National Insurance Company vs Ranjitbhai Virambhai Herma
2021 Latest Caselaw 18563 Guj

     C/FA/4813/2010                             JUDGMENT DATED: 20/12/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4813 of 2010
                                    With
                      R/CROSS OBJECTION NO. 59 of 2012

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                                   sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT                              sd/-

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1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy of            NO
      the judgment ?

4     Whether this case involves a substantial question of            NO
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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                    NATIONAL INSURANCE COMPANY
                                Versus
                RANJITBHAI VIRAMBHAI HERMA & 1 other(s)
==============================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR JIGAR P RAVAL(2008) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                       Date : 20/12/2021
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 18.02.2010 passed in MACP No.635 of 1999 by the Motor Accident Claims Tribunal (Main), Rajkot, the Insurance Company has preferred this

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appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

The original claimant has also filed Cross Objection against the impugned judgment and award dated 18.02.2010 passed in MACP No.635 of 1999 by the Motor Accident Claims Tribunal (Main), Rajkot.

2.0. Following facts emerge from the record of this appeal:

2.1. That on 10.11.1998 the original claimant was driving his Maruti Car bearing registration No.GJ-3-E-1593 and going to Ahmedabad for his business purpose. It is the case of the original claimant that the Maruti Car was being driven in moderate speed and on the correct side of the road and when Maruti Car reached the place of occurrence, at that time, driver of Motor Car bearing registration No.GJB- 7389 came in a rash and negligent manner, endangering human life and on wrong side, dashed with the Maruti Car of the original claimant , because of which, original claimant sustained serious injuries on vital parts of body. The original claimant preferred claim petition before the Tribunal and prayed for compensation of Rs.25,00,000/-. The Tribunal after considering the evidence on record, partly allowed the claim petition and awarded a sum of Rs.2,28,437/- with 9% interest from the date of claim petition till its realization. Being aggrieved and dissatisfied with the same, the appellant Insurance Company has preferred present First Appeal and original claimant has

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also preferred Cross Objection.

3.0. Heard Dr. Mr. Rushang Mehta, learned advocate for the appellant Insurance Company and Mr. Jigar Raval, learned advocate for the original claimant in appeal as well Cross Objection. We have perused the original record and proceedings of the case.

4.0. Dr.Mr. Mehta, learned advocate for the appellant has raised following contentions:

4.1. That the Tribunal has not considered the aspect of liability and the same is considered without considering evidence on record.

4.2. It was contended that there is no loss of income and after the accident even according to respondent - original claimant his income has increased and therefore, the respondent claimant is not entitled any compensation under the head of future of loss of income as there is no loss and similarly, the respondent claimant is not entitled to any compensation under the head of actual loss of income. On the aforesaid grounds, it was contended by Dr. Mr. Mehta that appeal be allowed and the impugned judgment and award be modified. Dr. Mr. Mehta further contended that considering the evidence on record the Tribunal has rightly awarded compensation under the other heads viz. Pain, shock and suffer and also granted actual medical

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reimbursement which was proved by the appellant and therefore, Cross Objection is ultimately misconceived and meritless and same deserves to be dismissed.

5.0. Per contra, Mr. Jigar Raval, learned advocate for the original claimant has supported the impugned judgment and award passed by the Tribunal. Mr. Raval further contended that though in the deposition it is stated that instead of Rs.20,000/-, the respondent claimant has earned Rs.25000/- after accident. The fact remains that because of acquiring permanent disability on the body as a whole to the extent of 35% flow of the income has decreased and according to Mr. Raval original claimant would have earned much more if the injuries would not have been sustained in the injuries. Mr. Raval contended that on the contrary the Tribunal has relied upon the medical evidence on record and has discarded the fact that the respondent claimant had to undergo extensive treatment for almost two years and had undergone three operation during the treatment. According to Mr. Raval the learned Tribunal has erred in awarding meager amount of Rs.20000/- under the head of pain, shock and suffering and Rs.10,000/- under the head of special diet and transportation, which deserves to be enhanced as prayed for in the Cross Objection. Mr. Raval contended that the appeal filed by the Insurance Company being meritless, deserves to be dismissed.

6.0. No other and further submissions/ contentions have

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been raised by the learned advocates for the respective parties.

7.0. We have considered the submissions made by the learned advocates for the respective parties and also perused the record and proceedings of the case. As far as contention of liability is concerned, as recorded by the Tribunal the appellant Insurance has no evidence to show that to even remotely proved that the Insurance Company has not liable. In addition to that, though the contention was raised, no evidence was adduced, we are of the opinion that the Tribunal has committed no error for deciding the liability of the Insurance Company and hence the contention raised by Dr. Mr. Mehta deserves to be negatived.

7.1. Upon re-appreciation of the evidence on record and considering the oral deposition of the respondent claimant which thus indicated that the income has increased and the injuries have not affected the total income of the respondent claimant. However, at the same time, we find that the Tribunal has ignored the injuries sustained and extensive treatment which was required to be taken by the claimant and has committed an error in awarding a meager amount of Rs.20,000/- under the head of pain, shock and suffering and Rs.10,000/- under the head of special diet and transportation as the record indicates that for two long years, the respondent claimant had to undergo treatment

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and has also been operated thrice. In addition to that, upon re-appreciation of the evidence on record, it also deserves to be recorded that for two years, the respondent claimant could not earn anything and was almost bedridden for such long period.

8.0. Upon re-appreciation of the evidence on record, we are of the opinion that the Tribunal has committed an error in granting meager amount of Rs.20,000/- under the head of pain, shock and suffering and Rs.10,000/- under the head of special diet and transportation. Upon re-appreciation of the evidence on record and in facts of this case, the same would be much higher and compensation towards pain, shock and suffering has to be granted to Rs.1 lakh and special diet has to be Rs.50,000/-. It is an admitted position that the respondent claimant was just 47 years on the date of accident and has acquired 35% permanent disability of the body as a whole which has precluded him from enjoying his right and his future amenities of life. We find that the Tribunal has not granted or considered any compensation under such head. In totality of facts, if this aspects are considered, the net result would be what is granted by the Tribunal is just and adequate compensation. Resultantly, this Court is of the opinion that the amount of Rs.2,28,437/- granted by the Tribunal being just and adequate compensation, no interference is called for. At the same time, the Cross Objections which are mainly based upon the grant of compensation towards pain, shock and

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suffering also does not require any modification in view of the fact that as the Tribunal has awarded just and adequate compensation, we do not think it fit to gran any further compensation. Resultantly, appeal as well as Cross Objection are hereby dismissed and the impugned judgment and award stands confirmed. Thus, the appeal as well as Cross Objection are dismissed. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

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(R.M.CHHAYA,J)

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(MAUNA M. BHATT,J) KAUSHIK J. RATHOD