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FA/5196/2006 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5196 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
MOHAMMED
@ NURMOHMAD KURESHI - Appellant(s)
Versus
MOHAMMED
ASIF ABDUL KAYUB SHAIKH & 2 - Defendant(s)
=========================================================
Appearance
:
MR
AV PRAJAPATI for
Appellant(s) : 1,
RULE SERVED BY DS for Defendant(s) : 1 - 2.
MR
SANDIP C SHAH for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/02/2010
ORAL
JUDGMENT
1.
Heard learned advocate Mr.A.V.Prajapati on behalf of appellant
claimant and learned advocate Mr.Sandip Shah appearing on behalf of
respondent No.3 Insurance Company.
2.
This Appeal is preferred by claimant for Rs.5.00 lacs challenging
award passed by Claims Tribunal, Ahmedabad in M.A.C.P.No.507 of 2001
decided on 23rd August, 2006, Exh.19 where Claims
Tribunal has awarded Rs.1,45,800/- with 8% interest in favour of
appellant claimant.
3.
Learned advocate Mr.A.V.Prajapati submitted that Claims Tribunal has
committed gross error in not awarding reasonable and just amount of
compensation in favour of claimant, therefore, present appeal is
filed. He submitted that 25% negligence which has been decided by
Claims Tribunal without any evidence on record and therefore accident
is occurred not due to contributory negligence of appellant but it
was sole negligence of respondent No.1. He also submitted that
future prospective income which has been decided Rs.1,05,400/- being
calculation error because Claims Tribunal has not applied mind. He
submitted that for pain, shock and sufferings only Rs.12,000/- has
been awarded but claimant is entitled some more amount for pain,
shock and sufferings. Therefore he submitted that some reasonable
amount of compensation in respect to each head may be enhanced in
favour of appellant.
4.
Learned advocate Mr.Sandip Shah appearing on behalf of Insurance
Company submitted that Claims Tribunal has properly examined matter
and decided it on basis of evidence and rightly awarded a reasonable
amount of compensation in favour of claimant for that Claims Tribunal
has not committed any error which requires interference by this
Court.
5.
I have considered submissions made by both learned advocates and I
have also perused award passed by Claims Tribunal, Ahmedabad.
Accident occurred on 1.7.2000 at about 17.45 hours. Claimant was
going for calculation of his business from his house on his
motorcycle bearing Registration No.GJ-1-EE-6918 and when he reached
opposite to Gujarat Samachar Circle and he was taking the turn
towards BJP Office, at that time, one motorcycle which was driven by
opponent No.2 came from Dinbai Tower and opponent No.2 has driven his
motorcycle in rash and negligent manner and in full speed and dashed
with motorcycle of claimant. The claimant was fallen on the road and
he sustained injuries on right leg. The opponent No.2 had raced his
motorcycle and claimant has seen the Registration No. of his
motorcycle which is GJ-1-CA-2355. The incident took place due to
negligence on part of respondent No.2 who has driven his vehicle in
rash and negligent manner. The claimant sustained serious injuries
on right leg and one Mr.Amitbhai who is residing in the same flat in
which claimant is staying had taken claimant to V.S.Hospital in
auto-rickshaw, where x-ray of right leg was taken in which fracture
is being seen and operation was fixed on Tuesday. Thereafter
claimant was admitted in hospital of Dr.Manoj Joshi, where he was
operated and given treatment as an indoor patient for 20 days.
Thereafter he was advised to take rest for period of six months.
During that period he had occasionally visited hospital of Dr.Manoj
Joshi for the purpose of dressing and he has spend Rs.40,000/- for
medicines and medical treatment. Claimant was having business of
building material and construction earning Rs.15,000/- per month and
he got 28% disability and due to that he suffered in business of
contract and he was using right leg and due to injury and permanent
disability he was not able to do work. The reply is filed by
respondent No.2 at Exh.22 and Insurance Company has filed reply
Exh.17. Thereafter issues have been framed by Claims Tribunal Exh.14.
