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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 93 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA ==========================================================
| 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 or any order made thereunder ? | No |
BATUKPARI KASTURPARI ATHITH Versus SHANKARBHAI MAKHABHAI (ADIKHASI) & 3 other(s)
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Appearance:
MR HEMAL N.SHAH, ADVOCATE FOR MR. HARSHAD K PATEL(2844) for the Appellant(s) No. 1 MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,4 RULE UNSERVED for the Defendant(s) No. 2 ==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA Date : 07/12/2022
['HARSHAD K PATEL', 'RULE SERVED', 'RULE UNSERVED', 'RATHIN P RAVAL']
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the judgement and award dated 11th April, 2008 passed in MACP No. 388 of 1998 by the learned Motor Accident Claim Tribunal (Aux.), F.T.C No.9, Morbi, the appellant-original claimant has preferred this appeal under Section 173 of Motor Vehicle Act.
2. The original claim of the claimant was of Rs.3,00,000/-
However, the Tribunal has awarded sum of Rs.67,688/- as under:-
| Sr. No. Amount | Under the Head of | |
| 1. | Rs.41,688/- | Future Loss of Income |
| 2. | Rs.10,000/- | Pain, shock and suffering |
| 3. | Rs.10,000/- | Medical Expenditure |
| 4. | Rs. 6,000/- | Attendants, special diet and transportation. |
| Total | Rs.67,688/- | Compensation |
3. It is case of the claimant that on 12.8.1998, the claimant was traveling in Matador bearing registration No.GJ-12-P-1468. Near village Makansar, one tractor trailer bearing registration No.GJ-7- A-8774 and Trolley No.GJ-10-U-1769 was stationary on the road without any sign or signal in the night hours. Thus, driver of the Matador bearing registration No. GJ-12-P-1468 could not see the stationary vehicle tractor trolley and dashed with the same. Pursuant to the aforesaid accident, the claimant has received serious injuries and thereby, he approached the learned Tribunal by way of an application under Section 166 of the Motor Vehicle Act seeking inter alia compensation.
4. Learned Tribunal, having considered the evidence on record, held the driver of the Matador and the tractor tailor has equally responsible for the accident in question. Learned Tribunal thereafter, proceeded to award compensation by holding the monthly income of the claimant atRs.4,632/-. Learned Tribunal thereafter assessed the permanent disability of the appellant @ 15% in respect of body as a whole. Considering the age of the claimant, multiplier of 5 came to be awarded by the learned Tribunal. Thus, sum of Rs.41,688/- came to be awarded under the head of Future loss of income. Thereafter, learned tribunal has awarded Rs.10,000/- under the head of pain, shock and suffering and Rs.10,000.- under the head of Medical Expenditure and Rs.6,000/- under the head of Attendants, Special Diet and Transportation, in all sum of Rs.67,688/- came to be awarded by way of compensation. The Tribunal, thereafter, having held the driver of both the vehicles equally responsible for the said accident, bifurcated the claim amount and held appellant entitled to recover Rs.33,844/- from the respondent No.1 and 3 joint and vicariously and also entitle to recover Rs.33,844/- from the respondent No.4.
5. Being aggrieved and dissatisfied the aforesaid, the claimant has approached this Court by way of this Appeal.
6. I have heard Mr. Hemal Shah, learned advocate appearing for Mr. H.K.Patel, learned advocate for the appellant and Mr. Rathin Raval,learned advocate for the respondent No.3-Insurance Company. 7. At the outset, Mr. Shah, learned advocate for the appellant has made limited submission so far as apportionment of claim amount. According to Mr. Shah, the Tribunal could not have apportion and bifurcate the claim amount in case of composite negligency. To substantiate the contention Mr. Raval, learned advocate for the respondent No.3-Insurance Company has heavily relied upon the law laid down by the Hon’ble Apex Court in case of Khenyel Vs. New India Assurance Company Ltd. and others reported in (2015) 9 SCC 273.
8. By making the above submissions Mr. Shah, learned advocate for the appellant has prayed this Court to allow the present appeal .
9 Per contra Mr. Rathin Raval, learned advocate for the respondent No.3 -Insurance Company could not dispute the ratio laid down by the Hon’ble Apex Court in case of Khenyel (Supra) and thereby requested this Court to pass an appropriate order in the interest of justice.
10. Considering the aforesaid submissions, the only question that arises to consider this Court whether in case of composite negligence, apportionment of compensation between two tortfeasors is permissible
