Gujarat High Court
United India Insurance Company ... vs Jugal Kishor Daudas Moondra on 13 December, 2021
Bench: R.M.Chhaya
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 492 of 2009
With
R/FIRST APPEAL NO. 493 of 2009
With
R/FIRST APPEAL NO. 494 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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UNITED INDIA INSURANCE COMPANY LIMITED
Versus
JUGAL KISHOR DAUDAS MOONDRA & 4 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 2,3,4
RULE UNSERVED(68) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
1. The appellant (United India Insurance Company Limited) has
filed these appeals challenging the common judgment and award
dated 10.4.2007 passed by the Motor Accident Claims Tribunal
(Aux.), Fast Track Court No.2, Jamnagar in MACP Nos. 826/2000,
827/2000 and 828/2000.
2. First Appeal No.492 of 2009 arises out of MACP No.826 of
2000, First Appeal No.493 of 2009 arises out of MACP No.827 of
2000 and First Appeal No.494 of 2009 arises out of MACP No.828
of 2000. Since all these appeals are arising out of common
judgment and award dated 10.04.2007, having common set of
evidence, they are heard together and decided by this common
judgment.
3. The following facts emerge from the record of these appeals:
3.1. All the claim petitions were filed pursuant to the accident
which occurred on 28.7.1999 near village Viravadar on Talaja-
Bhavnagar Road, between a Mini Luxury Bus No. GJ-4T-9555 and
a Maruti Esteem Car No. GJ-16-C-4010 at about 12.15 p.m. The
record shows that all three claimants were traveling in the said
Maruti Esteem Car at the relevant time and it was driven by
deceased Lalsinh Lakhsinh with moderate speed, on correct side of
the road with extra care and caution. When they reached village
Viravadar, the offending Mini Luxury Bus came from the opposite
direction in high speed, in a negligent manner and dashed with the
car by coming on the wrong side of the road. It was the case of
the claimants that due to the said impact, the car was totally
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
crushed and thrown off the road and the driver of the car died on
the spot and the claimants sustained serious injuries all over their
bodies. For the said accident the claimants preferred above referred
claimed petitions u/s 166 of the Act. MACP No. 826 of 2000 was
filed by Shri Jugal Kishor Moondra claiming compensation of
Rs.35,00,000/-. MACP No. 827 of 2000 was filed by Dr. Surana
claiming compensation of Rs. 6,50,000/- and MACP No. 828 of
2000 was filed by Smt. Ushaben claiming compensation of Rs
2,25,000/-. It was the case in claim petitions that the said accident
occurred on account of sole negligence on the part of the driver of
the Mini Luxury Bus. The Tribunal after hearing the parties and
considering the evidence on record in relation to each petitions,
decided the claim petitions under judgement award dated
10.04.2007.
3.2. In relation to negligence for all three claim petitions, the
Tribunal held opponent No.1-(driver of Mini Luxury Bus) as 80%
negligent and driver of Maruti Esteem Car as 20% negligent.
3.3. In relation to compensation, the Tribunal awarded as under:-
MACP No.826/2000
Future Loss of income Rs.26,11,200/-
Medical Expenses Rs.2,35,000/-
Pain, Shock and Sufferings Rs.20,000/-
Rich diet, transportation charges Rs.25,000/-
and attendant charges
Total Rs.28,91,200/-
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
MACP No.827/2000
Future Loss of income Rs.2,64,000/-
Medical Expenses Rs.1,10,000/-
Pain, Shock and Sufferings Rs.20,000/-
Rich diet, transportation charges Rs.15,000/-
and attendant charges
Total Rs.4,09,000/-
MACP No.828/2000
Future Loss of income Rs.59,400/-
Medical Expenses Rs.1,00,000/-
Pain, Shock and Sufferings Rs.20,000/-
Rich diet, transportation charges Rs.15,000/-
and attendant charges
Actual Loss of income Rs. 9,000/-
Total Rs.2,03,400/-
4. Challenging the said judgment and award, present appeals are
filed by the insurance company as appellant on the ground of
negligence and quantum. The other grounds stated in the appeals
are not pressed.
