New India Assurance Co Ltd, ... vs Smitaben Josephbhai Parmar

     C/FA/4601/2010                                 JUDGMENT DATED: 14/02/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                      R/FIRST APPEAL NO.        4601 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK:    Sd/-
=======================================================

1    Whether Reporters of Local Papers may be                             NO
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                              NO

3    Whether their Lordships wish to see the
     fair copy of the judgment ?                                          NO

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any                                  NO
     order made thereunder ?

=======================================================
               NEW INDIA ASSURANCE CO LTD,
            REGISTERED OFFICE AT 87, MAHATMA
                         Versus
        SMITABEN JOSEPHBHAI PARMAR & 2 other(s)
=======================================================
Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
ADVOCATE NAME DELETED for the Defendant(s) No. 1
MR SURESH B BHATT for the Defendant(s) No. 1.1,1.2
MR.HIREN M MODI for the Defendant(s) No. 2,3
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                             Date : 14/02/2023
                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK) Page 1 of 6 Downloaded on : Mon Feb 20 20:35:15 IST 2023 C/FA/4601/2010 JUDGMENT DATED: 14/02/2023

1. This appeal is filed under Section 173 of the Motor Vehicle Act (hereinafter referred to as "the Act" for short) by the appellant - Insurance Company challenging the impugned judgment and award dated 12.07.2010 passed by the learned Motor Accidents Claims Tribunal (Auxi.), Fast Track Court, Nadiad in MACP No.37/2006, whereby the learned Tribunal partly allowed the claim petition and directed the original respondents to pay an amount of Rs.17,23,000/- to the original claimants at the rate of 9%.

2. The factual matrix of the present case is as under, 2.1 On 26.07.2005, the original claimant, Smitaben Josefbhai Parmar was going on her Scooty bearing Registration No.GJ-23-C-3205, at that time, the driver of the offending vehicle bearing Registration No.GJ-06-X-1636 was coming towards her by driving in a rash and negligent manner endangering the human life and collided with the said scooty, as a result of which, the accident had taken place and the original claimant sustained severe injuries on her head and she was admitted in the hospital. Therefore, Claim Petition was filed before the Tribunal.

2.2 On filing of the claim petition, notice was issued, which was duly served upon the original respondents and, thereafter, they Page 2 of 6 Downloaded on : Mon Feb 20 20:35:15 IST 2023 C/FA/4601/2010 JUDGMENT DATED: 14/02/2023 have appeared before the learned Tribunal. Thereafter, the parties led evidence before the Tribunal.

2.3 After considering the evidence produced before the Tribunal, the Tribunal partly allowed the claim petition and thereby held the original opponent nos.1 to 3 jointly and severely liable to pay compensation to the claimants. The Tribunal awarded Rs.17,23,000/- together with interest at the rate of 9% p.a. from the date of petition till realization of the amount with proportionate cost of the petition.

3. Heard learned advocate, Sunil Parikh for the appellant - Insurance Company, learned Suresh Bhatt for the respondent no.1 and learned advocate, Mr. Hiren Modi for the respondent nos.2 and 3.

4. Learned advocate for the appellants has mainly contended that the appellant - Insurance Company has challenged the impugned judgment and award only on the ground of negliency and quantum part. He submitted that the Tribunal ought to have considered FIR, Exh.62 and panchnama, Exh.95, which suggests about the negligency on the part of the injured. Learned advocate submitted that the ratio enunciated by the Hon'ble Supreme Court in the decisions in the case of Sarla Verma Vs. Delhi Transport Corporation, reported in (2006) 9 SCC 121, as well as in the case of National Insurance Page 3 of 6 Downloaded on : Mon Feb 20 20:35:15 IST 2023 C/FA/4601/2010 JUDGMENT DATED: 14/02/2023 Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680 has not properly considered by the Tribunal while passing impugned judgment and award and thereby the Tribunal has committed an error in passing impugned judgment and order. It is, therefore, urged that this appeal be allowed.

5. On the other hand, learned advocate, Mr. Suresh Patel appearing for the respondent no.1 - original claimants submitted that the Tribunal has not committed any error while awarding the compensation to the original claimants and, hence, it is urged that the present appeal be dismissed.

6. We have considered the submissions canvassed by learned advocates appearing for the parties and I have also perused the material placed on record including FIR at Exh.62 and panchnama at Exh.95.

7. From the facts of the case and material available on record, it is evident that while the injured victim was driving scooty bearing Registration No.GJ-23-C-3205, the driver of Car bearing Registration No.GJ-06-X-1636 came in a very rash and negligence manner and collided with the injured, as a result of which, she sustained injuries and admitted in the hospital and then, she remained in coma till she died in 2012 and considering all these aspects including the income of the deceased, negligency on the part of the driver of the offending vehicle, future aspect etc., the Tribunal has awarded compensation, which is just and proper.

C/FA/4601/2010 JUDGMENT DATED: 14/02/2023

8. We have also considered the decisions upon which reliance has been placed by learned advocate for the appellant in case of Sarla Verma (supra) and Pranay Sethi (supra). Considering the settled legal principle of law as enunciated in the aforesaid decisions, the amount of compensation is to be determined in respect of the injury sustained by the claimant and permanent disablement part. It is recorded in the impugned award that the original claimant remained in coma for at-lest seven years till she died in the year 2012. Thus considering the aforesaid aspect, it cannot be said that the Tribunal has committed any error while awarding amount qua compensation.

9. So far as another contention raised by learned advocate for the appellant with regard to negligency is concerned, it is profitably referred to the judgment dated 25.01.2022 delivered by this Court in First Appeal No.59/2019. It is required to be noted that the appellant - Insurance Company has not examined driver of the offending vehicle in question. It is settled principle of law that unless and until the driver and owner of the offending vehicle come forth and depose before the Tribunal, the issue of negligency cannot be considered and, hence for considering the aspect of negligency, the appellant - Insurance Company ought to have examined the driver of the offending vehicle in question.

C/FA/4601/2010 JUDGMENT DATED: 14/02/2023

10. Over and above that, because of the accident, FIR was registered, which culminated into criminal case and the trial had proceeded further and in the said trial, the driver of the offending vehicle has himself pleaded guilty before the concerned Magistrate and, therefore, the question of negligency is no more res integra. Thus considering the above facts of the case, the present appeal is not having any merits and deserves to be dismissed.

11. In view of the aforesaid observations and discussion, the present First Appeal stands dismissed with no order as to cost. The amount, which is deposited by the Insurance Company, shall be disbursed in favour of the original claimants after due verification through RTGS and/or Account Payee Cheque. Further, the amount, which is lying before the registry of this Court, shall be remitted to the concerned Tribunal forthwith. The original claimant is entitled for the interest accrued on the FDRs. Record & Proceedings are ordered to be sent back to the concerned Tribunal forthwith.

Sd/-

(VIPUL M. PANCHOLI, J.) Sd/-

(HEMANT M. PRACHCHHAK, J.) Gautam Page 6 of 6 Downloaded on : Mon Feb 20 20:35:15 IST 2023