Icici Lombard General Insurance ... vs Mohmad Ali Mukhtar Ali Ansari
2021 Latest Caselaw 18098 Guj

      C/FA/4578/2010                                  JUDGMENT DATED: 06/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO.        4578 of 2010


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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    ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, SURAT.
                             Versus
           MOHMAD ALI MUKHTAR ALI ANSARI & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 06/12/2021

                                ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 30.09.2010 passed by the Motor Accident Claims Tribunal (Aux), Surat in MACP No. 107 of 2008, the insurance company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2.The following facts emerge from the record of the appeal-

2.1 That on 25.11.2007, at about 18.30 hrs., the original claimant Chagganbhai was travelling as pillion rider in the motorcycle bearing registration No. GJ-12-C-9559 being driven by one Bhaveshbhai Dhirubhai Desai at Mora Bhagal. The said motorcycle was driven by Bhaveshbhai on the left side of the road at moderate speed. When they were going on Bhesan Road and passing near road of Thakkar Petrol Pump at 17.30 hours, one truck bearing registration no. GJ-5YY-9444, which was coming with excessive speed and in rash and negligent manner on the wrong side of the road, dashed with the motorcycle in which original claimant was travelling as a pillion rider due to which the original claimant received serious injuries and fractures on his leg and head. Due to the said accident the left leg of the original claimant got amputated below the knee and he also received other injuries on the body for which he was admitted to New Life Hospital and thereafter, for further treatment, he was taken to Saurabh Orthopedic Hospital where his left leg was further amputated. A complaint came to be lodged with the Icchapore

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

Police Station. As the applicant had lost his memory, the claim petition under Section 166 of the Act came to be filed through his wife and claimed compensation of Rs.40,00,000/-.

2.2 It was the case of the original claimant in the claim petition that he was aged 34 years old on the date of accident and had studied upto standard 10th and had also undergone course of of Fitter from ITI, Surat and also done course of Welder for four years from Larsen and Toubro Co. It was the case of the applicant that in the year 2005-200, he had worked as Welding Lidmate in Saudi Arabia in a Company named Zamil Steel Industries and was earning 1550 riyal per month. The wife of the applicant had deposed at exhibit 42. Documentary evidences were also relied upon such as FIR at exhibit 100, panchnama of the place of incident at exhibit 101, four years training certificate of L & T at exhibit 48, 6 months training certificate of L & T at exhibit 49, Certificate indicating welding work done by the claimant at exhibit 50, Skilled Workman Certificate at exhibit 51, certificate for training as Fitter from Gujarat State State Counseling Fitter at exhibit 53, Appointment letter of the company of Saudi Arabia at exhibit 54 and ID card of the said company at exhibit 55, income tax returns at exhibits 58 to 64, bank statement at exhibit 62, passport at exhibit 66, discharge card of new life hospital at exhibit 67, discharge card of Saurabh Orthopedic Hospital at exhibit 68, discharge card of Mahavir Hospital at exhibit 69, bills regarding treatment at exhibit 70,

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

oral evidence of Dr. Parag Pandya at exhibit 80, oral evidence of Dr. Rashmikant Gandhi at exhibit 81, disability certificate at exhibit 82, permanent disability certificate at exhibit 84.

2.2 The Tribunal upon consideration of oral and documentary evidences, awarded total compensation of Rs. 19,75,000/- along with 7.5% interest thereon from the date of filing of the petition till realisation. Being aggrieved by the same, the insurance company has has preferred the present appeal.

3. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Karan Domse, learned advocate for Mr. Hiren Modi, learned advocate for respondent- original claimant. Though served, no one appears for the other respondents.

4. Mr. Nanavati, learned advocate appearing for the appellant has raised the two contentions, which are -

1. That the Tribunal has committed an error in straightaway considering the income of the respondent-original claimant as Rs.10,000/-. Mr. Nanavati contended that the income tax return clearly shows that the income was much less.

2. It was next contended by Mr. Nanavati that the Tribunal while considering the degree of injury and disability of 70% of body as a whole, has been pleased to grant compensation of Rs.2,00,000/- as future medical expenses and for changing the

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

artificial leg and Rs.70,000/- as maintenance thereof. Relying upon the judgment of the Apex Court in the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd reported in AIR 1995 SC 755, it was contended by Mr. Nanavati that on the amount of Rs.2,70,000/-, which is for future expenses, no interest is leviable.

On the aforesaid grounds, Mr. Nanavati contended that the appeal be allowed and the impugned judgment and award be modified accordingly.

5. Mr. Domse, learned advocate appearing for Mr. Hiren Modi, learned advocate on behalf of the original claimant has supported the impugned judgment and award. Mr. Domse submitted that no interference is called for and the appeal being meritless, deserves to be dismissed.

6. No other or further submissions have been made by the learned counsel appearing for the respective parties.

7. We have perused the papers submitted by Mr. Nanavati, learned advocate, for perusal of this Court. We find that while considering the income of Rs.10,000/- per month, the Tribunal has considered the salary certificate as well as income tax returns at exhibits 58 to 62. The evidence on record also further indicates that the respondent-claimant has worked in renowned firms like L & T and also been to Saudi Arabia, where he used to earn in terms of

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

riyals. Upon re-appreciation of evidence in form of certificate at exhibit 53, it clearly transpires that when the respondent resigned, his monthly salary was Rs. 9,341/-. Even the income tax return for the assessment year 2005-2006 shows his income of the said year was Rs. 1,74,000/-. It is also a matter of record that the age of the respondent-original claimant was 35 on the date of the accident. Upon re-appreciation of the evidence on record as regards income, we are of the opinion that the Tribunal has correctly assessed the income of the respondent- original claimant at Rs.10,000/- per month, which does not require any alteration or modification. However, considering the degree of disability, i.e., 70% of the body as a whole and also considering the fact that the left leg had to be amputated, the Tribunal has awarded Rs. 2,00,000/- as future expenses for changing the artificial limb and Rs.70,000/- for maintenance of the same. The Hon'ble Court in the case of R.D. Hattangadi (supra), in similar set of circumstances, has observed thus -

"So far the direction of the High Court regarding payment of interest at the rate of 6% over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount."

C/FA/4578/2010 JUDGMENT DATED: 06/12/2021

8. Following the ratio laid down by the Apex Court in the case of R.D. Hattangadi (supra), even in case on hand, the amount of Rs. 2,70,000/- is for future medical expenses and therefore, the respondent- original claimant would not be entitled to interest thereon. Except the said clarification and modification in the award, the appeal deserves to be dismissed on the other ground of income raised by Mr. Nanavati, learned advocate for the appellant insurance company. Resultantly, while partly allowing the appeal, it is provided that for the amount of Rs.2,70,000/-, awarded by the Tribunal as Future medical expenses for artificial limb and maintenance thereof, same shall not bear interest. Rest of the impugned judgment and award remains unaltered. The appeal is thus partly allowed. The Tribunal shall refund the appropriate cost and interest as per this judgment to the appellant insurance company. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) BIJOY B. PILLAI