Gujarat High Court
Iffco Tokio General Ins Co Ltd vs Premji Vishram Panchani on 21 December, 2021
Bench: R.M.Chhaya
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5778 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 5778 of 2019
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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IFFCO TOKIO GENERAL INS CO LTD
Versus
PREMJI VISHRAM PANCHANI
==========================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR ANKIT Y BACHANI(5424) for the Defendant(s) No. 1
NOTICE SERVED(4) 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 : 21/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
1. The present appeal is directed against the
judgment and award dated 19.03.2019 passed by the
Motor Accident Claims Tribunal (Aux), Bhuj-Kachchh in
MACP No. 699 of 2006 under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the
"Act").
2. Heard Ms. Kirti Pathak, learned advocate for the
insurance company and Mr. Ankit Bachani, learned
advocate for the original claimant-respondent no.1.
We have perused the Record and Proceedings of the
Tribunal.
3. With the consent of the learned counsels
appearing for the parties, the appeal is taken up for
its final disposal today.
4. The facts in a nutshell, which has arisen in
this appeal are as under-
4.1 The accident occurred on 19.08.2006 at about
17.30 hrs. It is the case of the original claimants
that while the claimant was coming from Bhuj from
Naranpar on motorcycle bearing registration no. GJ-
12-AG-9997 and when he reached the place of accident,
a Toofan Jeep bearing registration no. GJU-24-9004
came from the other side and dashed with the
motorcycle driven by the claimant. The FIR was
lodged with the jurisdictional police station at
exhibit 39. The claimant examined himself at exhibit
27 and Dr.Abhinav Kotak, Ortho Surgeon's affidavit
was filed by the claimant, however the said witness
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
was not available for cross-examination. The
claimants relied upon documentary evidence such as
Charge-sheet at exhibit 38, FIR at exhibit 39,
panchnama of the place of occurrence at exhibit 40,
Copy of MLC at exhibit 41, Disability Certificate at
exhibit 42, Medical bills at exhibit 43, insurance
policy of Toofan Jeep at Mark 7/5.
4.2 The Tribunal came to the conclusion that the
driver of the Toofan Jeep was 100% negligent.
Considering the age of the claimant at 26 years,
determined the income of the deceased at Rs.3,000/-
per month as no evidence was adduced before the
Tribunal. As far as permanent disability is
concerned, the Tribunal just narrated what is stated
in disability certificate at exhibit 42 and
determined the permanent disability of the body as a
whole at 40% while partly allowing the claim petition
and awarded compensation as under -
Future loss of income - Rs.2,44,800/-
Medical expenses - Rs.3,71,500/-
Pain, shock and suffing- Rs. 20,000/-
Special diet, attendant
and transportation - Rs. 15,000/-
Actual Loss - Rs. 9,000/-
-------------
Total Rs.6,60,300/-
=============
Feeling aggrieved by the same, the insurance
company has preferred this appeal.
5. Ms. Pathak, learned counsel appearing for the
appellant has contended that the Tribunal has erred
in considering the negligence of the driver of Toofan
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
Jeep at 100%. According to Ms. Pathak, the Tribunal
has misread the evidence of panchnama as well as FIR
and more particularly has failed to consider how the
accident has occurred. Ms. Pathak further contended
that the Doctor who had filed an affidavit was not
available for cross-examination and therefore, no
reliance can be placed on the affidavit of the Doctor
for which no opportunity was given to the insurance
company to cross-examine such witness. Ms. Pathak
also contended that the respondent-original claimant
has failed to prove the disability, however, the
Tribunal has wrongly relied upon the disability
certificate at exhibit 42 and straightway considered
and counted disability of the body as a whole to the
extent of 40%. Ms. Pathak further contended that
there was no permit with the Toofan Jeep to ply the
vehicle and therefore, the insurance company cannot
be made liable. Ms. Pathak also contended that
considering the fact that the accident is of the year
2006, the Tribunal has wrongly exercised discretion
in favour of the claimant and has granted 9% interest
which deserves to be reduced. On the aforesaid
grounds, Ms. Pathak contended that the appeal be
allowed as prayed for.
6. Per contra, Mr.Ankit Bachani, learned counsel
appearing for the claimant has opposed this appeal.
