Rupasangji Ravaji Thakor vs Thakor Kapurji Mohanji & Ors

Hasmukh D. Suthar, J

1) Feeling aggrieved and dissatisfied with the judgment and award dated 31.01.2022 passed by learned Motor Accident Claims Tribunal (Auxi.), Mahesana at Visnagar (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.44 of 2013, the appellant – original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).

2) Heard Mr. Yogendra Thakore, learned Advocate for the appellant – original Claimant and Mr. A. R. Dave, learned Advocate for the respondent no.3 – Insurance Company. The respondent nos.1 and 2 were duly served but did not appear before this Court. Perused the original record and proceedings.

3) It is the case of the appellant – original claimant that on 07.03.2013, when the applicant was travelling on his motorcycle bearing Reg. No.GJ-02-BG-5118 as a pillion rider and which was driven by one Chelaji Bhaikhaji Thakor in a moderate speed at that time one Tractor bearing Reg. No.Gj-08-A-4748, came in full speed in rash and negligent manner and dashed on the rear side of his motorcycle and thereby the applicant fell down from the motorcycle and sustained grievous injuries. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record the learned Tribunal has partly allowed the claim petition.

4) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error by not assessing the income as per the minimum wages and also erred in not considering future prospect. He has further submitted that the learned Tribunal has committed error in considering the contributory negligence and sliced down the compensation. He has further submitted that the learned Tribunal has erred in awarding meagre amount towards pain, shock and suffering, artificial limb though amputation was done. Hence, he has requested to allow the present appeal.

5) Learned Advocate for the respondent no.3 – Insurance Company has opposed the present appeal on the ground that the learned Tribunal has properly assessed the income of the appellant in absence of any proof of income and the I-Card of Homeguard is valid upto 20.12.2008 only whereas the accident took place in the year 2013. He has further submitted that the learned Tribunal has properly appreciated the evidence and held that there was negligence on the part of motorcyclist also and while overtaking the Tractor the motorcycle was dashed with the bumper of the Tractor and sustained grievous injury and the alleged incident took place. Merely the claimant was a pillion rider is not a ground to consider contributory negligence. The compensation is sliced down on the ground that he is the owner of the motorcycle and the learned Tribunal has properly apportioned 20% negligent of motorcycle and 80% of Tractor. He has further submitted that the learned Tribunal has considered 60% disablement on the basis of consent of the parties. Therefore, question does not arise to enhance the compensation and requested to dismiss the present appeal.

6) Having heard the learned Advocates for the respective parties and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence. The claimant has tendered the affidavit wherein all the facts of the accident have been narrated in the chief-examination at Exhibit 20 and supported the claim petition and relied on the FIR at Exhibit 23, panchnama at Exhibit 24, Injury Certificate at Exhibits 26 and 49, Disability Certificate at Exhibit 50 and charge-sheet at Exhibit 55.

7) So far the issue of negligence is concerned, the learned Tribunal has appreciated the evidence as per which the claimant was a pillion rider on motorcycle bearing Reg. No.GJ-02-BG-5118, and also the owner of the said motorcycle and has not joined rider of the motorcycle as a party. The learned Tribunal has taken into consideration that while overtaking the tractor, the rear side of motorcycle was dashed with the front side of tractor and relied on panchnama at Exhibit 25. The respondent no.1 driver of the tractor neither filed written statement nor cross-examined the claimant before the learned Tribunal and not led any evidence and not denied his negligence but the learned Tribunal come to the conclusion that for the claimant this is the case of composite negligent and motorcyclist was negligent and held 20% negligent. If we peruse the record and proceeding, wherein, the claimant has tendered his evidence at Exhibit 20, wherein, he has stated that the tractor dashed with the motorcycle from back side. In the cross-examination he has also admitted the fact that his nephew Chelabhai was riding the motorcycle and he was a pillion rider but he has denied that the alleged incident took place due to negligence on the part of his nephew. The respondent no.3 has nowhere challenged the factum of accident. Except these no evidence is produced on record. The learned Tribunal has relied on the version of one Chelaji who is not examined but stated in the complaint at Exhibit 23, wherein, also nowhere stated that at the time of overtaking the tractor, the motorcycle was dashed with the tractor. There is consistent pleading right from the claim petition to evidence that he was riding the motorcycle and while he was going to overtake the tractor at that time the tractor dashed with the motorcycle from the backside and now it is clearly reveals from the said version that the motorcycle was dashed with the tractor and there was negligence on the part of motorcyclist. In absence of any evidence produced before the Tribunal merely based on preponderance of probabilities the contributory negligence cannot be presumed. The negligence is required to be proved on the basis of preponderance of probabilities as standard. In absence of any kind of evidence the learned Tribunal has on its own considered 20% negligence on the part of motorcyclist which is required to be overturned. In this regard reference is required to be drawn in the case of Shrikrishna Kanta Singh Vs. The Oriental Insurance Company Ltd., and Ors., Neutral Citation – 2025 INSC 394. Hence, reasons assigned by the learned Tribunal is not accepted and perverse findings qua evidence on record. Therefore, up to that extent the learned Tribunal has committed error in considering 20% negligence of the motorcyclist which is required to be quashed and set aside and interference is required to modify the impugned judgment to the extent that the respondent no.1 - driver of Tractor is held sole negligent for the occurrence of the accident.

