National Insurance Co Ltd vs Anitadevi Parasmal Devra @ Sharma
2021 Latest Caselaw 16460 Guj

     C/FA/3076/2021                               ORDER DATED: 21/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3076 of 2021

                                    With

                  CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                             In
                           R/FIRST APPEAL NO. 3076 of 2021
==================================================================
                            NATIONAL INSURANCE CO LTD
                                            Versus
                     ANITADEVI PARASMAL DEVRA @ SHARMA
==================================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
for the Defendant(s) No. 2,3,6,7,7.1,7.2,7.3
MS AMRITA AJMERA(5204) for the Defendant(s) No. 1,4,5
==================================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                            and
         HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 21/10/2021
                              ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Insurer is calling in question the judgment and award dated

04.01.2019 passed by Motor Accident Claims Tribunal (Aux.), Navsari in

Motor Accident Claim Petition No.133 of 2012 whereunder the claim

petition filed by the respondents under Section 166 of the Motor Vehicles

Act, 1988 has been allowed in part and a total compensation of

Rs.19,82,500/- with interest @ 9% per annum from the date of filing of

the claim petition till payment along with proportionate costs of the

application has been granted which is under challenge.

C/FA/3076/2021 ORDER DATED: 21/10/2021

2. We have heard Ms. Lilu K. Bhaya, learned counsel for the

appellant and Ms. Amrita Ajmera, learned counsel for the respondents.

3. Perused the judgment and award impugned in this appeal. The

occurrence of the accident on 14.06.2012 and the death of Parasmal

Devra @ Sharma, husband of claimant No.1, father of claimant Nos.2 and

3 and son of claimant Nos.4 and 5, due to fatal injuries being sustained by

the deceased, resulting in his ultimate death as well as issuance of policy

to the offending vehicle and same being in force as on the date of the

accident are all undisputed facts. Hence, we do not propose to state the

same as it would only be the repetition of facts.

4. It is the contention of the learned counsel appearing for the

appellant that Tribunal committed an error in awarding the medical

expenses to the tune of Rs.3,06,000/- by completely ignoring that for the

said amount, the deceased had raised the claim by mediclaim policy and

had been reimbursed to remaining extent and said authorities having

found that certain amount was to be disallowed and had accordingly

disallowed and this fact had been completely ignored by the Tribunal and,

as such, compensation awarded under the heading of medical expenses is

required to be interfered with. She would also elaborate her contention

by contending that Tribunal committed an error in ignoring the fact that

deceased was also responsible for the accident and thereby he had

C/FA/3076/2021 ORDER DATED: 21/10/2021

contributed to the accident in question and non-consideration of vital

evidence available on record by discussing the FIR, the charge-sheet in

extenso has resulted in error being committed by the learned Member of

the Tribunal and she prays for the appeal being allowed and judgment and

award passed by the Tribunal being modified.

5. Per contra, Ms. Ajmera, learned counsel for the respondents -

claimants would support the impugned judgment and award.

6. Having heard learned counsels for the parties and on perusal of the

records, we are of the considered view that following points would raise

for our consideration:

(i) Whether Tribunal committed an error in arriving at a

conclusion that accident had occurred on account of

negligence of the driver of the jeep and there was no

negligence on the part of the deceased?

(ii) Whether the compensation awarded by the Tribunal

under any of the heads including medical expenses is

excessive? And if so, to what extent?

RE: POINT No.(i)

The judgment and award of the Tribunal would clearly indicate that

father of the deceased had entered the witness box and had filed his

C/FA/3076/2021 ORDER DATED: 21/10/2021

affidavit in lieu of examination-in-chief Exh.58 revealing that he was not

present at the time of the accident. However, the undisputed records viz.