Referring to the panchnama of the place of occurrence
at exhibit 40 and charge-sheet at exhibit 38, it was
contended by Mr. Bachani that the findings arrived at
by the Tribunal to the effect that the driver of
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
Toofan Jeep was solely negligent is on correct
appreciation of the evidence on record. Mr. Bachani
further submitted that the appellant-insurance
company has not adduced any evidence to show that the
Toofan Jeep had no valid permit. Mr. Bachani heavily
relied upon the disability certificate at exhibit 42
and contended that considering the serious injuries
sustained by the original claimant, the assessment of
disability even in absence of any cross-examination
of Doctor who had given disability certificate is
rightly relied upon by the Tribunal. According to
Mr. Bachani, such finding is based on correct reading
of the Certificate at exhibit 42. Mr. Bachani
contended that the grant of interest is always the
discretion of the Tribunal, which has been rightly
exercised and no interference is called for. Mr.
Bachani therefore contended that the appeal is
meritless and deserves to be dismissed.
7. No other or further submissions have been made
by the learned counsel appearing for the respective
parties.
8. Upon re-appreciation of the evidence on record
and more particularly the panchnama at exhibit 40, it
clearly appears that the driver of the Toofan Jeep
had recklessly driven the vehicle, which resulted
into the accident. It is also a matter of fact that
the appellant-insurance company has not examined the
driver, though available and the Tribunal has rightly
drawn adverse inference against the driver. It is
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
also worthwhile to note that the charge-sheet at
exhibit 38 clearly establishes the fact tat the
driver of Toofan Jeep was solely negligent. In view
of the aforesaid, the contention raised by Ms.
Pathak, learned counsel appearing for the appellant-
insurance company on negligence deserves to be
negatived. Similarly, upon re-appreciation of the
evidence on record, we find that the appellant-
insurance company has not adduced any evidence about
invalid permit and in absence of that, such a
contention cannot be accepted. As far as the
contention as regards rate of interest is concerned,
this Court is of the opinion that the Tribunal has
rightly exercise its discretion and no interference
is called for. The last contention which has been
raised by the learned counsel for the appellant is
with regard to disability. On re-appreciation of the
evidence on record, it deserves to be noted that the
accident took place on 19.08.2006 and the affidavit
of Dr.Abhinav Kotak is relied upon by the claimant.
Upon bare perusal of the affidavit, it transpires
that it is nothing but narration of the certificate.
Moreover, it is an admitted position that the said
doctor did not make himself available for cross-
examination. Upon re-appreciation of the evidence in
form of certificate at exhibit 42, this Court finds
that he is not the Doctor who had treated the
Respondent claimant. The accident occurred on
19.08.2006 whereas he was physically examined on
23.02.2016 for the purpose of determining the
disability, that too at the instance of the
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
respondent-claimant. The relevant part of the said
certificate reads as under -
"Considering the above clinical findings this is
certificate that this patient is having
permanent physical disability of Right lower
limb by 41%, left lower limb by 29%, chest
function by 12%."
Thus, the disability which is stated in the
certificate is not for body as a whole, but limbs
i.e. right limb, left limb and chest function. The
findings given by the Tribunal is nothing but total
of limb disability which is mentioned in the
certificate. Upon re-appreciation of the same, we
find that the Tribunal has committed an obvious error
in considering the disability. While considering the
permanent disability of the body as a whole, mere
arithmetic calculation of the limb disability is not
to be undertaken. The Casler's principle if applied
would be 1/2 of such limb disability. Though the
Tribunal has referred to the book of Dr. Zala, the
Tribunal has committed an obvious error in
considering the disability and upon re-appreciation
of the same, we fix the same at 20% of the permanent
disability of the body as a whole.
9. Having come to the aforesaid conclusion and
keeping the income as it is, the claimant would be
entitled to compensation towards future loss of
income as under -
Rs.36,000/- X 17 X 20% (permanent disability) =
Rs. 1,22,400/-
C/FA/5778/2019 JUDGMENT DATED: 21/12/2021
The compensation towards pain, shock and
suffering is also proper as the respondent-claimant
had to undergo hospitalisation for few days only.
Thus, the claimant would be entitled to total
compensation as under -
Future loss of income - Rs.1,22,400/-
Medical expenses - Rs.3,71,500/-
Pain, shock and suffering- Rs. 20,000/-
Special diet, attendant
and transporation - Rs. 15,000/-
Actual loss - Rs. 9,000/-
-------------
Total compensation Rs.5,37,900/-
=============
10. Thus, the original claimant would be entitled to
Rs. 5,37,900/- as total compensation. The appeal is
thus partly allowed. As the Tribunal has awarded
compensation of Rs. 6,60,300/-, the appellant-
insurance company shall be entitled to refund of
Rs.1,22,400/- with proportionate cost and interest.
The Tribunal shall refund the said amount to the
appellant insurance company forthwith. Record and
proceedings be transmitted back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI,,