5. We have heard learned advocate Mr. Maulik Shelat for the
appellant (United Insurance Co. Ltd.) and Mr. Dakshesh Mehta,
learned advocate for Respondent No.5 (National Insurance Co. Ltd.).
Though served, none appeared for Respondents No.1 to 4 (original
claimants). Considering the issue involved and in absence of any
challenge to the judgment and award by the claimants, we deem it
appropriate to decide the appeals in absence of the claimants.
6. Mr. Maulik Shelat, learned advocate appearing for the
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
appellant contended that the Tribunal has committed an error in
holding the driver of the Mini Luxury Bus as 80% negligent.
Relying upon panchnama at Exhibit-43, he contended that the
damage caused to the front portion of Mini Bus indicated the speed
of the Maruti Esteem Car. Further the road was 8-10 feet broad
and this being head on collusion, the driver of the Maruti Esteem
Car was equally negligent for the occurrence of the said accident.
He therefore submitted to hold drivers of both the vehicles
equally negligent (50%-50%) for the occurrence of accident.
6.1. In relation to quantum, he contended that in all three
appeals, the compensation awarded by the Tribunal is contrary to
the evidence on record and therefore on higher side. Referring to
the injury caused, other medical evidence and disability certificate,
he submitted to reduce the quantum awarded by the Tribunal. He
thus submitted to allow the appeals as prayed for.
7. Per contra, Mr. Dakshesh Mehta, learned advocate for
Respondent No.5 contended that the Tribunal has correctly
appreciated the evidence on record and the appeals being meritless
may kindly be dismissed.
8. No other and further submissions/contentions have been made
by learned advocates for the respective parties.
9. We have perused the record and proceedings and other
evidence on record. For negligence, the Tribunal has observed as
under:
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
"On perusal of the panchnama at Exh.43, it is
found that there is much damage in the motor car,
whereas, the front portion of the mini luxury bus
as been broken, but no substantial damage is found
on the luxury bus. The said panchnama is not
properly prepared and there is no mention as to
the exact location of the happening of the accident.
As such, the persons who were injured in the
accident are the best persons who can say about
the happening of the accident. Therefore, on
perusal of the entire oral evidence of the
applicants, it is clearly found that the two vehicles
have been collided with each other and it is a case
of head on collision. Therefore, considering the
entire evidence on record, it is found that both the
drivers were somewhat negligent in driving their
vehicles. As such, the contributory negligence of
each driver is required to be assessed. Considering
the entire evidence on record, the negligence of the
bus driver could be assessed at the tune of 80%.
Whereas, 20% could be attributed to the car driver.
Now, it is found from the copy of insurance policy
at Exh. 107 that the opponent no.5 the National
Insurance co. has accepted the premium for
passengers for the car Maruti Esteem which was
involved in the accident, wherein all the 3
claimants were travelling in and the bus was
insured with the United India Insurance Co. as per
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
receipt at Exh.106. Hence, the opponent no.1, 2
and 3 are liable to pay compensation to the tune
of 80%. Whereas, opponent No.4 and 5 are liable
to pay compensation to the tune of 20% to each
claimant."
10. Upon re-appreciation of evidence, we are of the opinion that
the Tribunal has correctly analysed the evidence on record. From
the panchnama and the FIR it is clear that it was a case of "head
on" collision. Obviously being a smaller vehicle, much damage was
caused to the motor car and damage was caused only on the front
portion of mini Luxury Bus. Moreover, FIR was lodged against the
bus driver and no cross complaint was filed by the bus driver
against the car driver. Therefore, in our considered opinion, the
Tribunal has correctly held that the driver of the bus was negligent
to the extent of 80% and 20% negligence is attributed to the car
driver. Therefore, we are not in agreement with the contention of
learned advocate for the Appellant that driver of Maruti Esteem Car
was equally negligent.
11. For Quantum, also upon re-appreciation of evidence, we are
of the opinion that the Tribunal has correctly appreciated the
evidence on record for determination of future loss of income and
compensation under other conventional heads.
