IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 590 of 2013 ==========================================================

JAGRUTIBEN UDAYKUMAR SONI & ORS.

Versus SUNIL MARU & ORS.

==========================================================

Appearance:

MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,2,3 UNSERVED EXPIRED (N) for the Appellant(s) No. 4 MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4 MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 14/02/2025

ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant – original claimant being aggrieved and dissatisfied with the judgment and award dated 15.07.2011 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claim Petition No.4830 of

2002.

2. Brief facts of the case are as under:

2.1 On 24.02.2002, when deceased Udaykumar Soni and other persons were travelling in Maruti Car No.GJ-2-K-5048 from Mehsana to Patan, the said car dashed with Truck No.RJ-27-G- 3227 which was stationary / parked in the middle of the road during night hours. As a result, deceased received serious injuries and died on the spot. Therefore, claimant filed claim petition seeking compensation.

3. The appeal is challenging judgment and award passed in MACP No.4830 of 2002, whereby, learned Tribunal in group of matters, while holding deceased - Udaykumar driver of Maruti car negligent upto 50% granted total compensation of Rs.6,40,320/- along with 7.5% interest p.a. from the date of petition till realization and deducted amount equal to negligence of the deceased and passed award.

4. Legal representatives of deceased have challenged the said award on two grounds, firstly, learned Tribunal has taken up income of deceased on lower side; did not grant loss of future prospects; deduction of personal expenses is on higher side, it should be 1/4th instead of 1/3rd and loss of consortium should be granted to each claimant at Rs.48,400/-, loss of estate and funeral expenses is also required to be granted in view of judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. v/s. Pranay Sethi [2017 (16) SCC 680].

4.1. Second ground urged in the appeal is deceased was not equally negligent in causing road accident. It is argued by learned advocate Mr.Mehul Sharad Shah for the appellants / claimants that accident took place on the curve of road on the outskirts of Mehsana Chansma Highway. Driver of car was about to cross the curve of the road at that time it dashed with truck which was stationary from behind at 9.30 night. He would submit that though deceased Udaykumar cannot be fasten liability in causing road accident, but assessing 50% contributory negligence is on high side. He would submit to reduce the percentage of contributory negligence of the deceased.

It is further submitted that driver of stationary truck did not enter into witness box to explain that why truck was kept stationary that too on the curve of the road without parking lights or blinkers. It is submitted that learned Tribunal was required to take adverse inference but learned Tribunal held truck driver and deceased equally negligent in causing road accident.

4.2. Upon above submissions, it is submitted to allow the appeal.

5. Learned advocate Mr.Rathin Raval for respondent no.2 - United India Insurance Company Ltd. - insurer of Truck submitted that in group of mattes, common judgment has been passed by the learned Tribunal assessing equal negligent of drivers in causing road. The said judgment is not challenged either by claimants or by insurance company, in this circumstances, finding of learned Tribunal qua contributory negligence of deceased in causing road accident has attained finality and cannot be disturbed in appeal filed by present appellants / claimants who are legal heirs of deceased - driver o