Gujarat High Court
Sbi General Insurance Company Limited vs Vinodsinh Laxmansinh Zala on 23 April, 2025
NEUTRAL CITATION
C/FA/5429/2019 JUDGMENT DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5429 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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SBI GENERAL INSURANCE COMPANY LIMITED
Versus
VINODSINH LAXMANSINH ZALA & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 3,4,5,6,7
NOTICE SERVED for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Vibhuti Nanavati for the appellant and learned advocate Mr. J. M. Barot for respondent Nos.3 to 7. Though served, none appeared for and on behalf of the respondent No.1 while notice could not be served upon respondent No.2. Perused the record.
2. The challenge in the present appeal is by the appellant -
Insurance Company challenging the judgment and award dated 28.6.2019 passed by learned Motor Accident Claims Tribunal (Main), Patan in M.A.C.P. No.139 of 2017. Page 1 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025
NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined
3. The facts in brief of the case are as under:
* On 30.3.2017 at about 8.30 am, deceased Ratilal Raval was going towards Harij road from signboard of village Sodhav by foot on the left side of road to do agriculture work and when he reached near the place of accident, opponent No.1 driver of Truck bearing registration No.GJ-3-W-8591 came in a rash and negligent manner and dashed with the deceased. Resultantly, the deceased sustained serious injuries and succumbed. * Claimants being the legal heirs of the deceased filed claim petition for a compensation of Rs.20,00,000/- from the opponents. Opponents were served with summons. Opponent nos.1 and 2 did not contest the claim petition. Opponent No.3 - insurance company contested the claim petition by filing Written Statement at Exh.17. After framing of issues, claimant No.1 - widow of deceased submitted her deposition at Exh.22 and produced FIR, Panchnama, PM report and other documentary evidence in support of claim petition. Page 2 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025
NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined * After considering the evidence, learned Tribunal partly allowed the claim petition by directing opponents to pay an amount of Rs.13,62,792/- to the claimants with interest @ 9% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award, the appellant - insurance company has filed the present appeal.
4. Learned advocate for the appellant has submitted that learned tribunal has not considered the age of deceased properly. It is submitted that learned tribunal has erred in considering the age of deceased as 45. The claimant in the claim petition as well as in the examination in chief has stated age of deceased as 52 years. The election card which is produced by the claimant indicates the birth year of deceased as 1962 whereas the Aadhaar card of deceased indicates the date of birth as 1.1.1972. The inquest Panchnama which is placed on record at Exh. 25 also indicates age of deceased as 52 years. When there is Page 3 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025 NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined discrepancy of age of deceased, medical evidence is required to be considered.
5. Learned advocate for the appellant has placed reliance upon the following judgment/order of the Coordinate Bench of this Court:
A decision dated 22.11.2021 in First Appeal No.3338 of 2021 in the case of The New India Assurance Co. Ltd. v. Hamirbhai Hajabhai Kamalia,
6. By relying upon the aforesaid decision, it is held that in the case of discrepancy with regard to age of deceased, medical evidence is best evidence which cannot be brushed aside. No other submissions are made, except above submissions.
7. Per contra, learned advocate for the respondent has submitted that the claimants have mentioned the age of deceased as 52 years in the claim petition as well as in the oral examination. The Aadhaar card which has been Page 4 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025 NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined produced by claimant indicates the age of deceased as 45. The learned tribunal has rightly considered the age of deceased as 45 years and, therefore, no interference is required.
8. I have considered the submissions of learned advocates for the respective parties and perused the Record and Proceedings. It appears that only question for consideration is what was the age of deceased on the date of accident. The claimant in the examination in chief which is recorded at Exh.22 has stated in paragraph No.6 that the age of deceased was 52 years. Even, inquest Panchnama which is produced at Exh.25 also supports the say of claimant. When the best medical evidence was available with learned Tribunal, the other evidences such as Aadhaar card or election card is of no relevant. The medical evidence cannot be brushed aside in considering the age of victim.
9. In view of the decision The New India Assurance Co.
Ltd. v. Hamirbhai Hajabhai Kamalia (Supra), it has been held that when the best medical evidence is Page 5 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025 NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined available, learned tribunal ought not to have brushed aside and the same is required to be considered.
10. In view of the above facts and circumstances, the claimant is entitled to following amount of compensation under the different heads:
Sr. Name of the Head Compensation No. Amount (In Rs.) 1 Future loss of Income :
Income per month 7700
(Plus)
Prospective Income (10%)
7700+770 8470
(Minus)
Personal Expenses
8470 X 1/4th = 6353 2117
(8470-2117 = 6293)
(Rs.6353 X 12 X 11) 8,38,596/-
2. Consortium (Rs.48,400 X 5) 2,42,000/-
3. Estate 18,150/-
4. Funeral Expenses 18,150/-
Total Compensation 11,16,896/-
(-) Awarded Amount 13,62,792/-
Excess Compensation / 2,45,896/-
Refund
11. Therefore, total amount of compensation would come to Page 6 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025 NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined Rs.11,16,896/-, which is required to be awarded with 9% p.a. interest from the date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has awarded Rs.13,62,792/- to the claimant, therefore, Rs.2,45,896/-
(Rs.13,62,792 - Rs.11,16,896) is required to be refunded with 9% p.a. interest.
12. For the reasons recorded above, the following order is passed:
[A] The present appeal is allowed accordingly in above terms.
[B] The Insurance Company is entitled to refund for an amount of Rs.2,45,896/- with accrued interest thereon from the date of claim petition till its realisation before the concerned Tribunal, within a period of Four Weeks from the date of receipt of this order.
[C] The Tribunal shall refund the excess to Page 7 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025 NEUTRAL CITATION C/FA/5429/2019 JUDGMENT DATED: 23/04/2025 undefined the appellant by `Account Payee Cheque' / `RTGS' / 'NEFT', after proper verification and after following due procedure.
[D] Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith. No order as to costs.
(D. M. DESAI,J) vk Page 8 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 23:06:09 IST 2025