{"id":65612,"date":"2011-09-30T00:00:00","date_gmt":"2011-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramchandra-vs-arvindkumar-on-30-september-2011"},"modified":"2016-07-18T14:51:06","modified_gmt":"2016-07-18T09:21:06","slug":"ramchandra-vs-arvindkumar-on-30-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramchandra-vs-arvindkumar-on-30-september-2011","title":{"rendered":"Ramchandra vs Arvindkumar on 30 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ramchandra vs Arvindkumar on 30 September, 2011<\/div>\n
Author: Jayant Patel, R.M.Chhaya,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/1723\/1997\t 28\/ 28\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No.1723 of 1997\n \n\n For\nApproval and Signature:\n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL\t\tSd\/-\n \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE\nR.M.CHHAYA\t\tSd\/- \n=====================================================\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\t \n\t\t\t \n\nYES\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\t \n\t\t\t \n\nNO\n\t\t\n\t\n\n \n\n=====================================================\n \n\nRAMCHANDRA\nSINDJI CHAUHAN & 2 - Appellant(s)\n \n\nVersus\n \n\nARVINDKUMAR\nS MEHTA & 1 - Respondent (s)\n \n\n===================================================== \nAppearance\n: \nMR\nSUNIL PARIKH for MR\nRAJNI H MEHTA for the Appellants\nMR YN RAVANI for Respondent(s) : 1, \nNone for Respondent(s) :\n2, \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\n            and\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE R.M.CHHAYA\n\t\t\n\t\n\n \n\nDate\n: 30\/09\/2011 \n\n \n\n CAV\nJUDGMENT\n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE R.M.CHHAYA)<\/p>\n
The
\n\tpresent appeal arises out of the common judgment and award dated
\n\t22.01.1997 passed by the Motor Accident Claims Tribunal (Main),
\n\tSurendranagar (the Tribunal) in M.A.C.P. Nos.340\/93, 380\/93 and
\n\tallied matters. The present appeal relates to claimant of M.A.C.P.
\n\tNo.340\/93, wherein the Tribunal has awarded Rs.14,92,684\/- holding
\n\tthe present appellants and respondent No.2, the insurance company,
\n\tjointly and severally liable, along with interest @ 12% from the
\n\tdate of the application till realization.\n<\/p>\n
The
\n\tfacts arising out of the present appeal are that the claimant, a
\n\tsurgeon by profession, was owner of an ambassador car bearing
\n\tRegistration No. GAY-9044. The claimant had gone for pilgrimage to
\n\tShree Nathdwara and was returning back at about 1.00 a.m. on
\n\t06.12.1992. The claimant was driving his vehicle on Ahmedabad-Rajkot
\n\tHighway and was proceeding towards Rajkot. It is the case of the
\n\tclaimant that he was accompanied by his friend-Shri Haribhai
\n\tKhimjibhai Kothari, who was sitting on the front seat of the car
\n\talong with the claimant, and wife of the  claimant, Dr. Smitaben
\n\tArvindkumar Mehta, his son Niral Arvindkumar Mehta and wife of Shri
\n\tHaribhai Kothari were sitting on the rear seat of the car. It is the
\n\tcase of the claimant that the truck owned by the present appellants
\n\tbearing Registration No.GJ-15-T-1081 was coming towards Ahmedabad
\n\tfrom Rajkot. It is particularly the case of the claimant that the
\n\tdriver of the truck, appellant No.1 herein, was driving the truck on
\n\tthe wrong side of the road in rash and negligent manner, with
\n\texcessive speed and with full light. It is the case of the claimant
\n\tthat as soon as he saw the truck coming on the wrong side, he slowed
\n\tdown the speed of his vehicle and took it further extreme on the
\n\tleft of the road. It is the case of the claimant that because of the
\n\texcessive speed and careless and negligent driving of the truck,
\n\tappellant No.1 had lost control over the truck and dashed it with
\n\tthe motorcar of the claimant resulting into accident. It is the case
\n\tof the claimant that all passengers travelling in the car received
\n\tserious injuries and the car was heavily damaged due to the said
\n\taccident. It is also the case of the claimant that front portion of
\n\this car smashed in such a manner that the radiator, battery, right
\n\thead light, including A\/c. machine of the car, etc., were completely
\n\tdamaged.\n<\/p>\n
It
\n\t\tis also the case of the claimant that because of the serious
\n\t\tinjuries received by him, he had to undergo excessive treatment at
\n\t\tdifferent hospitals and had also to undergo plastic surgery. It is
\n\t\talso the case of the claimant that because of the injuries received
\n\t\tin the said accident he, being a surgeon, has acquired partial
\n\t\tincapacity, which prevents the claimant from performing major
\n\t\toperations upon his patients and due to which the claimant has
\n\t\tsuffered loss of income and has acquired permanent disability to
\n\t\twork with the same efficiency and zeal as a surgeon.\n<\/p>\n
The
\n\t\tclaimant, therefore, preferred the present claim petition being
\n\t\tM.A.C.P. No.340 of 1993 under Section 166 of the Motor Vehicles
\n\t\tAct, 1988 (the Act) and raised consolidated claim of Rs.24,30,000\/-
\n\t\tunder different heads such as loss of income, permanent disability
\n\t\tand other losses. The claimant adduced oral as well as documentary
\n\t\tevidence. The appellants herein as well as respondent
\n\t\tNo.2-insurance company filed a joint written statement and defended
\n\t\tthe claim so raised by the claimant. The Tribunal, after
\n\t\tappreciating the evidence so adduced before it, by the impugned
\n\t\tjudgment, awarded Rs.14,92,684\/- along with interest @ 12% from the
\n\t\tdate of the application till realization.\n<\/p>\n
It
\n\t\tmay be noted that originally the present appeal was preferred by
\n\t\tthe driver of the truck – appellant No.1, owner of the truck\n<\/p>\n
\t\t– appellant No.2 as well as the present respondent No.2-Insurance
\n\t\tcompany. Thereafter this Hon’ble Court vide order dated 11.08.2008
\n\t\tpassed in Civil Application No.2783 of 2008 permitted the original
\n\t\tappellant No.3-Insurance Company to be transposed as respondent
