RUSHINA MAHENDRABHAI MODI vs. MEHULBHAI SUBODHCHANDRA SHAH

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 731 of 2003 With R/FIRST APPEAL NO. 732 of 2003 With R/FIRST APPEAL NO. 733 of 2003

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== MAHENDRABHAI GATUBHAI MODI Versus MEHULBHAI SUBODHCHANDRA SHAH & ORS. ========================================================== Appearance: APURVA K JANI(7057) for the Appellant(s) No. 1 for the Defendant(s) No. 3 MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5 MS SONAL D VYAS(999) for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 1,2,4 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI

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C/FA/731/2003 JUDGMENT DATED: 18/03/2024 Date : 18/03/2024

ORAL JUDGMENT 1. The claim petitions have been filed by both husband and wife and daughter as MACP Nos.917 of 1992 to MACP No.919 of 1992, challenging the common judgment and award dated 29.09.2001 passed by Motor Accident Claims Tribunal (Auxi.), Sabarkantha at Himatnagar. MACP No.918 of 1992, was for daughter aged about 19 years at the time of filing the claim petition. 2. Learned advocate Mr. Apurva K.Jani for the appellant submits that the applicant of MACP No.918 of 1992 is now no more. She died on 30.04.2011 and, thus, states that rest of the parents are legal heirs, who are the claimants of MACP Nos.917 of 1992 and 919 of 1992. 2.1 Let the applicants of 917 of 1992 and 919 of 1992 be added as heirs of the deceased applicant, and necessary amendment be made Page 2 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 accordingly. 3. Learned advocate Mr. Vibhuti Nanvati for the United India Assurance Co. Ltd. submitted that the drivers of both the vehicles were not holding the valid and effective licence and stringent cogent evidence were not produced on record to prove the case of the applicants. Mr. Nanavati stated that the Tribunal has assessed both the vehicles equally negligent, however, did not consider that the driver of the Truck was on its correct side and in moderate speed, and the accident occurred because of sole negligency of the Contesa Car. 4. Learned advocate Ms. Sonal D.Vyas for the New India Assurance Co. Ltd. has stated that as far as negligency aspect is concerned the driver of Contesa Car was not negligent in his driving and was on his correct side. 5. The facts of the case suggests that all Page 3 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 three applicants were returning from Udaipur to Ahmedabad in Contesa car as occupants on 23.04.1992, and in early morning at about 4:30 a.m. they met with accident, since opponent no.1 – driver of the Contesa car bearing Registration No.GJ-1-K-4243, was speeding his vehicle in rash and negligent manner, and near bus stand of village Piplodi at Himatnagar, one Truck bearing Registration No.GJ-3-T-553, came from the opposite side, which too was driven in rash and negligent manner and in high speed, and both the vehicles dashed with each other. It was stated that drivers of both the vehicles were negligent in driving, and a criminal complaint was registered. The Tribunal on appreciation of evidence has considered equal negligence of drivers of both the vehicles. This Court considers that appreciation of evidence is upon the evidence on record, the factual aspect is supported by the claimant’s evidence. Page 4 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 6. The claimant of MACP No.917 of 1992, who has raised First Appeal No.731 of 2003 praying for enhancement, was serving in S.M.P.S. Engineering and Consultant Private Ltd., and as per the salary certificate he was receiving Rs.6,605/- per month. The claimant had produced his license to act as a surveyor-loss assessor, and various other documents on the record to consider his future potentiality of earning more, as he had been receiving the offers from various companies. The Tribunal on referring such offers produced at Exh.90 to 92, has noted that there is nothing on record that applicant has accepted those offers. However, considering the salary and the capacity of earning, the Tribunal has assessed his yearly income as Rs.1,30,000/-. 7. Learned advocate Mr. Apurva Jani submitted that the Tribunal was required to consider the prospective rise in income to assess the future loss in income. It is required to be Page 5 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 noted that owing to the accident the claimant- applicant has not lost his job nor there is any loss in his salary, to even consider any future loss of income. 8. The Tribunal has also granted the amount for actual loss of 150 days and having considered the income of Rs.1,30,000/- per annum with the disability of 24% has granted Rs.3,12,000/- under the head of future loss of income. The medical bills of Rs.5,000/- has been assessed, and further

amount

attendance

charges, transportation and special diet has been considered, and in all the Tribunal has granted Rs.3,97,200/-, which this Court considers to be just and reasonable, as the claimant has not suffered any loss of income, as he continued with job and the disability has not made him lose his job; hence that entitlement would be for the loss of amenities and enjoyment of life, which the Tribunal has granted the amount as future loss of Page 6 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 income. 9. There is no substance in the First Appeal No.731 of 2003, hence, the same stands dismissed. 10. In First Appeal Nos732 of 2003 of the deceased daughter, where the father – Mahendrabhai Gatubhai Modi and mother – Smt. Ramilaben Mahendrabhai Modi would be the heirs to receive the compensation. 10.1 The learned Tribunal in MACP No.918 of 1993, by considering the income of Rs.1,200/- for the accident which has taken place on 23.04.1992, on the disability of 21%, has granted the future economic loss considering the age of daughter as 18 with multiplier of 18, and adding the amount of medical bills, treatment, attendance charges and special diet, has granted total amount of Rs.1,38,500/-, which the parents would be entitled to receive the same. Page 7 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 10.2 There is no case made out for any enhancement of the compensation amount, as the amount so considered is just and proper, hence, First Appeal No.732 of 2003 also stands dismissed. 11. First Appeal No.733 of 2003 is against MACP No.919 of 1992, where the claimant lady aged about 40 years was found to be partner in Modi Gatubhai Manibhai & Company, and was a income tax payer. The Tribunal has assessed the income of the claimant as Rs.2,000/- per month assessing the loss with 24% disability, and granted the amount for actual loss of income, medical bills and treatment, transportation, attendance charges and special diet to the total of Rs.1,24,500/-. 12. There is no scope for any enhancement in the present appeal too. Hence, First Appeal No.733 of 2003 stands dismissed. Page 8 of 9

C/FA/731/2003 JUDGMENT DATED: 18/03/2024 13. In the result, the judgment and award dated 29.09.2001 passed by Motor Accident Claims Tribunal (Auxi.), Sabarkantha at Himatnagar in MACP Nos.917 of 1992 to MACP No.919 of 1992 stands confirmed. 13.1 The amount be paid to the concerned claimants, if not paid, at 9% interest rate, which has been granted by the Tribunal. 13.2 The amount, which falls in the share of deceased claimant – Rushina Mahendrabhai Modi be paid in equal proportion to both the parents. Since the liability has been laid down in equal proportion, considering the negligence, hence, both the insurance companies to deposit 50% of the award amount before the Tribunal. (GITA GOPI,J) Pankaj Page 9 of 9