Gujarat High Court
Iffco Tokio General Insurance Company ... vs Wahed Rahimna Sama on 23 April, 2025
NEUTRAL CITATION
C/FA/2076/2017 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2076 of 2017
With
R/CROSS OBJECTION NO. 295 of 2024
In
R/FIRST APPEAL NO. 2076 of 2017
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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
Versus
WAHED RAHIMNA SAMA & ORS.
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Appearance:
MR KRUNAL R SAKSENA(5915) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/04/2025
ORAL ORDER
1. Heard Mr. Krunal R. Saksena, learned advocate for the Appellant and Mr. Hiren M. Modi, learned advocate for the Respondent No.1. Though rule served, nobody appeared for and on behalf of respondent Nos.2, 3 and 4. Perused the record.
2. The challenge in the present appeal is by the original opponent No.4 challenging the judgment and award dated 24.11.2016 passed by the learned Motor Accident Claims Tribunal (Auxi. 3) at Bhuj-Kutch in M.A.C.P. No. 478 of 2012.
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3. The brief facts of the case are as under:
3.1 The applicant was travelling in Truck No. GJ-12T-
7693 on 11.11.2012 as a labourer. Opponent No.1, being the driver of the said Truck was rash and negligent and all of a sudden he lost control over the steering which resulted into an accident and because of the rash and negligent driving of the driver of the Truck, the Truck turned turtle. Resultuntly, the claimant as well as other labourers sitting in the Truck got injured. 3.2 FIR was lodged against the driver of the Truck. Claimant filed Claim Petition claiming compensation of Rs. 15 lakhs. Opponent Nos.1, 2 and 3 who are the driver and owners of the vehicle, though served, did not contest the application. Opponent No.4 insurance company resisted the claim by filing written statement at Exh. 18B. Claimant examined himself at Exh. 24 and also examined Doctor Suresh Doshi at Exh. 26, claimant examined eye witness who was sitting in the said Truck at Ex-46. Claimant produced FIR, Punchnama, Certificate issued by G. K. General Hospital, Bhuj, Discharge Card issued by Civil Hospital, Ahmedabad, case papers of G. K. General Hospital, Bhuj, Discharge Card issued by G. Page 2 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined K. General Hospital, Bhuj, Discharge Summary issued by Orthopedic Surgeon, Doctor Suthar, Disability Certificate issued by Doctor Suresh Doshi, Charge-sheet, Medical Bills and other relevant documents in support of claim petition. After considering the evidence on record, learned Tribunal partly allowed the claim petition granting compensation of Rs.13,48,393/- in favour of claimants and against all opponents with 9% interest to be deposited from the date of petition till realisation.
4. Being aggrieved and dissatisfied with the impugned judgment and award, opponent No.4 - insurance company filed the present First Appeal and the cross objections are filed by claimants for enhancement of compensation.
5. Learned advocate for the appellant submitted that the insurance company is not liable to satisfy the award as no premium is paid by the owner of the vehicle covering the risk of the employees. It is further submitted that claimant was a gratuitous passenger and therefore the insurance company cannot be held liable to pay compensation for the reason of breach of terms and conditions of the policy. It is also submitted that in the Page 3 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined cross-examination, claimant has admitted that he was not travelling in the Truck with goods. Even the FIR also does not state that the claimant was travelling with any goods and the punchnama also support the fact that claimant was not having any goods at the time of accident and therefore the claimant was a gratuitous passenger.