\n\t\tNo.2 in the present appeal and hence, the present appeal is filed
\n\t\tby the original opponents i.e. the driver and the owner of the
\n\t\ttruck.\n<\/p>\n
Heard
\n\tMr.Sunil Parikh, learned counsel, for Mr.R.H.Mehta for the
\n\tappellants and Mr.Y.N.Ravani, learned counsel for respondent No.1.\n<\/p>\n
Mr.Parikh
\n\tfor the appellants has taken us through the impugned judgment and
\n\taward as well as the panchnama (Exh.25), F.I.R. (Exh.113),
\n\tdeposition of claimant-Dr. Arvindkumar Shantilal Mehta (Exh.35,),
\n\tdeposition of Shri Haribhai Khimjibhai Kothari (Exh.49), deposition
\n\tof Shri Pramodbhai Vasantbhai Vora, the insurance surveyor
\n\t(Exh.138), income-tax returns of the claimant (Exh.39 & Exh.40),
\n\tdepositions of driver and cleaner recorded by the police in the
\n\tcriminal case (Exh.116 and Exh.117) as well as photographs (Exh.137
\n\t& Exh.138). It was submitted that the Tribunal has erred in
\n\tcoming to the conclusion that there is 100% negligence on the part
\n\tof the driver of the truck. It was further submitted that the
\n\tTribunal has not considered the evidence on record and has arrived
\n\tat an erroneous finding to the effect that the truck was driven by
\n\tthe driver on the wrong side. It was submitted that, therefore, the
\n\tTribunal has erred in accepting the version of the claimant that the
\n\tdriver of the truck was driving the truck on the wrong side of the
\n\tAhmedabad-Rajkot Highway at an excessive speed.  It was submitted
\n\tthat as the very basis of the claim awarded is on a wrong premise
\n\tand hence the conclusion arrived at by the Tribunal as regards 100%
\n\tnegligence is therefore not only without basis but dehors the
\n\tevidence on record. It was submitted that the ocular evidence in the
\n\tform of deposition of the claimant, his wife, his son as well as his
\n\tfriend is contrary to the documentary evidence in the form of
\n\tpanchnama (Exh.25) as well as F.I.R. (Exh.113), given by the son of
\n\tthe claimant, which is given and recorded immediately after the
\n\taccident occurred. It was submitted that thus, in order to justify
\n\tthe claim as claimed for in the petition, the claimant and the
\n\twitnesses examined for and on behalf of the claimant have changed
\n\tthe version as regards the manner in which the accident had occurred
\n\tincluding most important aspect as regards the place at which the
\n\taccident had occurred. It was therefore submitted that the
\n\tconclusion arrived at by the Tribunal as regards 100% negligence of
\n\tthe driver of the truck being erroneous and, therefore, the appeal
\n\tdeserves to be accepted by this Hon’ble Court on that count.\n<\/p>\n
Relying
\n\t\tupon the documents Exh.39 and Exh.40, being the Income Tax returns
\n\t\tof the claimant, it was submitted that the income assessed by the
\n\t\tTribunal at Rs.16,000\/- p.m. is not supported by any evidence on
\n\t\trecord. It was further submitted that on examination of the profit
\n\t\tand loss account as submitted by the claimant, the income of the
\n\t\tclaimant by adopting any method of calculation would not be more
\n\t\tthan Rs.8,000\/-. It was submitted that thus, the figure of
\n\t\tRs.16,000\/- arrived at by the Tribunal is merely a guesswork on the
\n\t\tpart of the Tribunal. It was submitted that the claimant has not
\n\t\tbeen able to prove the disability acquired by the claimant because
\n\t\tof the accident.\n<\/p>\n
It
\n\t\twas submitted that on correct appreciation of photographs at
\n\t\tExh.137 and 138 it would be clear that the driver of the truck was
\n\t\tnot driving the truck on the wrong side. It was submitted that if
\n\t\tthe said fact would have been true the accident would have occurred
\n\t\tin a different manner. It was submitted that as is evident from the
\n\t\tevidence on record that the driver of the truck did his best to
\n\t\tavoid the accident and made an attempt to stop the vehicle by
\n\t\tapplying the break with special efforts but, as the car of the
\n\t\tclaimant as being driven in an excessive speed, dashed with the
\n\t\ttruck whereby the front wheels of the driver side of the truck were
\n\t\tbroken, including its excel and the truck became stationery, in
\n\t\tnon-mobile condition.\n<\/p>\n
Attention
\n\t\twas invited to the fact that as can be seen from the evidence on
\n\t\trecord there were break marks of the truck visible from a distance
\n\t\tof 30 mtrs. It was further submitted that even if one comes to the
\n\t\tconclusion that the driver of the truck was negligent he cannot be
\n\t\theld to be 100% negligent. It was submitted that the Tribunal ought
\n\t\tto have held that the accident occurred due to composite negligence
\n\t\tof both the drivers wherein negligence of the driver of the car was
\n\t\tgreater than that of the truck driver.\n<\/p>\n
It
\n\t\twas also submitted that this Hon’ble Court has rightly permitted
\n\t\tthe present respondent No.2-Insurance Company to be transposed as
\n\t\trespondent No.2 in the present  appeal, as per order dated
\n\t\t11.08.2008 passed in Civil Application No.2783 of 2008. It was
\n\t\tsubmitted that the said order is in accordance with law. Reliance
\n\t\twas also placed upon the judgment of the Apex Court in case of  V.
\n\t\tSubbulakshmi and Ors. v. S. Lakshmi and Anr., AIR 2008 SC 1256.
\n\t\tIt was further submitted that the claimant have not challenged the
\n\t\tsaid order and, therefore, the said order has attained finality.\n<\/p>\n
It
\n\t\twas further submitted that thus, the Tribunal has wrongly come to
\n\t\tthe conclusion that the driver of the truck is 100% negligent and
\n\t\tthe income, which is estimated by the Tribunal, is based on no
\n\t\tevidence but only on guesswork on the part of the Tribunal and,
\n\t\ttherefore, the quantum, as calculated for coming to the conclusion
\n\t\tthat the claimant is entitled to claim of Rs.12,48,000\/- towards
\n\t\tfuture loss of income due to permanent disability resultantly has
\n\t\twrongly passed the impugned judgment and award of Rs.14,92,684\/-.
