Gujarat High Court
Shriram General Insurance Co Ltd vs Patel Hiteshkumar Amrutlal on 23 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4245 of 2019
With
R/FIRST APPEAL NO. 3762 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No
==========================================================
SHRIRAM GENERAL INSURANCE CO LTD
Versus
PATEL HITESHKUMAR AMRUTLAL & ORS.
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The captioned First Appeals are preferred by the respective appellants against the impugned common judgment and award dated 21.04.2018 passed by the Page 1 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined learned Motor Accident Claims Tribunal (Main), Mahesana in Motor Accident Claim Petition Nos.627, 628 and 629 of 2010 considering MACP No.627 of 2010 as main whereby the learned tribunal has partly allowed the claim petitions.
2. Since the common issues are involved in the captioned appeals and upon consent of learned advocates appearing for the respective parties, the matters are taken up for final hearing and decided by this common judgment.
3. Heard learned advocate Mr.Rathin Raval and learned advocate Mr.J.M.Barot for the respective parties in the captioned First Appeals.
4. The brief facts of the case are as under:
4.1 On 13/06/2010, at about 3:15 PM, deceased Kalpeshkumar Ramdas Patel, injured Hiteshkumar Amrutlal Patel and deceased Anantkumar Babulal Patel (worker) Page 2 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined were going to Balasinor in the Optra Magnum car bearing registration No.GJ-2-AP-2024 being driven by Hiteshkumar Amrutlal Patel for their business purpose and while returning from Balasinor. When the car reached at the place of accident i.e. Balasinor-Kathlal road, the opponent No.1-driver of truck bearing registration No.GJ-7-X-4950 came from opposite direction with full speed and in a rash and negligent manner endangering life and safety of others dashed with the car. Resultantly, all three of them sustained serious injuries wherein deceased Kalpeshkumar Ramdas Patel and deceased Anantkumar Babulal Patel (worker) succumbed to their injuries on the spot, whereas Hiteshkumar Amrutlal Patel sustained injuries. 4.2 The respondent Nos.1 to 5-original claimants being legal heirs of deceased Kalpeshkumar Ramdas Patel filed Motor Accident Claim Petition No.627 of 2010 for a compensation of Rs.1,00,00,000/-and respondent No.8-
original claimant i.e. Hiteshkumar Amrutlal Patel filed Page 3 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined Motor Accident Claim Petition No.629 of 2010 for compensation of Rs.19,00,000/- before the learned Motor Accident Claim Tribunal (Main), Mahesana. The legal heirs of deceased Anantkumar Babulal Patel (worker) also filed Motor Accident Claim Petition No.628 of 2010 for compensation of Rs.20,00,000/- before the learned Motor Accident Claim Tribunal (Main), Mahesana. The learned Tribunal consolidated all three claim petitions and decided by common Judgment and award considering Motor Accident Claim Petition No.627 of 2010 as main claim petition.
4.3 Notices were duly served to all opponents. Opponent Nos. 1 and 2-driver and owner of truck did not appear before the Tribunal. Opponent No.3-Insurance Company of truck appeared and filed Written Statement at Exh-142 and denied allegations. Opponent No.4- Hiteshkumar Amrutlal Patel driver of car appeared and filed Written Statement at Exh-14 and denied his Page 4 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined negligence in causing accident. Opponent No.5-Insurance Company of car appeared but did not file reply. 4.4 Thereafter, issues were framed at Exh-18 by the learned Tribunal. In M.A.C.P.No.627/2010 - Patel Jalpaben Kalpeshkumar has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.43. In M.A.C.P.No.628/2010 - Patel Babulal Ramdas has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.47 whereas in M.A.C.P.No.629/2010
- Patel Hiteshkumar Amrutlal has filed an affidavit in the form of deposition, for the claim of compensation vide Exh.44.
4.5 In MACP No.627 of 2010, FIR, spot panchnama, Post mortem Note and Income tax returns (2007-08, 2008- 09, 2009-10 and 2010-11) has been produced at Exh-49, 50, 52 and 107, 108, 109 and 110 respectively. In MACP No.628 of 2010, Post mortem Note has been produced at Page 5 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined Exh-57. In MACP No.629 of 2010, the injured has produced Medical treatment Certificate at Exh-65. 4.6 After considering the evidence and material placed on record, the learned Tribunal vide its judgment dated 21/04/2018 and award dated 23/04/2018, partly allowed all claim petitions and found negligence of truck driver to the extent of 80% and of car driver to the extent of 20%.