6. Learned advocate for the appellant has placed reliance upon the copy of the policy and submitted that no premium is charged for the employees and personal accident to passengers. It is also submitted that the claimant was sitting in the loading area of the Truck and therefore there is no reason not to believe that the claimant was a gratuitous passenger. Claimant has not examined the employer and no other co-employees are examined by the claimant and therefore, the claimant cannot be said to be an employee travelling in the Truck. Hence, there is a clear breach of the terms and conditions of the policy as well as the provisions of the Motor Vehicles Act, more particularly, Section 166 of the Motor Vehicles, Act. Insurance company has wrongly been held liable for the compensation. Page 4 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025
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7. Per contra, learned advocate for the respondent No.1
- claimant has submitted that the claimant was an employee of opponent No.2 and was doing labour work on the Truck. On the date of accident, claimant was travelling as a labourer and as opponent No.1 lost control over the Truck due to rash and negligent driving, the Truck turned turtle. Resultantly, claimant sustained serious bodily injuries such as fracture on waist, on both legs and buttocks and the place of defecate was severely damaged. Claimant was initially taken to G.K. General Hospital, Bhuj, where he was admitted as an indoor patient from 11/11/2012 to 12/11/2012 and was treated. But as his treatment was not possible there, he was referred to the Higher-Center Civil Hospital, Ahmedabad for specific treatment, where he was admitted as an indoor patient and an operation was performed on his stomach and a tube was inserted in the stomach for defecation. He was admitted as an indoor patient from 12/11/2012 to 02/12/2012, after which he was again taken to General Hospital, Bhuj and there he was admitted as an indoor patient from 03/12/2012 to 01/01/2013, from where he was again shifted for special treatment to Patel Hospital and Super Specialty Center, Bhuj, where Page 5 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined he was admitted as an indoor patient and plastic surgery was done on his excretory area and he was admitted as an indoor patient from 01/01/2013 to 20/02/2013, from where he was taken for special treatment to Dr. Deepak Suthar, a private orthopedic surgeon in Bhuj, where he was admitted as an indoor patient and his right leg and waist were operated. He was admitted as an indoor patient from 20/02/2013 to 03/05/2013. Claimant is still undergoing treatment and he is not able to defecate (passing of stool) naturally, but he has to defecate (pass the stool) through a tube inserted in his stomach and a bag for defecation (passing of stool) has to be tied and attached to his stomach continuously. As per the medical evidence, claimant will have to live with a bag for defecation (passing the stools) for the rest of his life.
8. With regard to injuries, the claimant has produced certified copy of the MLC certificate issued by General Hospital, Bhuj, original discharge card issued by Civil Hospital, Ahmedabad regarding the injuries and treatment he has undergone, original copy of the case- paper book given by General Hospital, Bhuj regarding Page 6 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined the treatment given to him, the original discharge card given by Patel Hospital and Super Specialty Center, Bhuj regarding the treatment given to him, the original discharge summary given by Orthopedic Surgeon Dr. Deepak Suthar regarding his treatment is produced. All these documents are requested to be taken into consideration.
9. It is submitted that because of the accidental injuries, claimant was admitted in various hospitals and the documents such as treatment papers and discharge papers are placed on record. Disability certificate issued by Doctor Suresh Doshi which is produced at Exh. 36 has assessed disability at 80%, however, learned Tribunal has considered disability at 70% without any contrary evidence. Considering the injuries and the disability, the claimant cannot walk independently and has defects in attending nature's call. Considering the aforesaid disabilities, earning capacity be considered accordingly.
10. Claimant on the date of accident was aged about 33 years and was a labourer. In absence of any documentary evidence, learned Tribunal ought to have Page 7 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined considered the rates of minimum wages prevailing on the date of accident. On the date of accident, rates of minimum wages was Rs.5020/- p.m. however, learned Tribunal has assessed income at Rs.3,000/- p.m. which is on a lower side. In catena of decisions, the law has been laid down that while considering the income of victim, in absence of any documentary evidence, the yardstick for considering the income is rates of minimum wages. It is further contended by learned advocate for the claimant that the pain which claimant has undergone because of the injuries, the period of hospitalization, learned Tribunal has assessed less compensation under the head of pain, shock and sufferings. The claim under such head would be Rs.1,50,000/-. So far as loss of amenities is concerned, the injuries are such that the claimant could be deprived of living natural life.
11. The photographs of claimant which are placed on record at page no. 79 of the paper book are also relied upon by the learned advocate for the claimant. In nutshell, the submission canvassed by learned advocate for the claimant is that the amount of compensation which has been awarded is not just and proper. Page 8 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025
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12. I have considered the submissions and perused the record and proceedings. The questions involved in the appeal are mainly with regard to the liability of insurance company to indemnify the owner of the vehicle in absence of coverage of risk, the assessment of income of the claimant, the loss of earning capacity of claimant, and compensation awarded under the head of pain, shock and suffering is whether just and reasonable and non- granting of loss of amenities by learned Tribunal requires interference or not. It appears that the claimant was 33 years of age and was doing a labour work on the Truck which is owned by the opponent No.2. The deposition of the claimant to the effect of his nature of work has not been contradicted by the insurance company in cross examination. In absence of any contrary evidence, learned Tribunal believed that the claimant is a labourer and was doing labour work on the Truck. The policy which is placed on record, at page rd No.24 of the paper book reveals that the risk of 3 party is covered under the policy. However, no premium to cover risk of employee and personal accident of the passenger is covered.
