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2024 DIGILAW 1115 (GUJ)

Dilipbhai Madhubhai Vaghari v. Iqbal H Shaikh

2024-05-03

GITA GOPI

body2024
JUDGMENT : 1. All the 4 appeals arise out of the common judgment passed by MACT (Aux), Viramgam, Ahmedabad on 21.3.2009 in MACP no.999/99 to 1006/99, challenge is against the judgment passed in MACP no.999/99, 1001/99, 1004/99 and 1005/99 which are challenged in First Appeals no.1776/10, 1777/10, 1778/10 and 1779/10 respectively. 2. Facts of the case regarding the accident can be laid down as under:- On 30.4.1999, the injured as well as the deceased were traveling in a mini truck bearing registration no. GJ-1 V-4749 driven and owned by opponent no.3. The mini truck was going from Viramgam to Sanand carrying chilies and garlic for business purpose. It is stated that the mini truck was on its side at a moderate speed and was driven with full care observing the traffic rules. At about 8.00 p.m. when the truck was near the sign board of Village Jakhwada, at that time, mini truck met with an accident with one stationery truck lying on the road bearing registration no. GJ-1 V-7875 and the claimants sustained injuries. An FIR Exh.26 was lodged by driver and he stated that they all had gone to attend the marriage of his cousin Madhubhai Khdoabhai Vaghri. The claimant in MACP no.1998/99 had engaged mini truck 407 and in the marriage party, 5 to 6 persons were traveling in the mini truck. After completing the marriage, they were returning back at about 8.00 p.m. on Sanand Ahmedabad highway, one truck was lying in a stationary condition and therefore, he stopped Matador and meanwhile one truck came from the back side and dashed the Matador and therefore, the Matador dashed with the truck lying ahead. The Tribunal observing the evidence on record has considered 30% liability of the stationary truck while 70% of the mini truck (Matador). The Tribunal then further observed that the Matador being a goods vehicle and the claimants were traveling therein, the claimants would not be entitled to get the compensation from the insurance company of the Matador even if the driver and the owner as well as the insurer could have been joined as party respondent. The Tribunal therefore concluded 70% negligence of the mini truck Matador and 30% of the stationery truck bearing registration no. GJ-1 V-7875. 3. Advocate Mr. Modi for the claimants referring to the judgment in the case of Khenyei Vs. New India Assurance Co. The Tribunal therefore concluded 70% negligence of the mini truck Matador and 30% of the stationery truck bearing registration no. GJ-1 V-7875. 3. Advocate Mr. Modi for the claimants referring to the judgment in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors., reported in (2015) 9 SCC 273 submitted that the Tribunal when has found contributory negligence of both the vehicles, then it ought not to have bifurcated the proportion as it would be the case for composite negligence and the claimants would be entitled to recover the amount from any of the tort feasor. 4. Countering the arguments, Advocate Mr. Mazmudar submitted that to place an argument on the basis of the judgment of Khenyei (supra), the claimants were required to join the owner driver and insurance company of the vehicle in which they were traveling and hence, stated that the apportionment of the negligence would be justifiable on the basis of the evidence on record. 5. In the case of Khenyei (supra), it has been held as under:- “22.What emerges from the aforesaid discussion is as follows : 22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. 22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. 22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.” 6. Thus, the claimants would be entitled to recover the amount from all the respondents including the New India Assurance Company Limited who have to deposit the amount and recover the rest 70% of the compensation amount from the owner driver of the mini truck Matador who as per the record was initially joined as respondent no.3 but thereafter the claim petition appears to have been dismissed on 22.7.2004 as per the cause title. 