For Claim petition No. 826 of 2000:
The Tribunal relying upon form No.16 of I.T. Act at Exhibit-71 for
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
the period 1.4.1999 to 31.3.2000 (FY 1999-2000) considered the
gross salary of claimant Shri Jugal Kishor Moondra of Rs.8,07,401/-
p.a. and, therefore, the monthly salary was assessed at a round
figure of Rs.68000/- (Rs.8,07,401 divided by 12). Considering the
disability of 40% the body as a whole, monthly loss was
calculated at Rs.27,200/- and therefore, yearly the amount would
come to Rs.3,26,400/-. The claimant was aged 56 years at the time
of accident; multiplier of 8 was made applicable. Thus, for future
loss of income the Tribunal calculated at Rs.26,11,200/-. For
medical treatment Rs.2,35,000/- was awarded. Rs.25,000/- was
awarded for attendant charges, rich diet and transportation charges.
Considering the injury and the period of hospitalization Rs.20,000/-
was awarded for Pain, Shock and Sufferings. The Tribunal also
considered that during the period of medical treatment, the salary
of the claimant was not deducted by his employer and therefore,
there was no actual loss of income to the claimant for that period.
Thus, the Tribunal awarded total compensation of Rs.28,91,200/-
with 7.5% interest from the date of claim petition till realization.
Out of the said amount, 80% was directed to be paid by opponent
Nos. 1, 2 and 3 jointly and severely and remaining 20% by
opponent Nos. 4 and 5 jointly and severely. Thus, in our opinion,
the Tribunal has correctly appreciated the evidence on record and
no interference is called for.
For Claim petition No. 827 of 2000:
The Tribunal relying upon salary certificate assessed the salary of
the claimant at Rs.20,000/- and considering 10% permanent
disability the body as whole Rs. 2000/- (Rs.20,000x10%) was added.
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
Therefore, the total amount would come to Rs. 24,000/-. As the
claimant was 51 years old at the time of accident ,multiplier of 11
was applied and thus the future loss of income was calculated at
Rs.2,64,000/-. As no salary was deducted by the employer
company during the treatment period of claimant, there was no
actual loss of income to the claimant. For medical treatment as per
Exh.50 Rs.1,10,000/- was awarded. Considering the injury and
treatment taken, Rs.15,000/- was awarded for attendant charges and
special diet. For pain, shock and sufferings, Rs.20,000/- was
awarded. Thus, the claimant Dr. Surana was awarded total
compensation of Rs.4,09,000/-. In our opinion, the Tribunal has
awarded the total compensation of Rs.4,09,000/- based on the
evidence on record as referred to above and no interference is
called for.
For Claim Petition No.828 of 2000
As the claimant Ushaben being a housewife, Rs.3,000/-per month
was considered as notional income. Considering the permanent
disability of 15% body as a whole, the Tribunal granted monthly
loss of income to Rs.450/- and yearly of Rs.5400/-. As the
claimant was 50 years of age at the time of accident, multiplier of
11 was applied and on that basis the future loss of income was
calculated of Rs.59,400/-. Relying upon the evidence in relation to
medical treatment, medical expenses of Rs.1,00,000/- was awarded.
As she was bed ridden for three months, actual loss of income of
Rs.9000/- was awarded. For pain, shock and sufferings Rs.20,000/-
was awarded. For diet, transportation and attendant charges, Rs.
15000/- was awarded. Thus, total compensation of Rs. 2,03,400/-
C/FA/492/2009 JUDGMENT DATED: 13/12/2021
was awarded to claimant Ushaben. Thus, in our opinion, the
Tribunal has correctly appreciated the evidence on record and no
interference is called for.
12. In view of the above findings of the Tribunal, in our opinion
the judgement and award dated 10.4.2007 is based on proper
appreciation of oral and documentary evidence on record and in
consonance with the decisions of Apex Court. The compensation
awarded is just and proper. Therefore, challenge to the judgement
and award on the ground of negligence and quantum of
compensation does not merit acceptance. The appeals are therefore
dismissed with no order as to costs. Record and proceedings be
transmitted back to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
