Gujarat High Court
The New India Insurance Co. Ltd vs Jayeshkumar Hiralal Sanghvi on 2 December, 2021
Bench: R.M.Chhaya
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2281 of 2018
With
R/CROSS OBJECTION NO. 79 of 2018
In
FIRST APPEAL NO. 2281 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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THE NEW INDIA INSURANCE CO. LTD.
Versus
JAYESHKUMAR HIRALAL SANGHVI & 4 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR PARESH M DARJI(3700) for the Defendant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 02/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
1. Feeling aggrieved and dissatisfied by the judgment and
award dated 7.9.2017 passed by the Motor Accident Claims
Tribunal (Main), Navsari in MACP No.107 of 2010, the
appellant - Insurance Company of Esteem Car (Original
Opponent No.5) has preferred this appeal under Section 173 of
the Motor Vehicles Act, 1988 (Act for short).
2. The original claimants have also filed their cross
objections.
3. The following facts emerge from the record of the appeal:
3.1. That the accident occurred on 15.4.2009 near Samrat
Hotel, National Highway No.8 that is near Gandevi. It is the
case of the claimant that on the said date, the respondent -
original claimant was travelling in a Maruti Esteem Car bearing
registration No. GJ-5-CH-3174 owned by one of his friend to
visit Raymond Showroom. It is further the case of the
respondent - original claimant that when they reached the
scene of occurrence, a truck bearing registration NO.GJ-5-UU-
9777 came from the other side and dashed with the Maruti
Esteem Car because of which, the respondent - original
claimant sustained serious injuries and was admitted to Alipore
Hospital and Research Centre, Chiklhi and thereafter shifted to
Mahavir Hospital. The FIR was lodged with Gandevi Police
Station being C.R. No.I-8/2009.
3.2. It is the case of the respondent - original claimant that
he had to remain indoor patient from 15.4.2009 to 4.5.2009
and had to undergo surgery. It is the case of the respondent
- original claimant that the injuries sustained were of such a
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
serious nature that the whole nervous system of respondent -
original claimant is totally impaired and a permanent tube to
pass urine is also fixed. The present claim petition was
preferred under Section 166 of the Act and the respondent -
original claimant claimed Rs.50,00,000/- with 12% interest as
compensation.
3.3. The respondent - original claimant was 44 years old on
the date of the accident and was running a garment shop in
the name and style "Be Happy" and was earning
Rs.1,61,925/-. In order to buttress the said contention, the
respondent - original claimant relied upon income-tax returns
being Exhs. 115, 116 and 117. The respondent - original
claimants also relied upon the permanent disability certificate
issued by Dr. Nayan G. Bhatt at Exh.11 which indicates that
90% of the body is disabled. The said doctor was also
examined at Exh.110. The Tribunal after considering the
evidence as a whole assessed the permanent disability of the
body as a whole at 100%.
3.4. Relying upon the income tax return of the assessment
year 2008-2009, the Tribunal assessed the income of the
respondent - original claimant at Rs.7,341/- p.m. and granted
30% prospective income and applied multiplier of 14 and thus
awarded Rs.12,96,612/- as compensation under the head of
future loss of income. Over and above the same, the Tribunal
also granted Rs.44,046/- as actual loss of income for six
months, Rs.10,000/- as compensation under pain, shock and
sufferings, Rs.12,900/- attendance, transportation and special
diet and Rs.23,560/- as medical bills and thus granted a total
compensation of Rs.13,89,118/- with interest @ 9% p.a. from
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
the date of filing of the claim petition.
4. The Tribunal after appreciating the evidence on record
and more particularly considering the panchnama at Exh.55
and the FIR at Exh.54 held the drivers of both the vehicles
negligent, however, did not quantified the contributory
negligence between drivers of both the vehicles.
5. Being aggrieved by the same, the Insurance Company of
the Maruti Esteem Car has preferred this appeal of the Esteem
Car and the respondent - original claimant has filed cross
objections.
6. Heard Mr. H.G.Mazmudar, learned advocate for the
appellant - Insurance Company of Maruti Esteem Car, Mr.
Paresh Darji, learned advocate for the original claimant and
Mr. Alkesh Shah, learned advocate for the Insurance Company
of Truck Trailer.