FIR disclosed that driver of the jeep was on the wrong side and had

dashed with the motorcycle driven by the deceased. The insurer neither

examined the driver of the jeep nor produced any contrary evidence to

establish or prove that there was some negligence on the part of the

deceased. In absence of such evidence available and FIR disclosing that

on account of rash and negligent driving by the driver of the jeep that had

caused the accident, Tribunal could not have proceeded is record of

finding contrary to the same on the basis of if's and but's viz. that

deceased might have contributed his negligence to the accident in

question. That apart, we notice that insurer had never questioned the

correctness of the contents of the FIR or had challenged the charge-sheet

filed against the driver of the jeep. Hence, for these reasons, we are of the

considered view that findings recorded by the Tribunal would not call for

interference insofar as holding that driver of the jeep has been negligent

to the extent of 100% for causing the accident in question. Accordingly,

point No.(i) is answered against the appellant and in favour of the

respondents.

RE: POINT No.(ii)

The compensation which has been awarded by the Tribunal under various

C/FA/3076/2021 ORDER DATED: 21/10/2021

heads are as follows:

                  Amount in Rs.                               Particulars
                 Rs.16,06,500/-             Loss of Dependency
                       Rs.15,000/-          Loss of Estate
                       Rs.40,000/-          Loss of Consortium
                       Rs.15,000/-          Funeral Expenses
                      Rs.3,06,000/-         Medical Bills and Hospital Charges
                 Rs.19,82,500/-             Total Compensation

7. Insofar as the compensation which has been awarded under the

head 'Medical Bills and Hospital Charges' is Rs.3,06,000/- is under

challenge or the ground it is excessive. Undisputedly, deceased had taken

a policy for mediclaim and had submitted all his bills for reimbursement

towards medical expenses. Out of total claim of Rs.2,82,280/-, only a

sum of Rs.1,04,500/- has been awarded and a sum of Rs.1,77,780/- has

been disallowed by mediclaim. It is on account of this disallowance, the

claimants have pressed for award of compensation. The Tribunal on

evaluating documentary evidence available before it has rightly arrived at

a conclusion that notwithstanding the disallowance the bills produced,

claim cannot be disbelieved, and as such, it had allowed the claim of

Rs.1,77,780/-. Subsequently, on account of further treatment taken by the

deceased, a sum of Rs,72,900/- was granted under the reimbursement

towards mediclaim by disallowing a sum of Rs.33,549/- which was

granted to claimant. The mediclaim bills which came to be produced had

been marked at Exhs.94 and 95. It is under the extant policy of the

C/FA/3076/2021 ORDER DATED: 21/10/2021

mediclaim, certain bills had been disallowed. As it was a contract

between the parties and on re-appreciation of evidence the said

disallowance has been held by the Tribunal as not justifiable and to that

extent only, the Tribunal has allowed by awarding a sum of Rs.33,549/-

which had been disallowed under the mediclaim.

8. We are of the considered view that compensation that has been

awarded under the medical charges which includes hospital charges in a

sum of Rs.3,06,000/-, cannot be construed as excessive or exorbitant or

not commensurate with the injury that the deceased had suffered. It would

not be out of context to refer at this juncture itself that the injury that was

sustained by the deceased was a crush injury of right ankle which resulted

in intermittent hospitalisation, surgery as discussed in detail by the

Tribunal in the judgment and award which is under challenge. Hence, we

are of the considered view that the compensation that has been awarded

by the Tribunal, would not call for interference and accordingly point No.

(ii) is answered against the appellant and in favour of the claimants.

9. For the reasons aforestated, we proceed to pass following

ORDER

(i) Appeal is dismissed and judgment and award dated

04.01.2019 passed by the Motor Accident Claims Tribunal

(Aux.), Navsari in Motor Accident Claim Petition No.133 of

C/FA/3076/2021 ORDER DATED: 21/10/2021

2012 is affirmed.

(ii) Insurer shall deposit the compensation awarded by the

Tribunal with interest before the jurisdictional Tribunal

expeditiously at any rate within six weeks from the date of

receipt of the copy of this order.

(iii) Costs made easy.

10. In view of the order passed in main appeal, civil application stands

disposed of as having become infructuous.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J) Bharat