C/FA/753/2018 JUDGMENT DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 753 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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NATIONAL INSURANCE COMPANY LTD.
Versus
HASMUKHBHAI KADIDAS PATEL & 1 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR JOSHI for MR.HIREN M MODI(3732) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/03/2023
ORAL JUDGMENT
1. The appellant-Insurance Company has challenged the judgment and award dated Page 1 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 30.6.2017 passed by the learned 8th Additional District & Sessions Judge, Abd (Rural) at Mirzapur in MACP no.1148 of 2004.
2. Learned advocate Mr. Palak Thakkar for the appellant submits that the learned Tribunal has failed to observe that the accident occurred between two motorcycles, which had resulted into head on collusion and therefore, negligence of 50% was required to be attributed to both the motorcyclists and thus, states that the insurance Company has challenged the negligence aspect. Mr. Thakkar submits that the learned Tribunal ought to have considered that there would not be any loss of income or actual loss of income since the claimant is a Government servant and in the cross-examination, the claimant had admitted that while serving as a Head Clerk at Sarv Vidhyalaya, Gandhinagar, he had not suffered any loss of Page 2 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 income and during the time when he had stayed for 3 months at home, his income continued and further as per the evidence, there was continuous increase in his salary. Thus, Mr. Thakkar submits that the amount has been wrongly assessed under the head of future loss of income and actual loss of income.
3. Countering the same, Advocate Mr. Joshi submits that the learned Tribunal had failed to observe that the claimant had suffered 72% permanent partial disability and was serving as a Head Clerk and thus, submits that the amount under the head of loss of amenities of life has not been considered by the Tribunal. Mr. Joshi submits that for about 3 months, he could not attend his job and has suffered pain, shock and suffering. He was assisted by the attendants to deal with the day to day work, but the amount has Page 3 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 not been granted under such heads.
4. As per the case of the applicant, on 26.5.2004, he was going on his motorcycle bearing registration no. GJ-18 L-1093 along with his wife to meet his brother who was residing at Vrundavan Park at Odhav. He went to Odhav from Gandhinagar via Naroda Odhav Nikol Road and at about 02.45 p.m. when they reached at public road in front of Sukan Bungalows at Nikol Road, one another motorcycle bearing registration no. GJ-1 DH- 9456 came from the front side in an excessive speed and negligent manner, endangering human life and dashed with the applicant's motorcycle from the front right side, as a result of which, he sustained severe accidental injuries and his wife sustained serious injuries. As per the claimant, he was admitted in Pragna Ortho Hospital as an indoor patient, wherein Page 4 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 operation performed on him on his right legs 2nd, 3rd, 4th and 5th fingers and in right legs thigh, rod was inserted and in his right hand finger beside little finger operation was performed and rod was inserted.
5. Insurance Company has challenged the negligence assessed at 80% of the driver of the motorcycle bearing registration no. GJ-1 DH-9456, while 20% of the claimant himself.
6. The learned Tribunal has, after taking into consideration the Panchnama produced on record, noted that the width of the road was sufficient enough for both the vehicles to pass easily even from the opposite direction. The learned Tribunal has observed that the drivers of both the vehicles have not kept reasonable distance, nor they tried to reduce the speed in order to avoid the road accident, but considering the material Page 5 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 evidence on record, the Tribunal observed that the opponent vehicle could had taken extra care to avoid the accident so that the unfortunate accident could not have taken place.
7. As per the claimant, he was on a public road in front of Sukan bungalow at Nikol Road at about 02.45 p.m.. Thus, the accident which had occurred is in a day light. As per the cross-examination, the accident had occurred on mid road, but it has not come on record that the claimant was on the wrong side of the road. The claimant stated that he was in his normal speed, while the opponent no.1- driver of the offending vehicle has not stepped into witness box to counter the case of the claimant, while no suggestion has been raised in the cross-examination of the claimant that the accident had occurred because of his negligence. Thus, in absence Page 6 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 of any contrary evidence on record, the observation made by the Tribunal of attributing 80% negligence of the driver of motorcycle bearing registration no. GJ-1 DH- 9456 and that of 20% of the claimant requires no interference and this Court considers that such an assessment made by the Tribunal is in accordance with the evidence on record.
8. The claimant is a Head Clerk in Sarv Vidhyalaya, Gandhinagar and he had never suffered any loss in income rather got increment in his salary, but the fact remains that the claimant had suffered 72% disability of lower limb and being a Head Clerk, the disability has affected his capacity to efficiently perform at the work place and further, the disability may also have affected his social and personal life. Page 7 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 Considering the same, this Court considers that an amount of Rs.80,000/- is required to be granted under the head of loss of amenities of life as just and reasonable keeping in view the work of the claimant.
9. As per the claimant, he could not work for about 3 months and had remained at home as he has suffered 72% disability for the lower limb and 36% of the body as a whole. Both the parties had accepted disability of 20%.
10. The Tribunal has granted the compensation as under:-
Future loss of income Rs.2,56,320/- Actual loss of income + Rs.6,673/- Pain, shock and suffering + Rs.25,000/- Medical expenses + Rs.75,000/- Healthy diet, attendant, + Rs.10,000/-
transportation
Total amount = Rs.3,72,993/-
Less 20% negligence of - Rs.74,598/-
applicant
Total compensation = Rs.2,98,395/-
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C/FA/753/2018 JUDGMENT DATED: 15/03/2023
11. The learned Tribunal has committed an error in granting the amount under the head of future loss of income and actual loss of income, where the claimant has not sustained any such loss and has further erred in not granting any amount under the loss of amenities of life.
12. Considering the age of the claimant, under the head of pain, shock and suffering, Rs.25,000/- has been granted and Rs.75,000/- is granted towards medical expenses and under the head of special diet, attendant and transportation charges, Rs.10,000/- is granted, which is just and proper.
13. The computation of the amount would be as under:-
Loss of amenities of life Rs.80,000/- Pain, shock and suffering + Rs.25,000/- Medical expenses + Rs.75,000/- Special diet, attendant and + Rs.10,000/-
transportation
Total amount = Rs.1,90,000/-
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C/FA/753/2018 JUDGMENT DATED: 15/03/2023
14. 20% contributory negligence of the claimant is to be considered and hence, the said amount is required to be deducted Rs.38,000/- is to be deducted from the compensation granted. Hence, the claimant would be entitled to an amount of Rs.1,52,000/- (Rs.1,90,000/- - Rs.38,000/-). The Tribunal has granted Rs.2,98,395/-, which is excess amount and therefore, the claimant would be required to refund Rs.1,46,395/- along with interest at the rate of 9% per annum. The additional amount shall be refunded with interest as provided in this judgment within a period of eight weeks from the date of receipt of the writ of this Court.
15. It is stated that part of the amount is
lying in FDR. Let the amount of
Rs.1,46,395/- with interest at the rate of Page 10 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023 C/FA/753/2018 JUDGMENT DATED: 15/03/2023 9% per annum be deducted from the FDR and rest of the amount lying in the FDR be given back to the claimant upon proper verification.
16. Accordingly, the appeal is partly allowed in the above terms. The impugned judgment and award be modified. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 11 of 11 Downloaded on : Thu Mar 16 20:50:50 IST 2023