Gujarat High Court
Oriental Insurance Co Ltd., ... vs Meghraj Rahaji Malek on 20 January, 2021
Bench: R.M.Chhaya
C/FA/2182/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2182 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
=========================================================
=
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 ?
==========================================================
ORIENTAL INSURANCE CO LTD., REGISTERED OFFICE AT ORIENTAL
Versus
MEGHRAJ RAHAJI MALEK & 2 other(s)
==========================================================
Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
MR Y J PATEL(3985) for the Defendant(s) No. 2,3
MS AMRITA AJMERA(5204) for the Defendant(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 20/01/2021
ORAL JUDGMENT
1. Being aggrieved by the judgment and award dated
06.11.2009 passed by the Motor Accident Claims
Tribunal (Aux), Dhrangadhra at Surendranagar in
MACP No.104 of 2000, the insurance company has
preferred this appeal under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred
to as the "Act").
C/FA/2182/2010 JUDGMENT
2. In a nutshell, as can be culled out from the
record of the appeal, the respondent no.1
original claimant met with an accident on
01.12.1999 at about 10.00 am while he was going
on the public road near High School of
Kharaghoda situated at KharaghodaPatdi road
with his motorcycle bearing registration No. GJ
136206. It is the case of the original
claimant that he was driving his motorcycle very
cautiously and when he reached near the place of
accident, a truck bearing registration No. GJ
13T7426 came from the opposite side being
driven in rash and negligent manner and
excessive speed and dashed with the claimant
because of which he sustained serious injuries.
The respondentoriginal claimant filed the
present claim petition and claimed compensation
of Rs.1,50,000/ under section 166 of the Act.
The original claimant adduced oral evidence at
exhibit 24 and also relied upon the medical
certificate in particular. The Tribunal after
appreciating the fact that there is a consensus
between both the parties as regards the
permanent disability of the body as a whole,
which can be culled out from the medical
certificate at exhibit 34, was pleased to partly
allow the claim petition by applying the
multiplier of 17 and awarded a sum of
Rs.91,129/ with interest at the rate of 9% p.a.
from the filing of the claim petition till its
realisation. Being aggrieved by the same, the
C/FA/2182/2010 JUDGMENT
insurance company has filed the present appeal.
3. Heard Ms.Karuna Rehvar, learned advocate for the
appellant, Ms. Amrita Ajmera, learned advocate
for respondent no.1original claimant and Mr.
Y.J. Patel, learned advocate for respondents
no.2 and 3.
4. Ms. Rehvar, learned advocate for the appellant
has raised the following two contentions
1) That the Tribunal has misread the certificate
at exhibit 34 and has wrongly come to the
conclusion that the total disability of the
body as a whole is 7%.
2) Relying upon the judgment of this Court in the
case of State of Gujarat vs. Somabhai
Dhurabhai Sindhava & Ors. reported in 1993 (2)
GLR 1043, it was contended that the
respondentoriginal claimant was government
servant and therefore, the Tribunal ought to
have taken multiplier of 5 instead of 17.
On the aforesaid two grounds, it was contended
that the appeal be allowed and the award be
modified accordingly.
5. Ms. Ajmera, learned advocate appearing for
respondent no.1original claimant contended that
the appeal is meritless and the Tribunal has
rightly appreciated the evidence on record. Ms.
Ajmera further contended that 7% disability
C/FA/2182/2010 JUDGMENT
decided by the Tribunal is based upon the
consensus arrived at between the parties and the
insurance company cannot now take uturn and
argue to the contrary. According to Ms. Ajmera,
the original claimant was not a Government
servant but was working as daily wager. Ms.
Ajmera has further relied upon the salary slip
of the original claimant at exhibit 33 and
submitted that as per the salary slip, the post
which was occupied by respondent no.1 was that
of daily wager as lineman on fixed salary.
Therefore, he was not a Government servant as
contended by the appellant.
6. Mr. Yogesh Patel, learned advocate appearing for
the respondents no.2 and 3 contended that this
Court may pass appropriate order.
7. No other or further submissions have been made
by the learned counsel appearing for the
parties.
8. Upon perusal of the paper book as well as
original record & proceedings, it would be
appropriate to refer to the medical certificate
at exhibit 34. There is a clearcut endorsement
on the said document to the effect that 7%
permanent disability is accepted and have no
objection (translated from gujarati to english).
Thus, having agreed before the Tribunal, the
appellant now cannot be permitted to argue
contrary. On the contrary, the another
C/FA/2182/2010 JUDGMENT
certificate at exhibit 35 indicates that there
is agreement to the tune of 6% of the permanent
disability of the body as a whole. In light of
such evidence on record, the contention that the
disability has been wrongly considered, deserves
to be negatived.
9. Similarly, referring to the payslip at exhibit
33, it is crystal clear that the respondent no.1
was just a daily wager and that too on fixed pay
and there is no question of considering
promotion or enhancement of payscale and in
case by efflux of time there is some increase as
admitted by respondent no.1 in his cross
examination, the same would not constitute that
there is any rise in his payscale. Rise in
daily wage would not constitute rise in minimum
wage. Hence, the ratio laid down in the case of
State of Gujarat (supra) would not be applicable
to the case on hand. Both the contentions
therefore fail. Even otherwise the appeal is
required to be dismissed on the ground of
smallness of amount as the amount is
Rs.91,129/. Consequently, the appeal stands
dismissed. The impugned judgment and award
stands confirmed. However, there shall be no
order as to costs. R & P be transmitted to the
Tribunal forthwith.
(R.M.CHHAYA, J)
BIJOY B. PILLAI
