special diet etc and awarded meager amount of compensation. This is the precise contention raised by the original claimant. On the otherhand, the vehicle No.GQC 5386 involved in the accident was not insured and that the insurance company has also challenged the award only contending that the vehicle in question is not involved in the accident and its driver has been acquitted in the criminal offence. Precisely, the defence was of non-involvement of the vehicle in question in the accident. It is further contended that the vehicle involved in accident came to be transferred prior to the date of accident to one Chunilal Keshavlal Teli. Therefore, learned Tribunal could not have passed any award fastening the liability against the owner of the vehicle. 3. This Court has heard Mr.Hiren Modi, learned advocate for the appellant in First Appeal No.2006 of 2011 and Mr.S.G.Sharma, learned advocate for the appellant in First Appeal No.1882 of 2011. This Court has also perused the impugned judgment and award passed by learned Tribunal. 4. So far as the appeal preferred by the original claimant seeking enhancement of compensation is concerned, on going through the entire Record and Proceedings in light of the oral as well as documentary evidence in the nature of medical case papers, this Court deems it appropriate to enhance further amount of compensation to the extent of Rs.50,000/- towards future loss of income as the vehicle in question was not insured. Therefore, this Court has not examined in detail as regards to various contentions raised by the original claimant seeking enhancement of compensation but in the facts of the present case, this Court deems it appropriate to enhance lumpsum amount of Rs.50,000/- over and above the awarded amount by learned Tribunal. Further, learned Tribunal has awarded the interest at the rate of 7.5%, but looking to the prevalent rate of interest, this Court also deems it appropriate to award the interest at the rate of 9% per annum which is the prevalent rate of interest. 5. So far as the appeal filed by the owner claiming non-involvement of vehicle No.GQC 5386 is concerned, this Court has gone through the FIR which came to be lodged soonafter the accident clearly mentions the number of the vehicle involved in the accident and soonafter the accident, the FIR came to be lodged promptly. There appears no possibility of planting the vehicle in question and even during the course of cross examination, the driver has also admitted to some extent that he noticed that the claimant was proceeding upon his cycle and he was also having his vehicle behind him on Udhna Pandesara road. Not only that but the Record and Proceedings clearly indicate that after conclusion of investigation, the police has also filed the chargesheet and the driver of the vehicle came to be prosecuted and he has not ventilated any grievance for involvement either by way of filing any quashing petition or even seeking discharge from the case. In that view of the matter, the contention raised by the owner of the vehicle is not in consonance with the evidence available on record and requires to be rejected, as such. 6. The second contention raised by the owner of vehicle No.GQC 5386 that the vehicle in question came to be sold away to one Chunilal Keshavlal Teli prior to the date of incident. 6. The second contention raised by the owner of vehicle No.GQC 5386 that the vehicle in question came to be sold away to one Chunilal Keshavlal Teli prior to the date of incident. However, the Record and Proceedings clearly indicate that on the date of accident, the present appellant was the owner and he stood as registered owner and therefore, as provided under section 2(30) of the Motor Vehicles Act 1988, he is the registered owner and in view of the recent decision of the Honourable Supreme Court in the case of Naveen Kumar Vs Vijay Kumar and others in Civil Appeal No.1427 of 2018, the claimant has right to pursue his claim against the registered owner as per the provisions of the Motor Vehicles Act and the claimant needs not to pursue the second purchaser of the vehicle for claiming compensation. On that count, even this submission is also required to be rejected. 7. For the reasons recorded above, First Appeal No.1882 of 2011 preferred by the original claimant is allowed in part. The amount of compensation awarded by learned Tribunal to the extent of Rs.1,53,000/- is enhanced to Rs.2,03,000/- with running interest at the rate of 9% per annum from the date of the application till realization. The deficit amount of compensation shall be deposited within a period of three months from today. First Appeal No.2006 of 2011 preferred by the owner stands dismissed. If any amount is deposited before this Court pursuant to the impugned judgment and award of learned Tribunal, the same shall be transmitted to the learned Tribunal and learned Tribunal shall disburse the same in accordance with law after due verification. Record and Proceedings, if any, be sent back to learned lower Court forthwith. No order as to costs.