7. Mr. H.G.Mazmudar, learned advocate appearing for the
appellant - Insurance Company of Maruti Esteem Car has
contended that the Tribunal has misled the evidence in form of
FIR at Exh.54 and panchnama at Exh.55. Mr. Mazmudar,
learned advocate contended that Tribunal having found the
drivers of both the vehicles were negligent, considering the
contents of the panchnama, the Tribunal ought to have held
the driver of the Esteem Car and the driver of the truck trailer
involved in the accident equally negligent that is in the ratio
of 50:50. On the aforesaid grounds, it was contended by Mr.
Mazmudar, learned advocate that the award is erroneous and
same deserves to be modified. Though it is found that on
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
quantum also, the grounds are raised, the same are not
canvassed before us.
8. Mr. Alkesh Shah, learned advocate appearing for the
other Insurance Company submitted that the impugned
judgement and award even on negligence is proper and the
same does not require any modification.
9. Mr. Paresh Darji, learned advocate for the respondent -
original claimant submitted that as far as aspect of negligence
is concerned, this Court may pass appropriate order.
10. Mr. Darji, learned advocate for the respondent - original
claimant relied upon evidence of income-tax returns at Exhs.
115, 116 and 117 and contended that the Tribunal has
committed an error in calculating the income of the deceased
at Rs.7,341/- p.m. Relied upon the income-tax returns
Exh.116 which is in proximity on the date of the accident, it
was submitted by Mr. Darji, that the said return should be
taken on account as basis to determine the income. Mr. Darji,
referring to the judgmeent of the Hon'ble Apex Court in the
case of National Insurance Company Limited v. Pranay Sethi
and Ors. reported in (2017) 16 SCC 680 contended that the
income would mean salary/gross income minus tax. Mr. Darji,
learned advocate, therefore, contended that the income
deserves to be enhanced based upon the income-tax return and
more particularly Exh.116. Mr. Darji, learned advocate,
further contended that accordingly, the actual loss of income
for six months also deserves to be enhanced. Mr. Darji,
learned advocate contended that the Tribunal has failed to
consider the degree of injuries sustained by the respondent -
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
original claimant. Mr. Darji, contended that the doctor has
clearly opined which is also believed by the Tribunal that the
lower limb of the respondent - original claimant is totally
impaired because of the accident. Mr. Darji, learned advocate
contended that having come to the conclusion that the
respondent - original claimant has suffered 100% permanent
disability to the body as a whole, the Tribunal has committed
an obvious error in granting a meager amount of Rs.10,000/-
as pain, shock and sufferings. Mr. Darji, learned advocate,
relied upon the evidence on record and contended that the
respondent - original claimant has to pass through
unimaginable pain and the same is of a continuous nature
considering the injuries sustained. Mr. Darji, contended that
the age of the respondent - original claimant was just 44 years
on the date of the accident and Tribunal has committed an
error in not granting any compensation under the head of loss
of amenities of life and for future medical expenses. Mr.
Darji, learned advocate contended that while allowing the cross
objections, the same be enhanced to Rs.1,50,000/- on each
head. It was further contended by Mr. Darji, that similarly
Tribunal has awarded a very meager amount under the head of
attendance, transportation and special diet and it deserves to
be enhanced appropriately.
10.1. Mr. Darji, learned advocate further relied upon the
deposition of Jitendrabhai Rameshbhai Patel at Exh.78 and
Meghnath Ramavtaar Patel at Exh. 86 and contended that the
respondent - original claimant had also a medi-claim wherein
medical bills to the tune of Rs.2,03,540/- were submitted.
However, the said Insurance Company has granted medi-claim
only to the tune of Rs.57,039/-. Accordingly to Mr. Darji,
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
learned advocate, the balance amount of Rs.1,45,501/- deserves
to be granted as medical reimbursement. Mr. Darji, relied
upon the deposition of Jitendrabhai Rameshbhai Patel at
Exh.78 and Meghnath Ramavtaar Patel at Exh. 86 and
contended that the said deposition clearly indicates that the
bills were submitted and the xerox copy of the same has been
produced on the record of this claim petition. It was thus
contended that the cross objections be allowed.
11. Per contra, Mr. H.G.Mazmudar, learned advocate for the
appellant - Insurance Company of Maruti Esteem Car and Mr.
Alkesh Shah, learned advocate for the Insurance Company of
Truck Trailer has opposed the cross-objections. It was
contended by learned advocates appearing for the respective
Insurance Companies that the Tribunal has rightly appreciated
the evidence on record and the income of the respondent -
original claimant has been correctly determined at Rs.7,341/-
and no modification is required. Mr. Mazmudar, contended
that the Tribunal has after appreciation of evidence on record
has awarded Rs.10,000/- as compensation under pain, shock
and sufferings which does not deserve to be modified. Mr.