8) Now coming to the quantum part, as per the law laid down by the Hon’ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record then Tribunal has to consider prevailing rate of minimum wages in absence of evidence of monthly income of the claimant. In the present case the accident occurred on 07.03.2013 and during that time the appellant – injured was working as Homeguard and earning Rs.6,120/- and also doing cattle feeding work and earning Rs.5,000/- in total was earning Rs.11,120/- per month, whereas, the Tribunal has assessed the income of the appellant only Rs.4,000/- per month, however, as per the rate of minimum wages of the prevalent time of skilled person is Rs.5,180/- and therefore, the income assessed by the learned Tribunal is required to be enhanced and the same is reassessed as Rs.5,200/- per month. It appears that the learned Tribunal has observed the age of appellant as 34 years at the time of accident and the learned Tribunal has committed error in not considering future prospect, however, this Court is of the view that 40% addition towards future prospectus is required to be awarded. Moreover, the parties have agreed to consider 60% disablement body as a whole before the learned Tribunal, therefore, once the parties have voluntarily agreed to consider 60% disablement the learned Tribunal has not committed any error in considering 60% disability of the injured.

9) Further, considering the age of claimant as 34 years at the time of accident the Tribunal has considered multiplier of 16 which as per the judgment of the Apex Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] and National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700, is just and proper and no interference of this Court is required. Further, the Tribunal has awarded Rs.51,059/- towards Medical and transportation expenses which is just and proper.

10) Therefore, recalculating the income of the claimant as Rs.5,200/-and future prospect of 40% = Rs.2,080/- which comes to Rs.7,280/-. Now total income towards future loss of income is required to be considered as Rs.7,280/- x 12 x 16 x 60%/ 100 = Rs.8,38,656/-. Therefore, the appellant is entitled to get additional amount of Rs.3,77,856/- towards future loss of income. Similarly, considering the nature of injuries and amputation, period of treatment and recovery, younger age and disablement of the claimant, this Court is of the view that the learned Tribunal has committed error while considering pain, shock and suffering as only Rs.50,000/- which is required to be enhanced to Rs.1,50,000/- i.e. additional amount of Rs.1,00,000/- towards pain, shock and suffering, in view of the ratio laid down in the cases of K.S.Murlidhara Vs. R. Subbulakshmi, reported in 2024 SCC Online SC 3385 and Reshma Vs. Dajiba Krishna Lad and Anr., reported in 2025 INSC 1320.

The Tribunal has also erred in awarding only Rs.50,000/-towards special diet and attendant charges which is also required to be enhanced to Rs.2,00,000/- i.e. additional amount of Rs.1,50,000/- in view of Reshma (supra).

Further, the learned Tribunal has committed error in not awarded any compensation towards actual loss of income and artificial limb and this Court is of the view that actual loss for three months is required to be awarded and hence Rs.15,600/-towards actual loss of income and Rs.1,50,000/- for artificial limb are awarded to the appellant.

11) As discussed above, the appellant – injured – original claimant is entitled to get compensation computed as under:

Heads

Awarded by Tribunal

Reassessed by this Court

Future loss of income

Rs.4,60,800/-

Rs.8,38,656/-

including additional amount of Rs.3,77,856/-

Medical and Transportation

Expenses

Rs.51,059/-

Rs.51,059/-

Pain, shock and suffering

Rs.50,000/-

Rs.1,50,000/-

including additional amount of Rs.1,00,000/-

Special diet and attendant charges

Rs.50,000/-

Rs.2,00,000/-

including additional amount of Rs.1,50,000/-

Actual loss of income

NIL

Rs.15,600/-

including additional amount of Rs.15,600/-

Artificial limb

NIL

Rs.1,50,000/-

including additional amount of Rs.1,50,000/-

Total compensation

Rs.6,11,859/-

Rs.14,05,315/-

including total additional amount of Rs.7,93,456/-

Total awarded amount of compensation

Rs.4,89,487/-

(After deducting 20% self negligence of the appellant)

NIL

(as this Court has considered 100% negligence of the driver of offending Tractor)

Final amount of compensation

Rs.14,05,315/-

12) The Hon’ble Supreme Court in case of Nagappa Vs Gurudayal Singh and others, reported in (2003) 2 Supreme Court Cases 274, has observed that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and in an appropriate case, where from the evidence brought on record if the Tribunal / Court considers that the claimant is entitled to get more compensation than claimed, the amount of compensation more than the claimed amount can be awarded.

13) In view of above, as the Tribunal has awarded total compensation of Rs.4,89,487/- (after deducting 20% negligence), however, as discussed above the appellant is entitled to get additional amount of Rs.9,15,828/- (Rs.14,05,315/- - Rs.4,89,487/-) with proportionate costs and interest as awarded by the learned Tribunal.

14) Hence, present appeal is partly allowed. The judgment and award dated 31.01.2022 passed by learned Motor Accident Claims Tribunal (Aux.), Mahesana at Visnagar, in MAC Petition No.44 of 2013 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The respondent no.3 – Insurance Company shall deposit the said additional amount of Rs.9,15,828/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.

15) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.

16) Interim application, if any, also stands disposed of.

17) Award to be drawn accordingly.