7. In First Appeal no.1776/10 which impugns MACP no.999/99, learned advocate Mr. Modi submitted that 45% functional disability is required to be considered since the claimant is a vendor and sells chilies and that would effect his working capacity and would not be in a position to obtain the income with the functional disability as he was earning earlier. The age of the claimant is considered as 25 at the time of the accident. The learned Tribunal has noted his income as Rs.2,500/- per month by selling chillies. The disability of 45% has been assessed by Dr. H.P. Maniyar, orthopedic surgeon whose disability certificate was produced at Exh.35 and the Doctor has deposed with regard to disability of both the legs and thus, the Tribunal came to the conclusion of 45% disability. The income has been assessed as Rs.2,500/- but prospective rise in income is required to be considered as laid down in the case of Mohd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation, reported in AIR 2023 SC 186 and considering the age of 25, 40% prospective rise in income is to be assessed and adding Rs.1,000/- to the income, the monthly income would come to Rs.3,500/- with annually assessing 45% disability by applying multiplier of 18. The future loss would come to Rs.3,40,200/-. The future loss would come to Rs.3,40,200/-. The Tribunal has granted Rs.10,000/- as actual loss of income for a period of 4 months and has granted Rs.25,000/- for pain, shock and suffering and the medical expenses of Rs.30,000/- has been approved. Learned advocate Mr. Modi submitted that the Tribunal was required to grant the amount under the head of special diet, attendant and transportation and taking into consideration the disability and the injury sustained in the lower limb. Considering the evidence on record which has been supported by Dr. H.P. Maniyar, the claimants would require special diet to recover and attendant’s help would have been taken throughout the treatment and even for follow up treatment, the family would have assisted by way of transportation and other means and hence, considering the length of the hospitalization and the time taken for being in a position to recover Rs.10,000/- is required to be granted under the said head of special diet, attendant charges and transportation and thus, the computation is as under:- Rs.3,40,200/- Future loss of income Rs. 10,000/- Actual loss of income Rs.25,000/- Pain, shock and suffering Rs.30,000/- Medical expenses Rs.10,000/- Special diet, attendant and transportation Rs.4,15,200/- Total compensation 8. As the Tribunal has granted compensation of Rs.87,300/-, the claimants would be entitled to the enhanced amount of compensation of Rs.3,27,900/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. 9. The total amount of Rs.4,15,200/- to be deposited by the respondents with a liberty to New India Assurance Company Limited to recover 70% of the amount from the owner and driver of truck bearing registration no. GJ-1 V-4749. Thus, the impugned judgment and award in First Appeal no.1776/10 be modified accordingly. First Appeal no.1776/10 is partly allowed. 10. In First Appeals no.1777/10, 1778/10, 1779/10, the assessment is on the basis of the disability which is to the extent of 6, 5 and 7% respectively. Thus, this court considers that the amount granted as compensation is just and reasonable. Hence, the claimants are not entitled for further enhancement of compensation. First Appeal no.1776/10 is partly allowed. 10. In First Appeals no.1777/10, 1778/10, 1779/10, the assessment is on the basis of the disability which is to the extent of 6, 5 and 7% respectively. Thus, this court considers that the amount granted as compensation is just and reasonable. Hence, the claimants are not entitled for further enhancement of compensation. In the result, First Appeals no.1777/10, 1778/10, 1779/10 are not entertained on the ground of quantum and are disposed of with a direction that the total amount as granted by the Tribunal to be deposited by the respondents including the New India Assurance Company Limited. The New India Assurance Company Limited is directed to deposit the compensation amount as awarded by the Tribunal after deducting the amount already deposited with a further liberty to recover 70% of the amount from the owner and driver of truck bearing registration no. GJ-1 V- 4749. 11. While disposing the MACP on 21.3.2009, the Tribunal has noted the order passed in restoration application CMA no.29/08 to 34/08 dated 26.11.2008 to note that the claimants are disentitled for interest from 26.11.2006 to 26.11.2008 in respective claim petitions. Thus, the respondents shall deposit money after deducting the interest for this excluded period. 12. On deposit of the amount, let total amount be paid to the claimants on verification of the identity in proportion as declared by the Tribunal. 13. Registry is directed to send the record and proceedings back to the Tribunal, if received.