FA/1767/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1767 of 2007 With CIVIL APPLICATION No. 4617 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 to 5 NO ========================================================= S.T. CORPORATION THRO' THE MANAGER - Appellant(s) Versus NANJIBHAI KODARBHAI MODIA & 1 - Defendant(s) ========================================================= Appearance : MRS VASAVDATTA BHATT for Appellant(s) : 1, MR JV JAPEE for Defendant(s) : 1, NOTICE SERVED for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 18/01/2008 ORAL JUDGMENT 1. The appeal under section 173 of the Motor Vehicles Act, 1988 is preferred for challenging the award dated 24.7.2006 of Motor Accident FA/1767/2007 2/4 JUDGMENT Claims Tribunal (Aux.), Sabarkantha in Motor Accident Claim Petition No.1130 of 1996 wherein the respondent-claimant was awarded Rs.1,16,000/- as compensation with interest and cost. The appeal was pressed mainly on the ground that while negligence on the part of the claimant as a pedestrian was fixed at 30%, negligence on the part of the driver of the appellant was assessed to be 70%, even though admittedly the claimant had come on the road from behind another vehicle. It was also submitted by learned counsel Ms.Vasavdatta Bhatt that assessment of compensation was on higher side insofar as monthly income of the applicant was presumed to be Rs.3,000/- and Rs.25,000/- was awarded towards pain, shock and suffering. 2. Learned counsel Mr.Japee supported the impugned award with the argument that the claimant had suffered permanent disablement to the extent of 25% and the entire responsibility to avoid accident lay upon driver of as big a vehicle as bus. He also submitted that the claimant was an agriculturist and also undertaking animal husbandry out of which he could reasonably be presumed to be earning more than Rs.3,000/-. The claimant having undergone four fractures and prolonged treatment, the amount of Rs.25,000/- towards pain, shock and FA/1767/2007 3/4 JUDGMENT suffering was certainly not on the higher side, according to his submission. He also pointed out that the expenses and claim of more than Rs.23,000/- towards attendance and transportation was not accepted, though supported by vouchers and the Tribunal had reduced the amount under that head to Rs.10,000/-. 3. Learned counsel Ms.Bhatt fairly had conceded at the outset that the total amount under the impugned award was already deposited and disbursed even before the appeal being entertained and stay against recovery being imposed. She, therefore, submitted that the amount of Rs.25,000/- deposited for the purpose of entertainment of the appeal was required to be refunded and an order in that regard was sought. 4. Having gone through the impugned award and after hearing the arguments of learned counsel, it appears that the Tribunal has arrived at a just and reasonable amount of compensation particularly in view of the fact that minimum monthly income and minimum admissible amount towards pain, shock and suffering were taken into consideration and the total compensation was reduced by 30% in view of contributory negligence of the original claimant. Therefore, the appeal is summarily dismissed and notice issued in the FA/1767/2007 4/4 JUDGMENT stay application is discharged with no order as to costs and with the direction that Rs.25,000/- deposited by the appellant with this Court shall be refunded to it. Sd/- ( D.H.Waghela, J.) (KMG Thilake)