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13. FIR at Exh.27 also states that claimant as well as other persons were travelling in the loading area of the Truck for the purpose of labour work. The statement of claimant which is produced at page 107 of the paper book is also on the same line that the claimant was travelling in the Truck as a labourer for loading fertilizer. The statement of a co-passenger which is placed on record at page no. 101 of the paper book also reveals that the claimant and all persons were travelling in the Truck as a labourer for loading fertilizer. The Truck was used for travelling fertilizer. When the claimant being a labourer siting in the Truck, can't be expected to have any goods with him, more particularly, opponent No.2 who is the owner of the Truck has chosen not to defend the application. The factual aspect can only be answered by opponent No.2. In the cross examination of the claimant, nothing fruitful could be extracted by the insurance company regarding the nature and status of job. When owner of the Truck remains silent on the question of the nature of work, there is no reason not to believe the version of claimant that he was travelling in the Truck as a labourer. The contention of insurance company that the risk of Page 10 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined employee and risk of personal accident of passenger are not covered has no force considering the factual aspect that the claimant being a labourer falls within the definition of third party and the insurance company is liable to indemnify the owner for risk of the third party.
14. Considering the injuries sustained by the claimant and the nature of work which he was doing before the date of the accident, it is amply clear that because of the permanent disabilities sustained to the claimant there are almost nil chances that the applicant could now resume to its original work. The labourer is accepted to do labour work during the course of his employment and when the victim who suffers injuries such as injuries found in the present facts, it is almost impossible for the claimant to carry on the work which he was doing prior to the date of accident.
15. So far as the injuries, disabilities and difficulties which are stated in examination-in-chief of claimant, there is no effective cross-examination, except general denials. Resultantly, considering the facts in the present case, it is the case of 100% functional disability (100% Page 11 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined loss of earning capacity).
16. The injuries and the period of hospitalisation are such that the claimant is required to be compensated to the tune of Rs.1,25,000/- under the head of pain, shock and sufferings. So far as loss of amenities are concerned, the claimant is entitled to Rs.1,00,000/- under such head.
17. The First Appeal of insurance company fails and the Cross Objections of claimant are partly allowed accordingly. The Judgment and Award is modified to the following extent. Claimant is entitled to following amount of compensation:-
Head Amount (Rs.)
Future loss of Income 12,65,040/-
Monthly Income - 5020 X 12 = 60,240/-
Future rise in Income - (40%)
(60,240 X 40% = 24,096/-)
Total 60,240 + 24,096 = 84,336/-
Disability (100%)
Multiplier (15)
Total 84,336 x 15 = 12,65,040/-
Actual loss of Income 1,20,480/-
Pain, Shock & Suffering 1,25,000/-
Special diet, Transportation and 1,00,000/-
Attendant charges
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NEUTRAL CITATION
C/FA/2076/2017 ORDER DATED: 23/04/2025
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Loss of Amenities 1,00,000/-
Medical expenses 4,73,393/-
Total Compensation 21,83,913/-
(-) Awarded Amount by Tribunal 13,48,393/-
Enhanced Compensation
8,35,520/-
(Rate of Interest @ 9% p.a.)
18. Therefore, total amount of compensation would come to Rs.21,83,913/-, which is required to be awarded with 9% p.a. interest from date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has already awarded Rs.13,48,393/- to the claimant, therefore, Rs.8,35,520/- (Rs.21,83,913 - Rs.13,48,393) is required to be enhanced with interest @ 9% p.a.
19. For the reasons recorded hereinabove, the following order is passed:
[A]. The First Appeal fails and the Cross Objections are partly allowed accordingly in above terms.
[B]. The Insurance Company is directed to deposit the enhanced amount 8,35,520/- with 9% p.a. Page 13 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025 NEUTRAL CITATION C/FA/2076/2017 ORDER DATED: 23/04/2025 undefined interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of 6 weeks from the date of receipt of this order.
[C]. The Tribunal shall disburse the entire awarded amount lying in the FDR and / or with the Tribunal, with accrued interest thereon if any, to the claimant, by 'Account Payee Cheque' / RTGS / NEFT', after proper verification and after following due procedure.
[D]. While making the payment, the Tribunal shall deduct the Courts fees, if not paid, in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
(D. M. DESAI,J) MAYA Page 14 of 14 Uploaded by MAYA S. CHAUHAN(HC01402) on Fri May 09 2025 Downloaded on : Sat May 10 06:53:52 IST 2025