Iffco Tokio General Insurance Co. ... vs Ujamben Manilal Patel
2021 Latest Caselaw 5848 Guj

      C/FA/2566/2020                                      ORDER DATED: 11/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 2566 of 2020
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                    In R/FIRST APPEAL NO. 2566 of 2020
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                IFFCO TOKIO GENERAL INSURANCE CO. LTD.
                                Versus
                        UJAMBEN MANILAL PATEL
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4,5
MS. KRUPA P SONI(10048) for the Defendant(s) No. 6,7
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  CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 11/06/2021

                                    ORAL ORDER

Heard learned advocate Mr.Rathin Raval for the appellant insurance company, learned advocate Mr.Hiren Modi for respondent Nos.1 to 5 and learned advocate Ms.Krupa Soni for respondent Nos.6 and 7.

2. The present First Appeal preferred by the appellant insurance company under Section 173 of the Motor Vehicles Act, 1988 is directed against judgment and award dated 27th August, 2019 passed by Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himmatnagar in MACP No.399 of 2011. The Claims Tribunal thereby awarded compensation of Rs.46,82,740/- with interest at the rate of 9% holding the opponent Nos.1 to 3, whom included the appellant insurance company-the original opponent No.3, liable to pay such compensation jointly and severally.

C/FA/2566/2020 ORDER DATED: 11/06/2021

3. The vehicular accident took place on 29 th December, 2010. The deceased Manilal Lakhabhai Patel, husband of original applicant No.1 and father of original applicant Nos.2 to 5, was a pedestrian walking on the three cross roads Motipura at National Highway, Ahmedabad-Himmatnagar. It is the case that at that time Truck bearing registration No.GJ-1-AU- 3140 came with excessive speed driven rashly and negligently. Pedestrian Manilal was knocked down and he died in course of medical treatment due to grievous injuries he suffered. The claim petition was filed seeking compensation of Rs.75 lakhs.

3.1 The appellant insurance company contested the claim petition by filing written statement at Exh.19. Issues were framed at Exh.28 by the Tribunal. As recorded by the Tribunal, applicant No.2 produced oral evidence with affidavit at Exh.39 and also produced documentary evidence in support of the case. The Tribunal recorded that insurance company did not produce any oral or documentary evidence.

3.2 The Tribunal framed issues about the negligency of Driver of offending Truck, to answer the same in affirmative. Considering the details of the age and income etc. of the deceased and attendant aspects, proceeded to adjudicate the claim to award the compensation to the claimants as above.

3.3 The deceased was 52 years old and had a job of Forest Officer, Grade I. He was drawing monthly salary of Rs.50,000/-. Salary income was proved by

C/FA/2566/2020 ORDER DATED: 11/06/2021

salary certificate at Exh.49 for the month of December, 2010. It was the case that he had agricultural income of Rs.06.00 lakhs per annum by doing supervision work. However, to substantiate the said plea about the additional income from agriculture by doing supervision work, no evidence was produced nor Income-tax Return of the deceased show any such income.

3.4 The Tribunal relied on salary certificate to conclude that the deceased drew actual salary of Rs.40,416/- per month. The Tribunal implied multiplier of 11 in light of decision of the Apex Court in case of Sarla Verma v. Delhi Transport Corporation [(2006) 9 SCC 121]. Prospective income to the extent of 15% was added, for which decision of the Apex Court in National Insurance Company Limited v. Pranay Sethi [(2017) 16 SCC 680] was applied. Amount of compensation is accordingly calculated which included Rs.46,12,740/- towards future loss of dependency, Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- was awarded towards funeral and transportation expenses, totaling to Rs.46,82,740/-, which was the amount awarded with 9% interest as stated above.

4. Upon hearing of the matter and on overall consideration, it has to be concluded and observed that the Tribunal has properly appreciated the relevant aspects and has applied the principles enunciated by the Supreme Court in case of Sarla

C/FA/2566/2020 ORDER DATED: 11/06/2021

Verma (supra) and Pranay Sethi (supra) to arrive at above figure of compensation. The quantum of compensation awarded represents just compensation and as such does not call for any interference.