Issue of negligence has been considered by Claims Tribunal in
paragraph 10 as under:
After
hearing the learned Advocate of both the sides, if we peruse Exh.26,
the deposition of the petitioner, he has narrated the incident in
detail. Moreover, the complaint at Exh.47 also supports the case of
the petitioner and if we peruse the cross-examination of the
petitioner, he has stated that in the incident both the vehicles
were coming from opposite direction and he has seen the opposite
vehicle from 10 ft. to 15 ft. away. He has also admitted that after
the incident, he and the opponent No.2 fallen on the road. Thus, it
can be said that the petitioner has seen the opposite vehicle from
10 ft. to 15 ft. away. Moreover, if we peruse the panchnama of place
of offence at Exh.48, but it is not showing the real picture of the
incident. In these circumstances, considering the fact that the
incident took place at 17.45 hours, both the vehicles are of the
same cadre i.e. motorcycle and both the vehicles were coming from
the opposite direction and they dashed with each other. Moreover,
the petitioner has seen the opposite vehicle from 10 ft. to 15 ft.
In these circumstances, it can be said that the petitioner has not
taken step to prevent the incident. In these circumstances, there
is some negligence of the petitioner and considering the fact, I am
of the opinion that 75% negligence is required to be held on the
part of the opponent No.2 and 25% negligence on the part of the
petitioner. Hence, I find the issue No.1 and 2 accordingly.
6. The
Claims Tribunal has committed gross error in coming to conclusion
that there is 25% contributory negligence of claimant in absence of
any evidence which found on record. Panchnama Exh.48 not giving real
picture of accident. Merely submission was made by claimant before
Claims Tribunal that he has seen the opposite vehicle from 10 ft. to
15 ft., but in absence of evidence of respondent No.2 who was not
examined before Claims Tribunal, the conclusion of Claims Tribunal
that claimant has not taken steps to prevent the accident and
therefore there is some negligence of claimant is contrary to
evidence which are on record. Therefore finding in respect to
negligence decided by Claims Tribunal, 25% contributory negligence is
required to be set aside because it was a case of sole negligence of
respondent No.2 who was a driver of opposite motorcycle. Therefore,
according to my opinion, there is no contributory negligence of
claimant is proved before Claims Tribunal. Therefore claimant is
entitled amount of compensation without deducting 25% contributory
negligence as decided by Claims Tribunal.
7. The
Claims Tribunal has committed a calculation error in paragraph 14.
The Claims Tribunal from evidence on record produced by claimant,
Rs.4,000/- income has been assessed and 14.4% disability as body as
whole has been accepted. The monthly loss of income comes to Rs.576
and yearly it comes to Rs.6,912/-, and considering 17 multiplier
looking to age group of claimant 30 to 35 years then the net amount
comes to Rs.1,17,504/-, instead of that Claims Tribunal has awarded
amount Rs.1,05,400/-. Therefore claimant is entitled difference of
Rs.12,104/- from respondent. The Claims Tribunal has also committed
gross error in awarding amount Rs.12,000/- for head of pain, shock
and sufferings. Looking to evidence on record and operation was
carried out by claimant in hospital of Dr.Manoj Joshi and plate was
inserted and was discharged from hospital on 12.7.2000 and also
considering injury of fracture of right leg and initially he was
admitted in V.S.Hospital and thereafter he was transferred to
Dr.Manoj Joshi hospital, therefore, Rs.12,000/- which has been
awarded on pain, shock and suffering is on lower side. According to
my opinion, claimant is entitled Rs.30,000/- being amount of
compensation for pain, shock and sufferings. Accordingly enhanced
amount comes to Rs.18,000/-.
8. In
view of aforesaid discussions and observations made by this Court
after considering submissions made by both learned advocates, the
enhanced amount comes to Rs.12,104/- for future loss of income,
Rs.18,000/- for enhanced amount for pain, shock and sufferings and
Rs.48,600/- which was deducted for 25% negligence on part of claimant
is now the claimant is entitled Rs.48,600/-, which total amount comes
to Rs.78,704/- which recovered from respondent Insurance Company
with 8% interest from date of filing claim petition till realisation
of this petition with proportionate cost from opponents jointly and
severally. Accordingly, award passed by Claims Tribunal, Ahmedabad,
challenged in present appeal is required to be modified as referred
above and appeal is partly allowed with a direction to respondents to
pay Rs.78,704/- with 8% interest from date of claim petition to
deposit before Claims Tribunal, Ahmedabad, within a period of two
months from the date of receipt of copy of present order. After
realising said amount from the respondents, it is directed to Claims
Tribunal, Ahmedabad to pay entire amount by Account Payee Cheque in
name of Mohammed @ Nurmohammed Kureshi after proper verification.
( H.K.
RATHOD, J. )
syed/
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