Gujarat High Court
National Insurance Company vs Sunilkumar Dhirajlal Maniyar on 7 December, 2021
Bench: R.M.Chhaya
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1778 of 2009
With
R/FIRST APPEAL NO. 1779 of 2009
With
R/FIRST APPEAL NO. 1780 of 2009
With
R/FIRST APPEAL NO. 1781 of 2009
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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NATIONAL INSURANCE COMPANY
Versus
SUNILKUMAR DHIRAJLAL MANIYAR & 3 other(s)
==========================================================
Appearance:
DR RUSHANG MEHTA for MR DAKSHESH MEHTA(2430) for the
Appellant(s) No. 1
MR MAULIK SONI for MR NK MAJMUDAR(430) for the Defendant(s) No. 1
MR SUNIL B PARIKH for the Insurance Company
RULE SERVED(64) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 11
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C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
Date : 07/12/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 1.9.2007 passed by
the Motor Accident Claims Tribunal (Main),
Anand in MACP nos.5383/06, 5307/06, 5385/06
and 5514/06, the appellant-insurance Company
has preferred these appeals under Section 173
of the Motor Vehicles Act, 1988 (hereinafter
referred to as "the Act").
2. Heard Dr. Rushang Mehta, learned advocate for
the appellant in all the appeals, Mr. Maulik
Soni, learned advocate for the original
claimants in all the appeals and Mr. Sunil B.
Parikh, learned advocate for the other
insurance Company, namely, New India Assurance
Company Ltd. in First Appeal no.1781/09.
3. Following facts emerge from the record of the
appeal:-
3.1 That the accident took place on 22.12.2001. It
is the case of the original claimants that
they were coming from Bhavnagar to Vadodara in
a Maruti Car bearing registration no. GJ-6 AB-
7547. It is the case of the original claimants
that when the said Maruti Car reached the
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
place of accident, one truck bearing
registration no. GJ-6 U-8472, came from
opposite direction being driven in a rash and
negligent manner and dashed with Maruti Car,
as a result of which, Minalben received
serious injuries and succumb to the same
during the treatment in Shree Krishna Hospital
at Karamsad while the other claimants
sustained serious and simple injuries on their
persons. It is the case of the original
claimants that thus, in MACP nos. 5383/06,
5385/06, 5307/06 and 5514/06, the original
claimants claimed compensation of
Rs.75,00,000/-, Rs.20,00,000/-, Rs.50,000/-
and Rs.1,50,000/- respectively.
3.2 In MACP no.5383/06, the claimant no.1 was
examined at Exh.30. The original claimants
also relied upon plethora of documentary
evidences. It is the case of the original
claimants that the deceased was holding MBBS
degree and was rendering honourary service in
Amrut Clinic and was earning Rs.5,000/- per
month and also doing private practice in Shrey
Hospital and was earning Rs.3,00,000/- per
year. The Tribunal, after taking into
consideration the income-tax returns of three
years, determined an amount of Rs.80,000/- per
annum towards loss of income. The Tribunal
also awarded Rs.10,000/- towards loss of
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
consortium to claimant no.1, Rs.5,000/-
towards loss of love and affection to claimant
no.2 and Rs.5,000/- towards funeral expenses
and after applying multiplier of 14, awarded
total compensation of Rs.11,20,000/- along
with 9% interest per annum with proportionate
costs and interest from the date of filing of
the claim petition till its realization.
3.3 In MACP no.5307/06, it is the case of the
original claimant that minor son - Malhar of
the original claimant sustained simple
injuries and therefore, the Tribunal has
awarded lumpsum compensation of Rs.5,000/-
along with 9% interest per annum with
proportionate costs and interest from the date
of filing of the claim petition till its
realization.
3.4 In MACP no.5385/06, it is the case of the
original claimant that the claimant was
holding MBBS and MD degree and rendering
honourary service in Vasantyogi Devi Hospital
and was earning Rs.12,000/- per month and also
running a Shrey Hospital and was earning
Rs.10,00,000/- per annum. The Tribunal, after
taking into consideration the income-tax
returns of three years, determined an amount
of Rs.1,50,000/- per annum towards loss of
income. The Tribunal, considering 18%
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
disability (18% of Rs.1,50,000/-) as a whole,
determined Rs.27,000/- towards loss of income
and considering age of the applicant of 34
years, adopted multiplier of 13 and thus,
awarded an amount of Rs.3,51,000/- towards
loss of income. The Tribunal also awarded
Rs.10,000/- towards pain, shock and suffering,
Rs.5,000/- towards attendant charges,
Rs.5,000/- towards special diet, Rs.3,000/-
towards conveyance charges, Rs.47,250/-
towards medical expenses and Rs.12,500/-
towards actual loss of income and thus,
awarded total compensation of Rs.4,33,800/-
along with 9% interest per annum with
proportionate costs and interest from the date
of filing of the claim petition till its
realization.
3.5 In MACP no.5514/06, it is the case of the
original claimant that he was doing
agriculture and business of fisheries and used
to earn Rs.5,000/- per month. The Tribunal
assessed the notional income at Rs.18,000/-
per annum. The Tribunal, considering 10%
disability (10% of Rs.1,800/-) as a whole and
considering age of the applicant of 45 years,
adopted multiplier of 12 and determined an
amount of Rs.21,600/- towards loss of future
income. The Tribunal also awarded Rs.5,000/-
towards pain, shock and suffering, Rs.5,000/-
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
towards attendant charges, Rs.2,000/- towards
special diet, Rs.5,000/- towards conveyance
charges, Rs.5,000/- towards medical expenses
and Rs.1,500/- towards actual loss of income,
and thus, awarded total compensation of
Rs.45,100/- along with 9% interest per annum
with proportionate costs and interest from the
date of filing of the claim petition till its
realization. Being aggrieved by the same, the
appellant-insurance Company has preferred
these appeals.
