Chola Mandalam M.S.General ... vs Bharatbhai K Gamar
2021 Latest Caselaw 18652 Guj

      C/FA/4911/2019                             JUDGMENT DATED: 22/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4911 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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      CHOLA MANDALAM M.S.GENERAL INSURANCE COMPANY LTD
                            Versus
                    BHARATBHAI K GAMAR
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 6
MR PRAVIN P PANCHAL(2059) for the Defendant(s) No. 3
MR. ARCHIT P JANI(7304) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1,2,4,5,7
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 22/12/2021
                            ORAL JUDGMENT

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

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 11.12.2018 passed by the Motor Accident Claims Tribunal (Aux), Banaskantha at Palanpur in MACP no.21/14, the appellant-insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal:-

2.1 That the accident took place on 30.12.2013.

It is the case of the original claimants that the deceased was going to Sundhamata from Chadottar by driving his motorcycle bearing registration no. GJ-8 AQ-659 and was passing through Ghanta-Kapasiya road. It is further the case of the original claimants that when he reached the scene of occurrence, a truck bearing registration no. GJ-08 Z-5720 being driven in a rash and negligent manner came from other side and dashed with the motorcycle of the deceased by coming into wrong side. The present claim petition was filed under Section 166 of the Act and claimed compensation of Rs.30,09,500/-.

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

2.2 It was the case of the original claimants that the deceased was 42 years old on the date of the accident and was engaged in the business of cement and had a cement agency and was also doing agriculture as well as animal husbandry. It was the case of the original claimants that the income of the deceased was Rs.25,000/- per month. The original claimants relied upon the oral testimony of the wife of the deceased - Sangitaben at Exh.16 and has also relied upon the documentary evidence, such as, copy of permit of the truck Mark 4/7, copy of the complaint Exh.19, copy of the Panchnama Exh.20, copy of insurance policy of the truck Exh.21, copy of driving license of the original opponent no.1 Exh.22, copy of registration certificate of the truck Exh.23, copy of the postmortem note of the deceased Exh.24, copy of village form no.8-A Exh.25, copy of the license of hotel of the deceased Exh.26 and copy of the inquest Panchnama Exh.27. The Tribunal, considering the Panchnama at Exh.20, came to the conclusion that the driver of the truck was solely negligent. Upon reappreciation of the evidence on record, the Tribunal determined the income of the deceased at Rs.9,000/- per month and as the deceased was 42 years old

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

on the date of the accident, after deducting one-fourth towards personal expenses and adding prospective income, applied multiplier of 14 and awarded a sum of Rs.14,17,584/- as compensation under the head of loss of dependency and over and above that, the Tribunal awarded sum of Rs.15,000/- under the head of loss of estate, Rs.15,000/- as funeral expenses, Rs.1,00,000/- as loss of spousal and parental consortium, Rs.50,000/- towards love and affection and thus, awarded total compensation of Rs.15,97,584/- with 9% interest per annum from the date of filing of the claim petition till its realization and being aggrieved by the same, the appellant-insurance Company has preferred this appeal.

3. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant - insurance Company and Mr. Pravin Panchal, learned advocate for the respondents - original claimants. We have also perused the original record and proceedings and with consent of the learned advocates appearing for the respective parties, the appeal is taken up for its final disposal forthwith.

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

4. Mr. Vibhuti Nanavati, learned advocate for the appellant - insurance Company has relied upon the Panchnama at Exh.20. Referring to sub-para 3 of the Panchnama, it was contended by Mr. Nanavati that it is a matter of record that the deceased was proceeding from Palanpur to Sundhamata which is in Rajasthan and therefore, correct side would be that of West, whereas the truck involved in the accident was coming from eastern side. Referring to Paragraph 3 of the Panchnama at Exh.20, it was contended by Mr. Nanavati that the motorcycle was found on the eastern side and therefore, according to Nanavati, the deceased was driving his motorcycle on the wrong side. According to Mr. Nanavati, such crystal clear version of the Panchnama is misread by the Tribunal and upon reappreciation of the evidence on record, this Court may exonerate the appellant - insurance Company as the driver of the motorcycle would be solely negligent. Mr. Nanavati further contended that the Tribunal has wrongly presumed the income of the deceased at Rs.9,000/- per month from all sources as averred by the original claimants before the Tribunal. According to Mr. Nanavati, in absence of any evidence on record, it cannot be presumed that the

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

income of the deceased was Rs.9,000/- per month. On the aforesaid grounds, it was contended by Mr. Nanavati that the appeal requires consideration and the appeal be allowed as prayed for.

5. Per contra, Mr. Pravin Panchal, learned advocate for the respondents - original claimants has supported the impugned judgment and award. Mr. Panchal contended that though the respondents - original claimants have not filed any appeal, the fact remains that the respondents - original claimants, 5 in number, would be entitled to consortium of Rs.40,000/- each. Mr. Panchal further contended that the Tribunal has rightly assessed the income of the deceased at Rs.9,000/- per month as the original claimants could bring on record the evidence to show that he had income from multiple vocations. Referring to the Panchnama at Exh.20, it was contended by Mr. Panchal that the contention as regards the liability on the ground that as per Panchnama, motorcycle was found on the wrong side and therefore, some negligence of the driver of the motorcycle also should be considered is without any basis. According to Mr. Panchal, the Tribunal has rightly appreciated the

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

evidence on record. Mr. Panchal thus contended that the appeal, being merit-less, deserves to be dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. We have thoroughly gone through the Panchnama at Exh.20. What is narrated in the Panchnama is that the motorcycle was found on the eastern side of the dead body. Upon reappreciation of the evidence on record, we find that the version which is now put forward by the learned advocate for the appellant would amount the misreading the Panchnama and rather adding to it which is not permissible. The Panchnama does not say that the motorcycle was being driven on wrong side. In addition to that, the appellant - insurance Company has not examined the driver of the truck even though available and as an afterthought, such defense cannot be permitted to be raised.

8. As far as the quantum is concerned, we find that the Tribunal has appropriately appreciated the evidence on record and even

C/FA/4911/2019 JUDGMENT DATED: 22/12/2021

upon reappreciation of the evidence on record, we find that the income determined at Rs.9,000/- per month is proper, which does not require any interference. On the contrary, we find that all the 5 original claimants would be entitled to consortium, but as the respondents - original claimants have not filed any appeal, the same is not dealt with. On both the counts, the appeal fails and is hereby dismissed. However, there shall be no order as to costs. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) Maulik