Mazmudar as well as Mr. Shah, learned advocates appearing
for the respective Insurance Companies submitted that only
because the 100% disability has been assessed, the respondent
- original claimant would not be entitled as loss of amenities
or loss of enjoyment of life and future medical expenses as
nothing is shown or proved by the respondent - original
claimant. As far as the medical bill reimbursement, learned
advocates appearing for the respective Insurance Companies
after verifying the said from original record and proceedings of
the Tribunal submitted that this Court may pass appropriate
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
order of increasing the amount of medical reimbursement. Mr.
Mazmudar as well as Mr. Shah, learned advocates contended
that even otherwise the cross-objections being meritless
deserves to be dismissed.
12. No other and further submissions/contentions have been
made by learned advocates appearing for the parties.
13. We have perused the original record and proceedings.
The accident has occurred on 15.4.2009. The Tribunal has
considered the income-tax return at Exh.116 while determining
the income of the respondent - original claimant. However,
upon re-appreciating the said evidence, the same indicates that
gross income of the respondent - original claimants was
Rs.1,15,745/-. The said return also indicates that the age of
the respondent - original claimants was 44 years and was
engaged in hosiery business. In order to determine the
income, even if we take basis of Exh. 116 which is income-tax
return for the year which is in proximity to the date of the
accident, the monthly income would come to Rs.9,645/- and
after adding 30% prospective income and considering 100%
disability, by applying multiplier of 14 and deducting 10%
income-tax, the same would amount to Rs.18,95,840/-.
Similarly, the actual loss of income would come to
Rs.57,870/-.
14. We find that there is no dispute on the aspect that the
injuries sustained by the respondent - original claimants are
found to be of such a serious nature that he has incurred
100% disability. The same is not even the question before us.
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
The Record and Proceedings indicates that the respondent -
original claimant had to undertake rigorous treatment at
different hospitals and his lower limb is totally impaired for
his whole life. The nature of permanent disability which is
found from the record is of such a nature that his spinal-cord
and head are severely impaired and the respondent - original
claimant has now become paralytic and is dependent on others
because of 100% functional disability.
15. We have gone through the FIR at Exh.54 and panchnama
at Exh.55. The Tribunal has come to the conclusion that the
drivers of both the vehicles were negligent for committing
accident. Upon re-appreciation of the evidence on record, it is
found that though both the drivers were fully aware that they
were driving on the National Highway, the manner in which
the accident has occurred and even though the truck trailer
was of heavy vehicle, we are in entire agreement with the
conclusion arrived at by the Tribunal that drivers of both the
vehicles are negligent. Upon re-appreciation of the evidence
on record, we deem it fit to hold that the drivers of both the
vehicles were contributory negligent in the ratio of 50:50.
16. Upon considering the evidence on the nature of injuries
sustained and the treatment through which the original
claimant had to pass through, we are of the opinion that the
respondent - original claimant is entitled to Rs. 1,25,000/- as
compensation under the head pain, shock and sufferings.
Similarly, the accident has occurred when the respondent -
original claimant was just 44 years old with a promising
business because of acquiring such permanent disability, he has
lost his enjoyment of life and would also require some amount
C/FA/2281/2018 JUDGMENT DATED: 02/12/2021
for future medical expenses. In totality of facts, we deem it
fit to award Rs.1,25,000/- as compensation under the head of
loss of amenities of life, enjoyment of life and future medical
expenses in toto. Similarly, upon re-appreciating the evidence
and the extent of treatment which is given, the respondent -
original claimant would be entitled to Rs.35,000/- as
compensation under the head of transportation and special
diet. As far as the contention of medical bills are concerned,
we ourselves examined the original record and even the
learned advocates for the appellant as well as the other
Insurance Company have no objection if the medical
reimbursement is granted to Rs.1,45,501.
17. Resultantly, the appeal filed by the Insurance Company of
Maruti Car Esteem is allowed only to the extent of
contributory in question as observed herein above and the
cross-objections stand allowed to the aforesaid extent.
18. Both the Insurance Companies shall deposit their share of
the enhanced compensation with 7.5% interest from the date of
filing of the claim petition till its realization within a period of
8 weeks from the date of receipt of this judgement.
19. Record and Proceedings be sent back to the Tribunal
forthwith. There shall be no order as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