\n\t\tIt was, therefore, submitted that the appeal deserves to be
\n\t\taccepted and allowed as prayed for.\n<\/p>\n
As
\n\tagainst this, Mr.Ravani for the claimant assailed the impugned
\n\tjudgment and award. It was submitted that no independent advocate
\n\thas appeared on behalf of the driver and the insurance company and
\n\tonly with a view to raise contentions which are otherwise not
\n\tavailable to the insurance company and with a view to avoid the
\n\tclaimant for getting benefit of benevolent scheme of the Act, the
\n\tinsurance company got itself transposed as the respondent in the
\n\tpresent appeal. It was submitted that the present appeal is not
\n\tmaintainable on behalf of the driver and owner of the truck.\n<\/p>\n
It
\n\t\twas submitted that in fact before the Tribunal the driver, owner as
\n\t\twell as the insurance company have collectively defended the claim
\n\t\tpetition and have in fact filed a joint written statement. It was
\n\t\tsubmitted that the present appeal is contrary to the provisions of
\n\t\tSections 149 and 170 of the Act and on this ground alone the appeal
\n\t\tdeserves to be dismissed. It was further submitted that the
\n\t\tTribunal has not committed any error in coming to the conclusion
\n\t\tthat the truck was coming from the wrong side. It was submitted
\n\t\tthat looking to the photographs (Exhs.136-137) it is clear that the
\n\t\tdriver of the truck was driving the truck at a very excessive speed
\n\t\ton wrong side which has resulted into complete damage of the car.
\n\t\tIt was submitted that also it is clear from the said photographs
\n\t\tthat the driver of the truck had crossed the white demarcated line
\n\t\ton the highway. It was therefore submitted that after correct
\n\t\tappreciation of evidence on record, the Tribunal has opined that
\n\t\tthe truck was being driven on the wrong side. It was submitted that
\n\t\tthe Tribunal has taken into consideration this fact and has rightly
\n\t\tcome to the conclusion that the driver of the truck was the solely
\n\t\tnegligent for the accident. It was, however, submitted that even if
\n\t\tany contributory negligence is to be attributed to the claimant,
\n\t\tlooking to the manner in which the accident has occurred, and
\n\t\ttaking into consideration the size of the truck, the claimant
\n\t\tcannot be attributed with contributory negligence of more than 10%.
\n\t\tIt was also submitted that bare reading of the panchnama, F.I.R.,
\n\t\tas well as the statements of the driver and cleaner recorded by the
\n\t\tpolice establish the fact beyond the doubt that the driver of the
\n\t\ttruck was driving such a heavy and huge vehicle at an excessive
\n\t\tspeed in rash and negligent manner on the wrong side of the road.
\n\t\tIt was, therefore submitted that the conclusion arrived at by the
\n\t\tTribunal does not call for any interference by this Hon’ble Court.\n<\/p>\n
It
\n\t\twas submitted that over and above this, in order to see that the
\n\t\ttruth does not come on record even after the written statements
\n\t\tfiled by the driver and owner of the truck, they have not been
\n\t\texamined before the Tribunal and, therefore, an adverse inference
\n\t\tis required to be drawn by this Hon’ble Court.\n<\/p>\n
Relying
\n\t\tupon the oral testimony of the witnesses as well as medical
\n\t\tevidence on record it was submitted that the claimant was renowned
\n\t\tsurgeon at Rajkot and had sizable practice as a surgeon. However,
\n\t\tbecause of the accident the claimant has acquired permanent
\n\t\tdisability, which precludes him from conducting major operations
\n\t\tand he has to depend on outsourcings of other surgeons, which has
\n\t\tresulted into sizable loss of income. It was also submitted that
\n\t\teven before the occurrence of the accident, the claimant had an
\n\t\testablished practice as a surgeon, which is reflected in the income
\n\t\ttax returns (Exh.39 and Exh.40). Attention was also invited to the
\n\t\tdeposition of the claimant as well as his wife-Dr.Smitaben and the
\n\t\tdoctors, who had treated the claimant and submitted that the
\n\t\taccident has adversely affected the professional capability of the
\n\t\tclaimant. It was submitted that the Tribunal has rightly read and
\n\t\tappreciated those piece of evidence and has rightly assessed the
\n\t\tincome of the claimant. It was submitted that the Tribunal has also
\n\t\ttaken into consideration the prospective income and has rightly
\n\t\tcome to the conclusion that the income of the claimant is
\n\t\tRs.16,000\/- p.m. It was therefore, submitted that the award of the
\n\t\tTribunal in favour of the claimant under the head of future loss of
\n\t\tincome is legal and proper. It was therefore, submitted that the
\n\t\tappeal is devoid of any merits and deserves to be dismissed.\n<\/p>\n
We
\n\thave examined the record and proceedings of the case in context of
\n\tthe rival submissions made by both the sides.\n<\/p>\n
The
\n\tclaimant is examined at Exh.35. Upon reading the deposition of the
\n\tclaimant we find in his examination-in-chief that he has stated the
\n\tmanner in which the accident had taken place and has maintained that
\n\tthe driver of the truck was driving the truck at an excessive speed
\n\tand with full light on the wrong side of the road. He has further
\n\taverred that when he saw the truck he slowed down his car and took
\n\this car further left of the road still, however, the truck collided
\n\twith his car and he became unconscious. He has also stated that the
\n\tnature of injuries received upon his person in detail and has also
\n\tmentioned the treatment taken by him in different hospitals as
\n\tindoor patient, including the fact that he had to undergo plastic
\n\tsurgery of his right eye.  He has also stated that before the
\n\taccident he used to undergo major surgeries but because of the
\n\taccident he has acquired permanent disability to such an extent that
\n\the is not able to undertake even minute surgery and has to outsource
\n\tthe services of other surgeons. He has stated that his monthly
\n\tincome was to the tune of Rs.20,000\/- from his profession as a
\n\tdoctor. He has also narrated that during the course of accident he
\n\thas lost his valuable watch of Rado company and has also lost his
\n\tspectacles, which is of day and night anti-coloured lences. He has
\n\talso stated that because of the accident he acquired disability
\n\twhich has affected his future income. He has also stated the manner
\n\tin which the car has been damaged to almost non-use.\n<\/p>\n
In
\n\t\this cross-examination, we find that he has stated that his income
\n\t\tfrom the period 01.04.1991 to 31.03.1992 from medical practice was
\n\t\tRs.46,685\/- and the income of clinic was Rs.1,59,160\/-, whereas the
\n\t\tincome for the period from 01.04.1992 to 31.03.1993 from medical
\n\t\tpractice was to the tune of Rs.51,085\/- and the income of clinic
\n\t\twas Rs.1,51,000\/-. He has stood the test of cross-examination so
\n\t\tfar as his disability to conduct the major operations. In his
\n\t\tfurther cross-examination we find that he has based his case in so
\n\t\tfar as the present income as well as future income is concerned. We
\n\t\tfurther find that he has admitted the fact that he cannot clearly
\n\t\tsay that whether he had applied break of his car or not.\n<\/p>\n
The
\n\t\tclaimant has also examined his friend and one of the
\n\t\tco-travellers-Shri Haribhai Khimjibhai Kothari, who was sitting on
\n\t\tthe front seat of the car at the time of the accident as claimant
\n\t\twitness No.2 (Exh.49). On reading the evidence of the said witness
\n\t\twe find that he has narrated in his examination-in-chief  the
\n\t\tmanner in which the accident had taken place and has maintained
\n\t\tthat the driver of the truck was driving the truck at an excessive
\n\t\tspeed on the wrong side and because of the negligence of the driver
\n\t\tof the truck, the truck collided with the car. He has also narrated
\n\t\tthe treatment taken by him as well as his own income from business.