4.7 The learned tribunal in MACP No.627 of 2010 awarded a total compensation of Rs.45,35,072/-, and held Opponents Nos. 1 to 3 jointly and severally liable, while exonerated Opponents Nos. 4 and 5 and therefore awarded Rs.36,28,058 (80% amount of Rs.45,35,072/-). 4.8 In MACP No.628 of 2010, the learned Tribunal awarded a compensation of Rs.12,79,600/- and held Opponents Nos. 1 to 6 jointly and severally liable. Page 6 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025
NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined 4.9 In MACP No.629 of 2010, the learned Tribunal awarded a total compensation of Rs.11,76,480/-, and deducted 20% contributory negligence and awarded Rs.9,41,184/- (80% amount of Rs.11,76,480) and held Opponents Nos. 1 to 3 jointly and severally liable. Being aggrieved, the appellant-insurance company / appellants- original claimants with their respective First Appeals Nos. before this Court. No appeal is preferred against Judgment and award passed by learned Tribunal in MACP No.628 of 2010.
5. Learned advocate for the appellant/s- original claimant/s in the respective matter submitted that granting of compensation by the learned Tribunal is on a lower side. The appellant was driving the car at a moderate speed and without any specific and clear evidence attributing negligence on the part of the appellant, learned Tribunal has erred in holding appellant negligent to the Page 7 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined extent of 20% in the occurrence of accident. The finding on the question of negligence is erroneous as the driver of truck bearing Registration No.GJ-07-X-4590 has not deposed on the question of negligence. It is submitted that the driver of truck came from opposite direction with an excessive speed and dashed with the car. A chargesheet against the driver of truck was also filed which further strengthen the case of the claimant that accident has occurred due to sole negligence on the part of truck driver.
5.1 It is further submitted that the claimant was aged about 32 years at the time of accident and was possessing degree of Diploma Mechanical Engineering. Appellant was a Manager in Starline Cars and was earning Rs.10,000/- p.m. by way of a salary. While considering the income of the appellant, learned Tribunal has not considered prospective income of the appellant as held in Page 8 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined the case National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017)16 SCC 680. Looking to the injury sustained to the appellant which is in the nature of multiple fractures on the body, for disablement examined by Dr.Kamlesh Gurjar at Ex.89, who has considered the disability at 38.3% body as whole. A plastic surgeon Dr.Kiritbhai Patel is also examined by claimant who has considered disfigurement at 18%. While considering the disability of appellant, learned Tribunal has considered disability as body of whole as 28.15%. After deducting 20% negligence on the part of driver of the car, learned Tribunal has awarded compensation of Rs.9,41,184/- (80% of Rs.11,76,480/-).
6. Per contra, learned advocate for respondent No.3
- Insurance Company in the respective matter submitted that the appellant has received an amount of Rs.2,58,014/- from medical insurance from Employees State Insurance Page 9 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined Corporation. Ex.137 is the evidence which confirms the payment under Employees State Insurance Corporation. It is submitted that the said amount is liable to be deducted from awarded compensation for the reason that the claimant is not entitled to double payment for the same cause which has arisen out of the same accident. The further contention raised by the learned advocate for the respondent is that the insured of the vehicle was not holding a licence on the date of accident. The RTO Officer who was examined at Ex.146 has deposed that the licence at Ex.151 did not have the endorsement for the renewal for the period of 04.03.2008 to 03.03.2011. It is therefore submitted that when the driver of the vehicle was not holding effective driving licence, the insurance company cannot be saddled with the liability of making payment of compensation.
Page 10 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025
NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined
7. We have considered the submissions canvassed by learned advocates for the respective parties and also perused record and proceedings. On the date of accident, claimant Hiteshkumar Amurt Patel alongwith two other persons namely Kalpeshkumar Ramdas Patel and Anantkumar Babulal Patel traveling in car bearing No.GJ- 2-AP-2024 and car reached near the place of accident, a truck coming from opposite direction dashed with the car. Resultantly, claimant-Hiteshkumar Amrutlal Patel sustained serious injuries and other two passengers namely Kalpeshkumar Ramdas Patel and Anantkumar Babulal Patel died because of accidental injuries. 7.1 A question regarding holding claimant, who happens to be driver of the car found negligent to the extent of 20% is under challenge by the claimant. Learned Tribunal has considered oral as well as documentary evidence. The Panchnama which has been considered by the learned Tribunal indicates that both the vehicles were Page 11 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined found negligent and responsible in the occurrence of accident. When sufficient material is available for determining the question of negligence, and in absence of concrete evidence not to hold driver of the car negligent, none examining the driver of truck is of no much importance. Claimant has not led any evidence to substantiate his contention of driving the car at a moderate speed at the time of accident and what step he take to avoid the accident. In absence of any convincing material, we are not inclined to interfere in the finding of negligence and therefore we confirm the negligence of the truck driver at 80% and negligence of the car driver at 20%.