4. Dr. Rushang Mehta, learned advocate for the
appellant - insurance Company has contended
that the very question of involvement of the
vehicle i.e. truck is doubtful. Dr. Mehta
invited attention of this Court to the claim
petition filed by the respondents - original
claimants and submitted that in the claim
petition itself, the proof of the vehicle
mentioned is GJ-6 U-8472, whereas the truck
insured by the appellant - insurance Company
bears registration no. GJ-6 U-8474. On that
ground, it was contended by Dr. Mehta that the
vehicle has been wrongly considered and the
truck was never an offending vehicle in the
accident. Dr. Mehta further contended that the
Tribunal, while considering the aspect of
negligence, has wrongly held the driver of the
truck as 100% negligence. Dr. Mehta also made
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
an attempt to contend that the quantum as
calculated by the Tribunal in these appeals is
on other side and therefore, contended that
all the appeals be allowed and the impugned
judgment and award be modified.
5. Per contra, Mr. Maulik Soni, learned advocate
for the respondents - original claimants has
opposed the appeals. Mr. Soni contended that
though there was a typographical error in
mentioning the vehicle number in claim
petition at Exh.1, the fact remains that all
other evidence on record clearly indicate that
it was a truck bearing registration no. GJ-6
U-8474 involved in the accident. Mr. Soni
further contended that in the present
accident, the original claimants were also
affected, for which, MACP no.2879/02 was filed
before the Motor Accident Claims Tribunal,
Kheda at Nadiad and MACP nos.310 and 311/04
were filed before Motor Accident Claims
Tribunal, Ahmedabad (Rural). Mr. Soni also
contended that in both these claim petitions,
the appellant - insurance Company did not
raise any issue of involvement of the vehicle
and therefore, now the said question cannot be
permitted to be raised. Mr. Soni further
contended that the aspect of negligence
decided by the Motor Accident Claims Tribunal,
Ahmedabad in MACP nos.310 and 311/04 would not
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
operate as a bar of res judi cata as neither
of the parties have been brought on record
before the Motor Accident Claims Tribunal,
Ahmedabad. The fact that the aspect of
negligence has already been decided earlier by
Motor Accident Claims Tribunal, Kheda at
Nadiad in MACP No.2879/02. According to Mr.
Soni, the said contention has no merit as far
as the quantum in each of the claim petitions
is concerned. On the contrary, considering the
age of the deceased - Minalben being 35 years,
the original claimants would be entitled to
higher multiplier than what has been granted.
It was also contended that the original
claimants would be entitled to further
compensation towards consortium. However, Mr.
Soni conceded that the original claimants have
not preferred any appeal. On the aforesaid
grounds, it was contended that the appeals,
being merit-less, deserve to be dismissed.
6. Mr. Sunil B. Parikh, learned advocate for the
other insurance Company in First Appeal
no.1781/09, contended that in fact, the very
insurance Company has already been deleted in
other 3 claim petitions and therefore, Mr.
Parikh submitted that this Court may pass
appropriate orders.
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
7. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
8. We have perused the original record and
proceedings and have extensively gone through
the observations made by the Tribunal. As far
as the aspect of involvement is concerned as
pointed out by Mr. Soni, learned advocate for
the original claimants, no rebuttal is coming
forth. The fact remains that Motor Accident
Claim Petitions relating to the same accident
were decided by Motor Accident Claims
Tribunals, Ahmedabad and Kheda at Nadiad,
wherein the issue of involvement of the truck
was not raised. On perusal of the claim
petitions, it is found that the number
mentioned is GJ-6 U-8472. However, the record
indicates that in the charge-sheet, the number
mentioned is GJ-6 U-8474, which was a truck in
question. In totality of facts, the said
contention was not raised in the earlier claim
petitions in other Tribunals. The Panchnama
also mentioned name of the same vehicle being
GJ-6 U-8474 and it is clearly mentioned to be
the truck even in the charge-sheet. We find
that the same number is there. Upon
reappreciation of the evidence on record, the
contention as regards non-involvement of the
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
truck deserves to be negatived though raised
in the first batch of claim petitions.
9. As far as the negligence is concerned, only
because the Motor Accident Claims Tribunal,
Ahmedabad has come to the conclusion that the
driver of the truck involved in the accident
is negligent only to the extent of 60%, in
facts of this case, the same would not apply
as res judi cata. We find that the Tribunal
has recorded clear finding on the negligence.
Furthermore, the Motor Accident Claims
Tribunal, Ahmedabad was not aware that the
earlier claim petitions have been decided and
therefore, the contention as regards the
negligence does not bear any merit. As far as
the quantum is concerned, Mr. Soni has
correctly contended that on the contrary, the
same is liable to be enhanced in view of the
judgment of the Hon'ble Apex Court in the case
of Sarla Verma Vs. Delhi Transport Corporation
& Anr., (2009) 6 SCC 121. However, as there is
no appeal filed by the original claimants, we
do not intend to deal with the same further.
We find that even the age of the deceased and
the insured would entail higher multiplier
than what has been granted by the Tribunal. In
totality of facts therefore, no reduction in
the compensation awarded is called for on all
the grounds raised by Mr. Mehta. The appeals
C/FA/1778/2009 JUDGMENT DATED: 07/12/2021
fail and are hereby dismissed. However, there
shall be no order as to costs in this appeal.
Registry is directed to remit the record and
proceedings back to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
Maulik
