NEUTRAL CITATION
C/FA/5360/2008 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5360 of 2008
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CHIEF DISTRICT MEDICAL OFFICERCIVIL SURGEON & 1 other(s)
Versus
BHIKHABHAI RAMABHAI MAKWANA SINCE DECD. THROUGH HEIRS & 1
other(s)
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Appearance:
MR JAYNEEL PARIKH, AGP for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR JM BAROT(143) for the Defendant(s) No. 1.1,1.2,1.3,1.4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 25/08/2023
ORAL ORDER
1. This appeal is filed under Section 173 of the Motor Vehicle Act, 1988 by the owner of the vehicle and driver, assailing the judgment and award date 02.07.2008 in MACP No.893 of 2007, passed by MACT (Aux.), Court no.4, Mehsana.
2. Deceased Bhikhabhai Makwana was serving with Civil Hospital, Patan as Ward Attendant. On 12.10.2007, he was travelling in Ambulance being No.GJ-24-G-9001, owned by the Chief District Medical Officer, Civil Surgeon, Health Department, State of Gujarat and was coming from Ahmedabad to Patan. The said vehicle met with an accident as due to sudden passing of stray animal, the Page 1 of 5 Downloaded on : Sun Sep 17 02:31:53 IST 2023 NEUTRAL CITATION C/FA/5360/2008 ORDER DATED: 25/08/2023 undefined vehicle dashed with the tree besides the road, as a result, the deceased sustained fatal injuries. The legal heirs of the deceased filed a claim petition against the owner, driver and New India Insurance Company with whom the vehicle was insured. The claim Tribunal vide its judgment and award dated 02.07.2008 granted compensation Rs.8,98,387/- holding the liability of driver and owner jointly and severally. So far as Insurance Company is concerned, the Tribunal has exonerated from its liability as risk of the passenger of the ambulance was not covered.
3. Being dissatisfied with the exhortation of he insurance company and amount of compensation, the owner of the vehicle has filed present appeal.
4. This Court has heard Mr.Jayneel Parikh, learned AGP appearing for and on behalf of the appellant and Mr.H.G. Majmudar, learned advocate for the insurance company.
5. Mr.Parikh, has submitted that the judgment and award passed is against the evidence on record and dehors to the legal provisions of the Motor Vehicle Act. That the findings exonerating the insurance company is arbitrary and Page 2 of 5 Downloaded on : Sun Sep 17 02:31:53 IST 2023 NEUTRAL CITATION C/FA/5360/2008 ORDER DATED: 25/08/2023 undefined perverse as under Sections 147 and 149 of the Motor Vehicle Act, the insurance company is statutorily and contractually is liable to indemnify the amount of award for and on behalf of the owner of the vehicle. That the amount award is little bit on higher side.
6. On the other hand, learned counsel Mr.Majmudar appearing for and on behalf of the insurance company has submitted that the Tribunal has not committed any error while interpreting the terms and conditions of the policy and therefore, when the risk of the deceased is not covered by paying premium or otherwise, the insurance company cannot be held liable and in this case, the Tribunal has rightly exonerated the insurance company.
7. Having heard learned counsels for the respective parties, the point that arises for my consideration is whether Tribunal is justified in exonerating the insurance company from its liability and amount awarded is just and proper or not ?
8. The appellant being a State has raised the contentions that despite the coverage of the insurance the Tribunal Page 3 of 5 Downloaded on : Sun Sep 17 02:31:53 IST 2023 NEUTRAL CITATION C/FA/5360/2008 ORDER DATED: 25/08/2023 undefined exonerated the insurance company and the same is against the statutory provisions of the Motor Vehicle Act. On reading of the insurance policy and terms and conditions, it is not in dispute that the risk of the deceased i.e. person travelling in ambulance was not covered as no extra premium covering the risk of the passenger was paid or charged. The deceased travelling in the vehicle cannot be said to be a third party. Thus, therefore, the Tribunal in its award after considering the contractual liability as well as statutory liability has rightly exonerated the insurance company and findings thereof, are in consonance with the evidence on record and the same is not required to be interfered with.
9. The other issue raises the amount awarded is on higher side. The claim was filed by the widow and three sons of the deceased. The Tribunal while assessing the income of the deceased had taken into consideration salary and other particulars of the deceased as the relevant time, he was permanent employee of the State Government. Considering the age of the deceased, multiplier of 12 was being considered and after 1/3 towards the personal expenses of Page 4 of 5 Downloaded on : Sun Sep 17 02:31:53 IST 2023 NEUTRAL CITATION C/FA/5360/2008 ORDER DATED: 25/08/2023 undefined the deceased, the dependency was calculated Rs.65,400/- per annum and under the head of loss of consortium Rs.40,000/- was being considered. Thus, the total amount of compensation was awarded Rs.8,98,387/- with interest at the rate of 7.5%.
10. In the aforesaid, this Court is of the considered view that the Tribunal has not committed error either on factual aspect or in calculating the amount of dependency loss. Thus, on the issue of quantum, the award is just, proper and reasonable and does not require any interference.
11. Resultently, the appeal fails and is hereby dismissed.
Decree be drawn accordingly. The Tribunal shall disburse 100% amount as per the order, if amount is still lying in FDR.
(ILESH J. VORA,J) Rakesh Page 5 of 5 Downloaded on : Sun Sep 17 02:31:53 IST 2023