Gujarat High Court
Oriental Insurance Co. Ltd vs Amalbhai Kiritbhai Das on 28 January, 2025
NEUTRAL CITATION
C/FA/4407/2006 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4407 of 2006
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022
In R/FIRST APPEAL NO. 4407 of 2006
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ORIENTAL INSURANCE CO. LTD
Versus
AMALBHAI KIRITBHAI DAS & ORS.
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Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
MR BHARAT JANI(352) for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/01/2025
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 17.03.2006 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.717 of 2002.
2. Learned advocate Mr.Thomas for the appellant - Insurance Company submitted that learned Tribunal erred in fastening full negligent upon the driver of the truck. He referred to cross examination of the claimant as well as panchnama to submit that it is admitted by the claimant that post accident vehicle which was driven at the relevant time was on divider and same fact gets support from panchnama and all this facts if visualized, Page 1 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined it would demonstrate that claimant was also negligent in causing road accident. Therefore, learned advocate Mr.Thomas submitted to count negligence of the claimant to 30% and reduce compensation to that extent.
2.1. Secondly, learned advocate Mr.Thomas for the appellant submitted that learned Tribunal erred in considering monthly income of the claimant at Rs.13,00/-, whereas, salary slip at Exh.44 at Page no.88 of Record and Proceedings shows gross salary of Rs.10,190/-. Therefore, he submits to consider gross salary of Rs.10,190/- and assess compensation based on such gross salary.
2.2. On above two submissions, learned advocate Mr.Thomas assails impugned judgment and award.
3. Per contra, learned advocate Ms.Mohini Bhavsar for learned advocate Mr.Bharat Jani for respondent no.1 would support the impugned judgment and award and submitted that in case of amputation of leg below knee cannot be considered for grant of compensation for future prospects. She would submit that learned Tribunal has granted Rs.13,000/- inspite of gross salary of Rs.10,191/- and it would equate to non grant of future prospects. Therefore, it cannot be said that learned Tribunal has taken income on higher side. Secondly, it is submitted that scene of accident is such that on Sarkhej Gandhinagar Highway near Gota Cross road, claimant was riding motorcycle and it was dashed from rear side by the truck driver, resulting, claimant being motorcyclist fell on divider and therefore, that aspect Page 2 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined cannot be treated as own negligence.
3.1. Upon above submissions, it is submitted to dismiss the appeal.
4. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimant. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring Page 3 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.
5. Having heard learned advocates for the parties and perusing evidence on record, two questions arise i.e (1) whether claimant was negligent in causing road accident ? and whether learned Tribunal committed error in taking up monthly income at Rs.13,000/-, in case where pay slip shows gross salary of Rs.10,191/- monthly ?
6. By impugned judgment, learned Tribunal awarded Rs.15,89,689/- with interest at the rate of 9% p.a. excluding interest on Rs.4,24,000/- for purchase of prosthetic leg from the date of petition till recovery and held that claimant shall also be entitled to proportionate cost of the petition. It is case where road accident has taken away leg of the claimant and he was required to walk through prosthetic leg throughout his life. Learned advocate Mr.Thomas who has fervently argued to take contributory negligence of the claimant, however could not point out that truck driver has entered into witness box. It is noticeable that truck driver did not chose to contest the claim petition nor filed written statement to deny assertion of negligence made against him. Insurance Company who has secured order under section 170 of MV Act did not chose to lead evidence of driver to buttress contention. Now assessing contention of learned advocate Mr.Thomas, what could be Page 4 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined noticed that learned advocate is relying upon situation which arose post accident to count contributory negligence of the claimant. It is situation of accident which is required to be taken into consideration for counting issue of negligence. Taking scene of accident as it is emerging from FIR, panchanama and deposition and even argument of learned advocate Mr.Thomas, at Sarkhej Gandhinagar Highway when claimant was going towards Gandhinagar riding Motorcycle and reached near Gota cross road, he was dashed by truck driver from behind. Obviously, force of such dashing would result into motorcycle being driven on divider and therefore, motorcycle being on divider post accident cannot be treated as negligence of claimant. In this fact and circumstances, submission of learned advocate Mr.Thomas would not help any fathom. Accordingly, it is answered in negative.
7. Pay slip of the claimant indicates that he was working in Gujarat Maritime Board at the relevant time. Salary slip is produced at Exh.44 which shows gross salary of Rs.10,181/- and deducting Rs.4860/- towards income tax and provident fund, claimant used to get Rs.5331/- in the hands of the claimant. It was gross salary of the claimant which was required to be taken for assessing just and fair compensation. Learned Tribunal for no reasons has taken up monthly salary to Rs.13,000/-. So error is clear on the part of the learned Tribunal in taking up income of the claimant. However, such error is equated by setting off with another error which is committed by learned Tribunal i.e. not granting loss of future prospects. The claimant was 28 years at the relevant time, so 50% is to be Page 5 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined considered for loss of future prospects. It is case where it is to be noticed that claimant has received injury and his left left is amputated above knee.
8. In the case of Kavita Nagar v/s. The Oriental Insurance Company Ltd. [SLP (Civil) No.15643 of 2016], the Hon'ble Apex Court has in para 14 and 15 held as under : -
"14. The need to factor in future prospects when determining compensation becomes even clearer and more pressing when considering the basic human drive to sustain and improve one's life. A self-employed individual, just like someone on a fixed salary, strives to increase their income to meet growing expenses and to adapt to changing circumstances. This is particularly important when considering the purchasing power and quality of life, which tend to 8 increase as a person's career progresses. The notion that a self-employed person's income will remain static is flawed, as they, too, make efforts to raise their fees or charges to keep pace with inflation and market demands. For instance, someone working in a government role or another fixed-income job might receive annual salary adjustments or benefits, reflecting a growth trajectory over time. Similarly, a self-employed professional
--such as a doctor, lawyer, or small business owner--will often increase fees or expand services to keep pace with rising costs. Recognizing these future prospects ensures a fair and just compensation by aligning with real-world economic dynamics, which Section 168 of the Motor Vehicles Act, 1988 seeks to uphold."
"15. This drive to improve one's income is universal, regardless of the employment status, and should be reflected in the compensation calculations for motor accident claims. As the precedent in the quoted judgment suggests, it is unjust to disregard future prospects solely based on the perceived static nature of the income. Instead, a degree-test should be applied, accounting for factors like age, career growth, and economic conditions, Page 6 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025 NEUTRAL CITATION C/FA/4407/2006 ORDER DATED: 28/01/2025 undefined ensuring fair compensation that reflects the individual's true earning potential over time."
9. In view of above, taking income of Rs.13,000/- by learned Tribunal being error is equalize against not granting compensation for loss of future prospects. Thus, submission of learned advocate Mr.Thomas fails and it stands negated.
10. In view of above, the appeal fails and accordingly, it is dismissed. Connected Civil Application also stands disposed of.
11. 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 / NEFT / RTGS, after proper verification and after following due procedure.
12. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
13. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 7 of 7 Uploaded by SATISH C. VEMULLA(HC00206) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:11:46 IST 2025