7.2 Ex.148 which is a copy of licence issued by RTO. On perusal of same, it transpires that during the period of accident, the car driver was having a valid licence. It has been observed by the learned Tribunal that Ex.148 which is original record of RTO, indicates that Page 12 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined there is an endorsement regarding renewal for the period from 04.03.2008 to 03.03.2011. Thus, merely because in the computerize record which is maintained by RTO by one reason or other, does not mention about the renewal of licence cannot lead to a conclusion that driver was holding an effective licence. When the original record maintained by RTO is produced by the witness from RTO indicates that the licence was renewed, the contention of the learned advocate for the insurance company has rightly been rejected by the learned Tribunal. 7.3 While considering the income, learned Tribunal has not taken into consideration the amount Rs.2,58,014/- received by the claimant as part of medical expenses under Employees State Insurance Corporation. The provisions of Employees State Insurance Corporation is benevolent legislation. It provides for certain benefits to employee in case of sickness, maternity and employment injuries and to Page 13 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined make provisions for certain other matters in relation thereto. The insurance fund is mainly derived contribution from employer and workmen. The contributions payable in respect of each workman based on his average wages and in case of sickness or employment injuries, the benefits under the Act are made available to the employee. Whereas Motor Vehicles Act is a social welfare legislation under which compensation is provided by way of award to the people who sustained injuries or whose kit and kins are killed are necessarily to be provided with a relief in short time. The compensation which is paid under Motor Vehicles Act has to be considered liberally. Both the enactments function on different footings and merely because the claimant has received some amount as part of medical expenses under Employees State Insurance Corporation, it will not debar the claimant from claiming compensation under the head of medical expenses under Motor Vehicles Act. We are therefore not inclined to Page 14 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined accept the contention of learned advocate for the Insurance Company that it would be double payment to the claimant if an amount of Rs.2,58,014/- is not deducted from the award.
8. Looking to the nature of injuries sustained to the claimant, the disability which has been assessed by the learned Tribunal as 28.15% is modified and made a round figure of 30% in the interest of justice.
9. In view of this, the judgment and award is modified to the following extent.
Head Compensation
1 Monthly Income Rs. 10,000/-
Prospective income 40% Rs. 4,000/-
(Rs.10,000 X 40/100)
Total monthly income Rs. 14,000/-
(Rs.10,000/- + Rs.4,000/-)
2 Disability (30%) Rs. 42,00/-
Rs.14,000 x 30/100)
3 Future loss of income Rs.8,06,400/-
(Rs.4200x16x12)
4 Pain, shock and suffering Rs. 50,000/-
Page 15 of 17
Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
5 Medical expenses Rs.4,51,000/-
6 Disfigurement of face Rs. 50,000/-
7 Attendance Charges Rs. 15,000/-
8 Special and nutritious diet Rs. 15,000/-
9 Transportation expenses Rs. 15,000/-
10 Actual loss of income Rs. 40,000/-
Grand Total Rs.14,42,400/-
(-awarded amount by the Rs.11,76,480/-
Tribunal)
Enhanced amount Rs.2,65,920/-
Interest @ 9%
10. For the reasons recorded above, following order is passed.
10.1 The appellant-original claimant/s are entitled to enhanced amount of compensation of Rs.2,65,920/- @ 9% interest per annum from the date of claim petition till realization from Insurance Company. 10.2 The Insurance Company is directed to deposit the enhanced amount of compensation with interest as above within a period of Four Weeks from the date of Page 16 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025 NEUTRAL CITATION C/FA/4245/2019 JUDGMENT DATED: 23/01/2025 undefined receipt of this order.
10.3 The present First Appeals are partly allowed. The impugned common judgment and award dated 21.04.2018 passed by the learned Motor Accident Claims Tribunal (Main), Mahesana, is modified to the aforesaid extent. Record and proceedings be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 17 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 12 2025 Downloaded on : Fri Feb 14 23:46:45 IST 2025