SAMUBEN CHOTHABHAI Vs. VAJIBHAI JADAVBHAI MER

JUDGEMENT

(1.) The present First Appeal is filed under Sec. 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dtd. 27/4/2010 passed by the Motor Accident Claims Tribunal (Aux.), Amreli, in Motor Accident Claim Petition No.328 of 2005, by which, the claim petition of the claimant is partly allowed by the Tribunal, directing the opponents i.e. owner of rickshaw, owner of indica car and insurance company of indica car to pay the compensation of Rs.1,15,460.00 with 7.5% interest per annum, to the claimant, jointly and severally, whereas the insurance company of rickshaw has been exonerated.

(2.) Brief facts of the present case are that, on 20/6/2005 at about 16:30 hours, the claimant was travelling in rickshaw bearing registration No.GJ-04-T-6329, along with other passengers, and was going from village : Derdi to village : Kariyana of Babra Taluka. When the said rickashw reached in between village : Galkotdi to Babra near by turning situated nearby water tank, at that time, one Indica car bearing registration No.MH-12-0898 came from the opposite direction in rash and negligent manner and in excessive speed and dashed with the rickshaw. As a result, the claimant sustained serious bodily injuries. FIR came to be lodged against the driver of the Indica car being C.R.- I No.59 of 2005 before the Babra Police Station. Since the claimant has received serious injuries and taken medical treatment for long time, the claimant has preferred a claim petition before the Tribunal. Notices were served to the opponents i.e. owner and insurance company of the rickshaw as well as owner and insurance company of the Indica car. The insurance company of the rickshaw and Indica car, both have filed the written statements before the Tribunal and have denied the contentions and negligence. Various evidence, oral as well as documentary, were led before the Tribunal. After hearing the submissions made by the learned advocates for the respective parties, the Tribunal has partly allowed the claim petition as noted above and held liable opponents No.1, 3 and 4 for the compensation, jointly and severally. Opponent No.2 - insurance company of the rickshaw has been exonerated by the Tribunal. Being aggrieved and dissatisfied with the said order, the present appeal is preferred by the claimant for enhancement of compensation.

(3.) Learned advocate Mr. Hiren Modi for the appellant - claimant has submitted that the Tribunal has erred in apportioning the liability of 70% and 30% and directed the opponents to pay the amount accordingly as the claimant is a third party to the opponents, more particularly offending vehicles rickshaw and indica car. He has submitted that while issuing direction in operative part of the impugned judgment, the Tribunal has considered that the rickshaw and Indica car have accepted the negligence of 70% and 30%, respectively and accordingly, the reference is made to pay the amount for the claim of Rs.1,15,460.00 by holding opponents No.1, 3 and 4 liable, jointly and severally and in the same paragraph in later part, it was indicated that subject to negligence assessed on the part of the driver of the goods rickshaw as well as indica car. He has submitted that this is a case of composite negligence and in view of the decision of Hon 'ble Apex Court in the case of Khenyei versus New Indian Assurance Co. Ltd., reported in (2015) 9 SCC 273, the Tribunal cannot apportion the amount of compensation to be recovered from the particular opponent(s), the claimant can recover from all the tort-feasors and/or either one of them. Therefore, he has submitted that the Tribunal has committed an error that though the Tribunal has initially found that opponents No.1, 3 and 4 are jointly and severally liable, but in the later part of its direction/observation, the Tribunal has created confusion by observing that 'subject to negligence 70%-30% '. Therefore, he has submitted that the impugned judgment and award be quashed and set aside by clarifying that aspect. He has submitted on the aspect that the Tribunal has not properly considered the income of the claimant. He has submitted that the deposition of the claimant - Ramuben Chhotabhai Bharwad has been recorded at Exh.28. As per her deposition, at the time of occurrence of accident, she was aged about 50 years. Further, she has deposed that prior to the accident, she was healthy and her husband was having 15 bigha agriculture land and she was also doing agriculture work and she was earning Rs.3,60,000.00 per annum. She has also deposed that due to occurrence of the vehicular accident, she has sustained fractured in right hand wrist portion as well as left humerus and iron plat has been inserted in her both the arms portion and therefore, she has submitted that she has spent Rs.75,728.00 towards medical treatment and as per the bills. She has also remained bed ridden for six months. Mr. Modi, learned advocate for the claimant has relied on the MLC certificate issued by the Community Health Centre, Babra at Exh.60 and MLC Certificate issued by the Government Hospital, Rajkot at Exh.58 as well as disability certificate at Exh.54, whereby the medical bills of Rs.58,844.00 are available on record, but actually, expenses of Rs.75,728.00 has been occurred for the same. Therefore, he has submitted that the Tribunal has erred in not considering that aspect. He has submitted that as per the claim petition, the income of the claimant should be assessed Rs.1,800.00 p.m. Therefore, even if we consider the present claimant as housewife, then also in view of the decision of Hon 'ble Apex Court in the case of Kirti versus Oriental Insurance Co. Ltd., reported in (2021) 2 SCC 166, minimum wage should be considered for the income of the housewife and accordingly, he has submitted that the appropriate enhancement is required to be made in the impugned award by the Tribunal.