Gujarat High Court
National Insurance Co. Ltd vs Kinesh Devendrabhai Shah (Deceased ... on 8 January, 2025
NEUTRAL CITATION
C/FA/1244/2007 ORDER DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1244 of 2007
With
R/CROSS OBJECTION NO. 90 of 2008
In R/FIRST APPEAL NO. 1244 of 2007
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NATIONAL INSURANCE CO. LTD.
Versus
KINESH DEVENDRABHAI SHAH (DECEASED LITIGANT) & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Defendant(s) No. 1
MR VAIBHAV N SHETH(5337) for the Defendant(s) No. 1.1
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/01/2025
COMMON ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 05.04.2006 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.697 of 2001. The claimant has filed cross-objections in the first appeal.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 17.07.2001, at about 9.50 am, the claimant was going on his scooter bearing No.GJ-1-BF-9207 to his office. When he reached the place of accident, one Maruti Car bearing No.GJ-1-K-2030 Page 1 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:36:09 IST 2025 NEUTRAL CITATION C/FA/1244/2007 ORDER DATED: 08/01/2025 undefined driven by opponent No.1 came in rash and negligent manner and dashed with the scooter of the claimant. As a result, the accident took place and claimant sustained severe injuries. The claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.8,00,000/-. The learned Tribunal vide impugned judgment and award dated 05.04.2006 has granted compensation to the tune of Rs.3,62,000/-. Hence, the present appeal.
3. Heard learned advocates for the respective parties.
4. The Insurance Company has filed this appeal for the reduction of the claim amount whereas original injured claimant who is survived by his heir is now seeking enhancement of the compensation on the ground that compensation under the head of loss of pain, shock and suffering is granted on the lower side.
5. Learned Tribunal in page 20 of the judgment while assessing the compensation observed as follows :
"It would be proper to take average income from the salary at Rs.1,70,000/-. His income can be considered from salary at Rs.1,40,000/- per annum and income by way of commission for the work as LIC Agent at Rs.40,000/-. Therefore, his gross income would be around Rs.1,80,000/- to Rs.2,00,000/-. Therefore, admitting the gross income as stated by him about Rs.2,00,000/- and considering the fact that though Doctor has assessed the disability at 20% body as a whole his earning capacity or earning at present is not affected and may be it may have some bearing in future and therefore, instead of disability at 20%, it is required to be taken at 10% for the purpose of future economic loss and thus it would come to Rs.20,000/- per annum and adopting the multiplier of 15 looking to his age the future economic loss can be assessed at Rs.3,00,000/-.
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Thus the appellant would be entitled to recover the amount of Rs.3,87,000/- from the opponent.
However, the applicant has been awarded the amount of Rs.25,000/- in view of the application filed u/s. 140 of M.V.Act for no fault liability and hence the amount of Rs.25,000/- is required to be deducted from the amount of Rs.3,87,000/- and thus the applicant would be entitled to recover the amount of Rs.3,62,000/- along with the interest at the rate of 7.5% in view of the judgment of the Hon'ble Apex Court reported in 2005 TAC p.305. The learned Advocate Shri Shevkani has prayed for higher rate of interest. But it is required to be mentioned that the Hon'ble Apex Court has after considering the recent economic trend and falling in the rate of interest has observed in its judgment reported in 2005 TAC p.305 that the interest can be awarded at the rate of 7.5% only."
6. In the background of above, if we examine facts of the case, it appears that the claimant who has expired during the pendency of the appeal on the unfortunate day was riding scooter No.GJ-1-BF-9207 from Vadaj towards his office at Income Tax in the city of Ahmedabad and was dashed by Maruti Car bearing No.GJ-1-K-2030 which came in full speed from opposite side. Medical certificate on record at Exhibit-45 indicates that due to road accident, the claimant who expired during the pendency of appeal suffered fracture of patella bone and was operated on the same day to treat his injury. Apart from that no other injury claimant has sustained from the road accident. The Insurance Company mainly argued on the ground that the deceased claimant who was serving in Income Tax office at the relevant point of time continued his service even after receiving the injury in road accident. He has not suffered any loss of income and therefore, learned Tribunal erred in granting Page 3 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:36:09 IST 2025 NEUTRAL CITATION C/FA/1244/2007 ORDER DATED: 08/01/2025 undefined compensation for future economic loss. However, while arguing so, learned advocate appearing for the Insurance Company failed to notice that earning capacity and factor of the claimant has been reduced. The physical frame of the claimant has been disturbed and the law recognizes way to compensate is grant of monetary compensation. Thus, merely claimant continued in service and continued to earn would not be a reason to deny the compensation to the claimant. Useful reference can be made to judgment of Hon'ble Supreme Court in case of Sandeep Khanuja vs. Atul Dande and another - 2017 (3) SCC 351.
7. In Mohd. Sabeer alias Shabir Hussain vs. Regional Manager, U.P. State Road Transport Corporation - 2022 SCC Online SC 1701, the Hon'ble Apex Court in para 20 observed that even if the income of the appellant had increased after the accident, it would not be the ground to disable the claimant from claiming compensation for future prospects as the rise of the income may be attributable to multiple other factors.
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8. The total amount of compensation assessed by the learned Tribunal is Rs.3,62,000/-. Learned Tribunal while assessing the compensation assessed functional disability to 10% as against physical disability of 20% which demonstrates that learned Tribunal has taken sufficient care while assessing loss of earning capacity which may result into future economic loss. In view of above, I see no reason to interfere with the impugned judgment and award as far as appeal filed by Insurance Company is concerned. Noticeably for injury of fracture of patella has been assessed for Rs.20,000/- under the head of pain, shock and Page 4 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:36:09 IST 2025 NEUTRAL CITATION C/FA/1244/2007 ORDER DATED: 08/01/2025 undefined suffering. The incident took place in the year 2001. The claimant who has suffered injury has also expired during the pendency of this appeal and now survived by his daughter only.
9. In view of above, the appeal as well as cross-objections sans merit and both are dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 5 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:36:09 IST 2025