\n\t\tHe has also stated\u00a0in his cross-examination that he has
\n\t\tacquired 50% permanent disability in relation to his ear and 15%
\n\t\tpermanent disability in relation to his legs. In his
\n\t\tcross-examination we find that he has stood the test of
\n\t\tcross-examination in relation to his income is concerned.\n<\/p>\n
Similarly
\n\t\twe find that the claimant has also examined Dr.Smitaben Arvindkumar
\n\t\tMehta, wife of the claimant (Exh.72), as well as Shri Niral
\n\t\tArvindkumar Mehta, son of the claimant (Exh.111), who is the
\n\t\toriginal complainant of F.I.R. (Exh.113). Both these witnesses have
\n\t\tmaintained the manner in which the accident had taken place as well
\n\t\tas the fact that the driver of the truck was driving the truck at
\n\t\tan excessive speed, on wrong side of the road and the treatment
\n\t\ttaken by the claimant as well as the injured persons in the
\n\t\taccident.\n<\/p>\n
In
\n\t\tcross-examination of witness-Shri Niral Arvindkumar Mehta we find
\n\t\tthat he has stated that he considered the fact that the truck was
\n\t\tcoming from the wrong side to be an important factor, however, as
\n\t\the was in tension when he lodged the F.I.R., he could not state
\n\t\tthat fact in the complaint.\n<\/p>\n
Over
\n\t\tand above this, the claimant has also examined Dr.Bhaumik N.
\n\t\tBhayani (Exh.76), who had treated the claimant on being transferred
\n\t\tto Limbdi Hospital to Rajkot and conducted operation upon the
\n\t\tclaimant. Upon reading the evidence of this witness we find that he
\n\t\thad noticed major injury on the right eye of the claimant. He had
\n\t\talso noticed injuries on the nose and face of the claimant, which
\n\t\thas resulted into deface of the face of the claimant. This witness
\n\t\thas opined that the claimant has acquired 21% permanent disability
\n\t\tand even in his cross-examination we find that he has stated that
\n\t\tsuch permanent disability is detrimental to day-to-day professional
\n\t\tactivities of the claimant as a doctor.\n<\/p>\n
The
\n\t\tclaimant has examined Dr. Mahesh Pranlalbhai Maru, an orthopedic
\n\t\tsurgeon (Exh.82), who had operated the claimant and has opined that
\n\t\tthe claimant has acquired 20% permanent disability on the right
\n\t\thand and overall permanent disability to the tune of 12%.\n<\/p>\n
The
\n\t\tclaimant has also examined the ophthalmologist Dr.Kishor
\n\t\tJatashankar Doshi (Exh.90), who had treated the claimant for the
\n\t\tinjuries on the left eye. We find that this witness has opined that
\n\t\tthe claimant has acquired 20% permanent disability so far as the
\n\t\tcapability of eye is concerned.\n<\/p>\n
It
\n\t\tmay also be noted that the claimant has examined Dr.Harshad
\n\t\tShantilal Mehta (Exh.117), the physician having\u00a0his hospital
\n\t\tat Vadodara, who had treated the claimant. However, upon reading
\n\t\tthe deposition of the said witness we find that except the fact
\n\t\tthat he examined and treated the claimant for his ailment of the
\n\t\tchest because of the accident, the claimant has not been able to
\n\t\ttake his case further.\n<\/p>\n
Upon
\n\t\treading the evidence of claimant witness, Shri Pramodbhai
\n\t\tVasantbhai Vora, the insurance surveyor (Exh.138), we find that he
\n\t\thad surveyed the damaged car as well as visited the place of
\n\t\taccident and has submitted his report estimating the loss. In his
\n\t\tcross-examination we find that he had visited the place of accident
\n\t\tand had taken photographs of the truck trailer. We also find that
\n\t\the has clearly stated in his cross-examination that the truck
\n\t\ttrailer was not able to move from the place of the accident.\n<\/p>\n
\tThe contention raised by the learned advocate for the claimant that
\n\tthe insurance company has been wrongly transposed as the respondent
\n\tin the present appeal as aforesaid and the appeal is not
\n\tmaintainable at the behest of the owner and the driver of the truck.
