Reserved On : -

Pronounced On : 14/10/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 41 of 2015 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J. L. ODEDRA ==========================================================

Approved for Reporting Yes No ==========================================================

LADUBEN NANABHAI BARIYA WD/O NANBHAI BARIYA & ORS.

Versus ARVINDBHAI MATHURBHAI PAGI & ANR.

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Appearance:

MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5 MR. ALKESH N SHAH(3749) for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA CAV JUDGMENT

1. The present Appeal arises from the judgment and award dated 16^th August, 2014 passed by the learned Motor Accident Claims Tribunal (Aux.), Panchmahal at Godhara in respect of the MACP No.713 of 2008.

2. By way of the impugned judgment and award, the Tribunal was pleased to award a compensation to the tune of Rs.1,72,750/- to the claimants with interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realization with proportionate costs.

3. At the outset, the accident in question may be examined.

From the records, the date of the accident transpires to be of 02.05.2006. It appears that one Nanabhai was going from Bharatpur to Ahmedabad in his relative’s Jeep bearing registration no.GJ-9-H-1283. The said Jeep was being driven by one Bhathi bhai. As per the case of the claimants, when the said Jeep was passing by the Village Daraji na Muwada at Kathlal-Ahmedabad Highway Road, a Truck came from the opposite side in rash and negligent manner and collided with a Jeep. As a result, the Jeep turned turtle. The occupant Nanabhai sustained serious injuries and ultimately succumbed to the said injuries. Hence, the claim petition under Section 163A of the Motor Vehicles Act, 1988 (for short, “the MV Act”).

4. At the outset, it was submitted by the learned advocate for the appellant, Mr. Hiren Modi, that the present appellants are aggrieved only qua two aspects of the impugned judgment and award. First aspect is that, that the Tribunal has erred in deducting 50% amount of the compensation, on the assumption that the Jeep’s driver was negligent to the extent of 50%. It was submitted that in the present case, it has not been proved that the deceased was an unauthorized passenger or was traveling in a capacity of fare paying passenger in a private vehicle. He has thus submitted that the Insurance Company, before the Tribunal, has not been able to demonstrate that a private vehicle was being used for commercial purposes. He further submitted that the Tribunal, after attributing negligence in causing accident to the extent of 50% to the drivers of each of the vehicles, has erred in holding that as the driver, the Insurance Company and the owner of the offending vehicle (truck) had not been impleaded, therefore, that part of the compensation, namely, 50% of the compensation is liable to be deducted. It was submitted that insofar as the appellant – third party was concerned, he was passenger in the vehicle and in respect of such passenger, the negligence would be, what is referred to as, “Composite Negligence”, and not in the nature of “Contributory Negligence”, and therefore, no amount should have been deducted from the compensation, as has been done by the Tribunal. It was submitted that Court may please interfere with the impugned judgment and award to the extent of the deduction of 50% amount for the reason of non-impleadment of one part of the tort-feasors namely, the driver, owner and the Insurance Company of the Truck involved in the accident. The learned advocate has relied upon the judgment of the Hon’ble Supreme Court in the case of Khenyei vs New India Assurnace Co.Ltd.& Ors reported at (2015) 9 SCC 273 to support his contention and for explaining the concept of the co