5. An aspect was urged however by learned advocate for the appellant insurance company. He submitted with reference to Civil Application No.2 of 2020 which is filed for production of additional evidence under Order XLI Rule 2 of the Code of Civil Procedure, 1908. Along with the said application, what is sought to be produced by the appellant insurance company is the certificate issued by Regional Transport Office, Himmatnagar, which specifies the details of the period of validity of permit issued to the offending goods vehicle in question, being Truck bearing No.GJ-1-AU-3140. This application which was also heard today, has been allowed by order of even date.

5.1 The said additional document in the nature of certificate by the Regional Transport Office indicates that the validity period of the goods carriage of the offending Truck was from 30th December, 2010 to 19th September, 2015. The accident took place on 29th December, 2010. It was, therefore, the position shown that on the date of accident, there was no permit held by the offending vehicle. As per this document, as the accident took place on the date when the Truck did not have the valid permit, insurance company is not liable to pay the compensation. It was submitted that Section 66 of the

C/FA/2566/2020 ORDER DATED: 11/06/2021

Act deals with necessity of permit.

5.2 Since now the document is produced which prima facie shows that on the date of accident there was no valid permit, the insurance company could legitimately contend that it is required to be exonerated from the liability. In any view, alternatively, pay and recovery principle would have to be applied, it was sought to be submitted.

5.3 When the aforesaid document-certificate is produced which reflect prima facie position that on the date of accident the offending vehicle did not have the valid permit, it would be appropriate to give opportunity to the other side to revert the said factum and lead evidence contrary to the document permitted to be produced as above. If it could be established that the accident took place within the validity period of permit or that there was a valid permit on the date of accident, the complexion of the case would be different than what is sought to be argued on behalf of the appellant insurance company.

5.4 In view of the above position arising out due to the production of additional evidence as above, the case deserves to be remanded to the Tribunal concerned to permit the respondent to lead their evidence to controvert and revert the position sought to be shown by the insurance company that the accident took place prior to the commencement of period of permit and therefore there was no permit on the date of accident.

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5.5 The Tribunal shall give opportunity to the other side to lead their evidence on the said aspect and shall thereafter decide again by rendering the fresh judgment and award. Such exercise shall be completed within four months from the date of receipt of the present order.

6. Yet another aspect could be noticed from the judgment of the Claims Tribunal. As per the operative portion, interest is awarded at the rate of 9% on the amount of compensation, however in paragraph No.26, it is recorded by the Tribunal, "Thus, the petitioners are awarded total compensation of Rs.46,82,740/- along with interest at the rate of 8% per annum from the date of petition till realization.".

6.1 While examining the matter on remand and rendering fresh judgment and award, the Tribunal shall also look into the variance in the rate of interest awarded which is mentioned in the operative portion as 9% per annum whereas in the text, it was provided to be 8% per annum. The principle of law about the interest would be applied and the interest shall be awarded at a proper rate.

7. The Appeal is disposed of as per the above directions.

ORDER IN CIVIL APPLICATION

This Court on 27th January, 2021 granted stay on the operation and implementation of the judgment and award impugned in the Appeal on

C/FA/2566/2020 ORDER DATED: 11/06/2021

condition that the applicant insurance company shall deposit the amount of liability of the applicant as determined by the Tribunal.

It was stated today by learned advocate for the insurance company that such amount has already been deposited and the condition is complied with.

While the First Appeal is disposed of by remanding the case on the above two aspects for reconsideration of the same by the Claims Tribunal, in the interregnum, following treatment to the deposited amount shall sub-serve the ends of justice.

(i)               All the five claimants shall be entitled to
                  disbursement        of     30%      of    the    total        amount
                  which     shall     be      paid      to     them       in       equal
                  proportion;

(ii)              However, since respondent No.5 is minor, as

stated by learned advocate, his share will be received by respondent No.1 on his behalf;

(iii) The Tribunal shall pay the amount to the claimants to the above extent by following the procedure and verifying the identity of the claimants, transmitting the amount directly in the savings bank account in the name of claimants concerned;

(iv)              Rest of the 70% amount shall be invested in
                  a      cumulative        fixed        deposit          with         any






        C/FA/2566/2020                               ORDER DATED: 11/06/2021

nationalized bank, initially for a period of one year and renewable;

(v) The FDR shall remain in custody of Nazir of the Tribunal, which shall not be utilised for any purpose including raising of loan;

(vi) The claimants shall not be entitled to periodical interest.

The application is allowed and disposed of as per the above directions.

(N.V.ANJARIA, J) ANUP