\n\tIt is an admitted position that the insurance company has been
\n\tpermitted to be transposed as the respondent in the present\u00a0appeal
\n\tand, therefore, in the array of the present appeal the owner and the
\n\tdriver are the only appellants. It would be worthwhile to mention
\n\tthat Supreme Court of India while examining whether the owner of the
\n\tvehicle can prefer an appeal and whether Section 173 of the Act
\n\tconfers any right to any aggrieved person to prefer an appeal has
\n\tdecided in the case of V. Subbulakshmi and Ors. Vs. S. Lakshmi
\n\tand Anr. (supra) in Paragraph Nos.8 to 14 as under:\n<\/p>\n
“8.\n<\/p>\n
We may at the outset notice that the High Court was although of the
\nopinion that no appeal would be maintainable at the instance of an
\ninsurance company unless permission of the court was obtained by it
\nin terms of Section 170 of Act, observed that the owner of the
\nvehicle being an appellant, the appeal would be maintainable at his
\ninstance.\n<\/p>\n
9. The relevant statutory
\nprovisions, being Sections 149(2), 170 and 173 may be noticed by us,
\nwhich are as under :\n<\/p>\n
  “149.\n<\/p>\n
(2) No sum shall be payable by an insurer under sub-section (1) in
\nrespect of any judgment or award unless, before the commencement of
\nthe proceedings in which the judgment of award is given the insurer
\nhad notice through the Court or, as the case may be, the Claims
\nTribunal of the bringing of the proceedings, or in respect of such
\njudgment or award so long as execution is stayed thereon pending an
\nappeal; and an insurer to whom notice of the bringing of any such
\nproceedings is so given shall be entitled to be made a party thereto
\nand to defend the action on any of the following grounds, namely :-\n<\/p>\n
(a) that there has been a breach
\nof a specified condition of the policy, being one of the following
\nconditions, namely :-\n<\/p>\n
(i) a condition excluding the
\nuse of the vehicle –\n<\/p>\n
(a) for hire or reward, where
\nthe vehicle is on the date of the contract of insurance a vehicle not
\ncovered by a permit to ply for hire or reward, or<\/p>\n
(b) for organised racing and
\nspeed testing, or<\/p>\n
(c) for a purpose not allowed by
\nthe permit <\/p>\n
under which the vehicle is used,
\nwhere the vehicle is a transport vehicle, or<\/p>\n
(d) without side-car being
\nattached where the vehicle is a motor cycle; or<\/p>\n
(ii) a condition excluding
\ndriving by a named person or persons or by any person who is not duly
\nlicensed, or by any person who has been disqualified for holding or
\nobtaining a driving licence during the period of disqualification; or<\/p>\n
(iii) a condition excluding
\nliability for injury caused or contributed to by conditions of war,
\ncivil war, riot or civil commotion; or<\/p>\n
(b) that the policy is void on
\nthe ground that it was obtained by the nondisclosure of a material
\nfact or by a representation of fact which was false in some material
\nparticular.\n<\/p>\n
Section 170 – Impleading insurer
\nin certain cases – Where in the course of any inquiry, the Claims
\nTribunal is satisfied that –\n<\/p>\n
(a) there is collusion between
\nthe person making the claim and the person against whom the claim is
\nmade, or<\/p>\n
(b) the person against whom the
\nclaim is made has failed to contest the claim, it may, for reasons to
\nbe recorded in writing, direct that the insurer who may be liable in
\nrespect of such claim, shall be impleaded as a party to the
\nproceeding and the insurer so impleaded shall thereupon have, without
\nprejudice to the provisions contained in sub-section (2) of section
\n149, the right to contest the claim on all or any of the grounds that
\nare available to the person against whom the claim has been made.\n<\/p>\n
Section 173 – Appeals – (1)
\nSubject to the provisions of sub-section (2) any person aggrieved by
\nan award of a Claims Tribunal may, within ninety days from the date
\nof the award, prefer an appeal to the High Court:\n<\/p>\n
Provided that no appeal by the
\nperson who is required to pay any amount in terms of such award shall
\nbe entertained by the High Court unless he has deposited with it
\ntwenty-five thousand rupees or fifty per cent, of the amount so
\nawarded, whichever is less, in the manner directed by the High Court:\n<\/p>\n
Provided further that the High
\nCourt may entertain the appeal after the expiry of the said period of
\nninety days, if it is satisfied that the appellant was prevented by
\nsufficient cause from preferring the appeal in time.\n<\/p>\n
(2) No appeal shall lie against
\nany award of a Claims Tribunal if the amount in dispute in the appeal
\nis less than ten thousand rupees.”\n<\/p>\n
10. The maintainability of an
\nappeal by the Insurance Company together with the owner of the
\nvehicle came up for consideration before this Court in Narendra Kumar
\nand Another Vs. Yarenissa and Others [(1998) 9 SCC 202], wherein it
\nwas clearly held that an appeal by the owner of the vehicle is
\nmaintainable despite the fact that in terms of an Award, he is to be
\nreimbursed by the insurance company, stating;\n<\/p>\n
“6……If the award has
\ngone against the tortfeasors it is difficult to accept the contention
\nthat the tortfeasor is not “an aggrieved person” as has
\nbeen held by some of the High Courts vide Kantilal and Bros. v.
\nRamarani Debi, New India Assurance Co. Ltd. v. Shakuntla Bai, Nahar
\nSingh v. Manohar Kumar, Radha Kishan Sachdeva v. Fit. Lt. L.D. Sharma
\nmerely because under the scheme of Section 96 if a decree or award
\nhas been made against the tortfeasors the insurer is liable to answer
\njudgment “as if a judgment-debtor”. That does not snatch
\naway the right of the tortfeasors who are jointly and severally
\nliable to answer judgment from preferring an appeal under Section
\n110-D of the Act. If for some reason or the other the claimants
\ndesire to execute the award against the tortfeasors because they are
\nnot in a position to recover the money from the insurer the law does
\nnot preclude them from doing so and, therefore, so long as the award
\nor decree makes them liable to pay the amount of compensation they
\nare aggrieved persons within the meaning of Section 110-D and would
\nbe entitled to prefer an appeal. But merely because a joint appeal is
\npreferred and it is found that one of the appellants, namely, the
\ninsurer was not competent to prefer an appeal, we fail to see why the
\nappeal by the tortfeasor, the owner of the vehicle, cannot be
\nproceeded with after dismissing or rejecting the appeal of the
\ninsurer. To take a view that the owner is not an aggrieved party
\nbecause the Insurance Company is liable in law to answer judgment
\nwould lead to an anomalous situation in that no appeal would lie by
\nthe tortfeasors against any award because the same logic applies in
\nthe case of a driver of the vehicle. The question can be decided a
\nlittle differently. Can a claim application be filed against the
\nInsurance Company alone if the tortfeasors are not the aggrieved
\nparties under Section 110-D of the Act? The answer would obviously be
\nin the negative. If that is so, they are persons against whom the
\nclaim application must be preferred and an award sought for otherwise
\nthe insurer would not be put to notice and would not be liable to
\nanswer judgment as if a judgment-debtor. Therefore, on first
\nprinciple it would appear that the contention that the owner of a
\nvehicle is not an aggrieved party is unsustainable.”\n<\/p>\n
It was furthermore held;\n<\/p>\n
“7. For the reasons stated
\nabove, we are of the opinion that even in the case of a joint appeal
\nby insurer and owner of offending vehicle if an award has been made
\nagainst the tortfeasors as well as the insurer even though an appeal
\nfiled by the insurer is not competent, it may not be dismissed as
\nsuch. The tortfeasor can proceed with the appeal after the
\ncause-title is suitably amended by deleting the name of the insurer.”\n<\/p>\n
11. However, another Bench of
\nthis Court in Chinnama George and Others Vs. N.K. Raju and Another
\n[(2000) 4 SCC 130] opined :\n<\/p>\n
“6. Admittedly, none of the
\ngrounds as given in Sub-section (2) of Section 149 exist for the
\ninsurer to defend the claims petition. That being so, no right
\nexisted in the insurer to file appeal against the award of the Claims
\nTribunal. However, by adding N.K. Raju, the owner as co-appellant, an
\nappeal was filed in the High Court which led to the impugned
\njudgment. None of the grounds on which insurer could defend the
\nclaims petition was the subject-matter of the appeal as far as the
\ninsurer is concerned. We have already noticed above that we have not
\nbeen able to figure out from the impugned judgment as to how the
\nowner felt aggrieved by the award of the Claims Tribunal. The
\nimpugned judgment does not reflect any grievance of the owner or even
\nthat of the driver of the offending bus against the award of the
\nClaims Tribunal. The insurer by associating the owner or the driver
\nin the appeal when the owner or the driver is not an aggrieved person
\ncannot be allowed to mock at the law which prohibit the insurer from
\nfiling any appeal except on the limited grounds on which it could
\ndefend the claims petition. We cannot put our stamp of approval as to
\nthe validity of the appeal by the insurer merely by associating the
\ninsured. Provision of law cannot be undermined in this way. We have
\nto give effect to the real purpose to the provision of law relating
\nto the award of compensation in respect of the accident arising out
\nof the use of the motor vehicles and cannot permit the insurer to
\ngive him right to defend or appeal on grounds not permitted by law by
\na backdoor method. Any other interpretation will produce unjust
\nresults and open gates for the insurer to challenge any award. We
\nhave to adopt purposive approach which would not defeat the broad
\npurpose of the Act. Court has to give effect to true object of the
\nAct by adopting purposive approach.\n<\/p>\n
7. Sections 146, 147, 149 and
\n173 are in the scheme of the Act and when read together mean : (1) it
\nis legally obligatory to insure the motor vehicle against third party
\nrisk. Driving an uninsured vehicle is an offence punishable with an
\nimprisonment extending up to three months or the fine which may
\nextend to Rs. 1,000\/- or both; (2) Policy of insurance must comply
\nwith the requirements as contained in Section 147 of the Act; (3) It
\nis obligatory for the insurer to satisfy the judgments and awards
\nagainst the person insured in respect of third party risks. These are
\nSub-sections (1) and (7) of Section 149. Grounds on which insurer can
\navoid his liability are given in Sub-section (2) of Section 149.\n<\/p>\n
8. If none of the conditions as
\ncontained in Sub-section (2) of Section 149 exist for the insurer to
\navoid the policy of insurance he is legally bound to satisfy the
\naward, he cannot be a person aggrieved by the award. In that case
\ninsurer will be barred from filing any appeal against the award of
\nthe Claims Tribunal.”\n<\/p>\n
12. In Chinnamma George, the
\nowner did not challenge the findings of the Tribunal that the bus was
\nbeing driven by the driver in a rash and negligent manner. It was
\ntherefore, held that the owner was not an aggrieved person to
\nmaintain an appeal. It was in the aforementioned context this Court
\nobserved that none of the grounds as laid down under sub-Section (2)
\nof Section 149 of the Act having been satisfied, an appeal by the
\nInsurance Company was not maintainable, observing that an insurer
\nhaving a limited area to defend the claim petition, it cannot
\ncircumvent the same by associating itself with the owner\/driver in an
\nappeal when the owner\/ driver is not an aggrieved person and, thus,
\ncannot be allowed to mock at the law.\n<\/p>\n
13. In the instant case, the
\nowner of the bus was an aggrieved person. He could maintain an appeal
\nof his own. Section 173 of the Act confers a right on any aggrieved
\nperson to prefer an appeal from an award.\n<\/p>\n
14. In the
\npresent case, it is not necessary for us to go into the larger
\nquestion as to whether having regard to the bar contained in
\nsub-Section (2) of Section 149 of the Act, the second respondent
\ncould have preferred an appeal questioning the quantum of
\ncompensation, as the High Court held that the appeal, even after
\ndeletion of the second respondent from the array of the parties, the
\nappeal preferred by the first respondent was maintainable.”\n<\/p>\n
We, therefore, find that the owner and driver of the truck being
\naggrieved persons have right to file this appeal. Therefore, the
\ncontention raised by the learned advocate for the\u00a0claimant that
\nthe appeal is not maintainable deserves to be negatived.\n<\/p>\n
Before
\n\treverting to decide the contentions raised by both the sides, we
\n\tdeem it appropriate to examine as to how and where the accident had
\n\toccurred. Upon reading panchnama at Exh.25, which was prepared by
\n\tthe police in connection with the investigation carried out by it,
\n\tin furtherance to the F.I.R. (Exh.113) lodged by the son of the
\n\tclaimant, we find that as recorded in the panchnama the truck was
\n\tlying on Rajkot-Ahmedabad highway near Limbdi town with its
\n\tfront side towards East. It is an admitted position that the
\n\tAhmedabad-Rajkot highway is from East to West. On re-appreciating
\n\tthe photographs(Exh.137 & Exh.138), we find that the truck which
\n\twas coming from Rajkot side having its front towards the East was on
\n\tthe left hand side on the highway. Therefore, the finding arrived at
\n\tby the Tribunal based on the oral testimony of the claimant and the
\n\twitnesses examined on behalf of the claimant that the truck was
\n\tcoming on the wrong side is erroneous. However, on further reading
\n\tof the panchnama as well as on further examination of the
\n\tphotographs of the truck, which have produced by the witness of the
\n\tclaimant Shri Pramodbhai Vasantbhai Vora, being the insurance
\n\tsurveyor, we find that the truck had crossed the dividing white
\n\tdemarcation on the road only to some extent on front side. On
\n\tfurther appreciating this piece of evidence we find that the impact
\n\tof the accident upon both the vehicles was of such a grave nature
\n\tthat the front  wheels of the driver side of the truck were
\n\tbroken and the front portion of the tuck had tilted towards the
\n\tother side of the road and crossed the white demarcation line.
\n\tSimilarly, we find that the body of the car had got completely
\n\tsliced down on front half portion resulting into almost completely
\n\tbreakage of the body of the car, the engine, A\/C. and steering.\n<\/p>\n
We
\n\t\talso find that  because of the impact of the accident the car was
\n\t\tbadly damaged in an irreparable situation. Taking into
\n\t\tconsideration the above facts, the only possibility is that the
\n\t\ttruck as well as the car were being driven on their right side i.e.
\n\t\ton left hand side. However, they were driven in rash and negligent
\n\t\tmanner. We also find from the evidence on record that there were
\n\t\tbreak marks of the truck for a distance of about 13 mtrs., which
\n\t\testablish the fact beyond doubt that even though the driver of the
\n\t\ttruck intended to stop the vehicle he could hardly did that and
\n\t\tcould not avoid the accident. Similarly we also find that looking
\n\t\tto the damage received to the car, the claimant, who incidentally
\n\t\twas driving the vehicle, could not control the same as there are no
\n\t\tbreak mark of the car. Thus, we find that the very basis of the
\n\t\tfinding of the Tribunal that the truck was being driven on wrong
\n\t\tside is an apparent error committed by the Tribunal. However, we
\n\t\tare mindful of the fact that the truck with a trailer loaded with a
\n\t\tcontainer on it, admittedly a heavy vehicle has to be driven in a
\n\t\tcareful manner.\n<\/p>\n
On
\n\tre-appreciation of the evidence on record in relation to the
\n\toccurrence of the accident and its impact upon the two vehicles, it
\n\tcannot be said that the driver of the truck was alone negligence for
\n\tthe occurrence of the accident. We find from the evidence on record
\n\tand more particularly on examining the photographs which establishes
\n\tthe fact that the car is completely smashed, it has dashed with the
\n\ttruck with force. We have also gathered from the evidence led by the
\n\tclaimant that the claimant as well as his wife, who was sitting on
\n\tthe rear seat of the car saw the truck coming from the other side
\n\t(according to the claimant from the wrong side) and, therefore, the
\n\tclaimant, who was driving the car took the car further left of the
\n\troad. However, from the evidence it transpires that the manner in
\n\twhich the car is damaged it cannot be believed that the claimant, as
\n\tdriver of the car, acted as a reasonable and reason man to avoid the
\n\tpossibility of collusion with the truck and hence, from the evidence
\n\tit is clearly borne out that the claimant, as driver of the car, was
\n\talso careless. We, therefore, find that the conclusion arrived at by
\n\tthe Tribunal to the effect that the driver of the truck alone was
\n\tnegligent is erroneous.\n<\/p>\n
\tAt this juncture it would be appropriate to refer to the judgment of
\n\tthe Apex Court in the case of  Municipal Corporation of Greater
\n\tBombay Vs. Laxman Iyer & Anr., (2003) 8 SCC 731 wherein word
\n\t“contributory negligence” has been defined and it has
\n\tbeen held as under:\n<\/p>\n
“6.\n<\/p>\n
A plea which was stressed strenuously related to alleged contributory
\nnegligence. Though there is no statutory definition, in common
\nparlance ‘negligence’ is categorised as either composite or
\ncontributory. It is first necessary to find out what is a negligent
\nact. Negligence is omission of duty caused either by an omission to
\ndo something which a reasonable man guided upon those considerations
\nwho ordinarily by reason of conduct of human affairs would do or
\nobligated to, or by doing something which a prudent or reasonable man
\nwould not do. Negligence does not always mean absolute carelessness,
\nbut want of such a degree of a care as is required in particular
\ncircumstances. Negligence is failure to observe, for the protection
\nof the interests of another person, the degree of care, precaution
\nand vigilance which the circumstances justly demand, whereby such
\nother person suffers injury. The idea of negligence and duty are
\nstrictly correlative. Negligence means either subjectively a careless
\nstate of mind, or objectively careless conduct. Negligence is not an
\nabsolute term, but is a relative one; it is rather a comparative
\nterm. No absolute standard can be fixed and no mathematically exact
\nformula can be laid down by which negligence or lack of it can be
\ninfallibly measured in a given case. What constitutes negligence
\nvaries under different conditions and in determining whether
\nnegligence exists in a particular case, or whether a mere act or
\ncourse of conduct amounts to negligence, all the attending and
\nsurrounding facts and circumstances have to be taken into account. It
\nis absence of care according to circumstances. To determine whether
\nan act would be or would not be negligent, it is relevant to
\ndetermine if any reasonable man would foresee that the act would
\ncause damage or not. The omission to do what the law obligate or even
\nthe failure to do anything in a manner, mode or method envisaged by
\nlaw would equally and per se constitute negligence on the part of
\nsuch person. If the answer is in the affirmative, it is a negligent
\nact. Where an accident is due to negligence of both parties,
\nsubstantially there would be contributory negligence and both would
\nbe blamed. In a case of contributory negligence, the crucial question
\non which liability depends would be whether either party could, by
\nexercise of reasonable care, have avoided the consequence of other’s
\nnegligence. Whichever party could have avoided the consequence of
\nother’s negligence would be liable for the accident. If a person’s
\nnegligent act or omission was the proximate and immediate cause of
\ndeath, the fact that the person suffering injury was himself
\nnegligent and also contributed to the accident or other circumstances
\nby which the injury was caused would not afford a defence to the
\nother. Contributory negligence is applicable solely to the conduct of
\na plaintiff. It means that there has been an act or omission on the
\npart of the plaintiff which has materially contributed to the damage,
\nthe act or omission being of such a nature that it may properly be
\ndescribed as negligence, although negligence is not given its usual
\nmeaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is
\nnow well settled that in the case of contributory negligence, Courts
\nhave power to apportion the loss between the parties as seems just
\nand equitable. Apportionment in that context means that damages are
\nreduced to such an extent as the Court thinks just and equitable
\nhaving regard to the claim shared in the responsibility for the
\ndamage. But in a case where there has been no contributory negligence
\non the part of the victim, the question of apportionment does not
\narise. Where a person is injured without any negligence on his part
\nbut as a result of combined effect of the negligence of two other
\npersons, it is not a case of contributory negligence in that sense.
\nIt is a case of what has been styled by Pollock as injury by
\ncomposite negligence. (See Pollock on Torts, 15th Edn. P. 361).\n<\/p>\n
7.\tAt this
\njuncture, it is necessary to refer to the ‘doctrine of last
\nopportunity’. The said doctrine is said to have emanated from the
\nprinciple enunciated in Devies v. Mann (1842 (10) MandW 546) which
\nhas often been explained as amounting to a rule that when both
\nparties are careless the party which has the last opportunity of
\navoiding the results of the other’s carelessness is alone liable.
\nHowever, according to Lord Denning it is not a principle of law, but
\ntest of causation. (See Davies v. Swan Motor Co. (Swansea) Ltd. (1949
\n(2) KB 291). Though in some decisions, the doctrine has been applied
\nby Courts, after the decisions of the House of Lords in The Volute
\n(1922 (1) AC 129) and Swadling v. Cooper (1931 AC 1), it is no longer
\nto be applied. The sample test is what was the cause or what were the
\ncause of the damage. The act or omission amounting to want of
\nordinary care or in defiance of duty or obligation on the part of the
\ncomplaining party which conjointly with the other party’s negligence
\nwas the proximate cause of the accident renders it one to be the
\nresult of contributory negligence.”\n<\/p>\n
We find that both the driver of the truck as well as the claimant –
\nbeing the driver of the car are composite negligent.  Considering
\nthe evidence on record and taking into consideration the size of the
\nvehicles involved, we find that negligence of the claimant in the
\ninstant case can reasonably be fixed at 25%.\n<\/p>\n
Cumulatively
\n\ttaking into consideration the evidence led by the claimant in the
\n\tphotographs (Exh.137 and Exh.138) as well as keeping in mind the
\n\tfact that the claimant is a qualified surgeon, we find that the
\n\tcontention raised by the appellants that the Tribunal has not
\n\tappreciated the correct income of the claimant and has misread the
\n\tdocumentary evidence (Exh.39 and Exh.40) is not believable. The
\n\tclaimant has been able to show the income, which is derived from his
\n\tprofession as surgeon as well as his clinic. We, therefore, find
\n\tthat the gross income, which is reflected in the income-tax returns
\n\t(Exh.39 and Exh.40) is to be taken into consideration while
\n\tdetermining the income of the claimant. On appreciating the
\n\tdepositions of doctors Exh.76, Exh.82 and  Exh.90, we also find that
\n\t because of the impact of the accident the claimant has acquired
\n\tprofessional disability and such disability precludes him from
\n\tperforming major operations which, as per the evidence, he used to
\n\tundertake during his course of profession before the date of
\n\taccident. At this juncture, it would be advantageous to refer to the
\n\tjudgment of the Apex Court in the case of  Yadavakumar Vs.
\n\tDivisional Manager, National Insurance Company Limited & Ors.,
\n\t(2010) 10 SCC 341 wherein the Apex Court has, while determining the
\n\tquantum of compensation has observed thus:\n<\/p>\n
“17.\tThe High Court and
\nthe Tribunal must realize that there is a distinction between
\ncompensation and damages. The expression compensation may include a
\nclaim for damages but compensation is more comprehensive. Normally
\ndamages are given for an inquiry which is suffered, whereas
\ncompensation stands on a slightly higher footing. It is given for the
\natonement of injury caused and the intention behind grant of
\ncompensation is to put back the injured party as far as possible in
\nthe same position, as if the injury has not taken place, by way of
\ngrant of pecuniary relief. Thus, in the matter of computation of
\ncompensation, the approach will be slightly more broad based than
\nwhat is done in the matter of assessment of damages. At the same time
\nit is true that there cannot be any rigid or mathematical precision
\nin the matter of determination of compensation.”\n<\/p>\n
Keeping in mind the principles of perspective income and taking into
\nconsideration the age of the claimant at the time of accident it can
\nsafely be assessed that the income of the claimant to be Rs.12,000\/-
\np.m. Considering 50% as permanent disability to the claimant the loss
\nto the claimant per month, due to permanent disability would come to
\nRs.6,000\/- and the yearly it would come to Rs.72,000\/-. Taking into
\nconsideration the age of the claimant, being 49 years on the date of
\naccident, while calculating the future loss of income, multiplier 13
\nis to be applied and, therefore, the future loss to the claimant due
\nto permanent disability would come to Rs.9,36,000\/- as against the
\nsame the Tribunal has committed error in awarding Rs.12,48,000\/-.\n<\/p>\n
We
\n\tfind that the compensation awarded under the other heads do not
\n\trequire any elucidation in this judgment
\n\tas the same are not disputed by the appellants.\n<\/p>\n
We
\n\tfind that the the Tribunal has awarded interest @ 12% as per the
\n\tprevailing bank rate than, and the same requires to be maintained.\n<\/p>\n
In
\n\tview of the foregoing, the claimant would be entitled to
\n\tcompensation of Rs.11,80,684\/- and by deducting 25% towards
\n\tcontributory negligence on the part of the claimant, the claimant
\n\twould be entitled to net compensation of Rs.8,85,513\/- along with
\n\tinterest @ 12% p.a. from the date of the application.\n<\/p>\n
The
\n\tappeal is partly allowed. Award stands modified accordingly. There
\n\tshall be no order as to costs.\n<\/p>\n
Record
\n\tand proceedings be sent to the Tribunal forthwith.\n<\/p>\n
Sd\/-\n<\/p>\n
[JAYANT PATEL,J]<\/p>\n
Sd\/-\n<\/p>\n
[ R.M.CHHAYA, J]<\/p>\n
***<\/p>\n
Bhavesh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ramchandra vs Arvindkumar on 30 September, 2011 Author: Jayant Patel, R.M.Chhaya, Gujarat High Court Case Information System Print FA\/1723\/1997 28\/ 28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No.1723 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL Sd\/- HONOURABLE MR.JUSTICE R.M.CHHAYA Sd\/- ===================================================== 1 Whether Reporters […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-65612","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRamchandra vs Arvindkumar on 30 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramchandra-vs-arvindkumar-on-30-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramchandra vs Arvindkumar on 30 September, 2011 - 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