Gujarat High Court
National Insurance Co Ltd vs Ashwinbhai Yakubbhai Sangada on 8 April, 2022
Bench: Ashokkumar C. Joshi
C/FA/349/2013 JUDGMENT DATED: 08/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 349 of 2013
With
R/CROSS OBJECTION NO. 133 of 2013
In
FIRST APPEAL NO. 349 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NATIONAL INSURANCE CO LTD
Versus
ASHWINBHAI YAKUBBHAI SANGADA & 2 other(s)
=======================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MS SNEHA A JOSHI(2156) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 08/04/2022
ORAL JUDGMENT
1. The captioned first appeal is filed by the appellant -
insurance company - original respondent No. 3, whereas the
C/FA/349/2013 JUDGMENT DATED: 08/04/2022
cross-objection is filed by the original claimant, against the
judgment and award dated 16.05.2012 passed in Motor Accident
Claim Petition No. 4899 of 2004 (herein after referred to as "the
claim petition") by the learned Motor Accident Claims Petition
(Aux.), Dahod (herein after referred to as "the Tribunal"). By
filing the said claim petition, the original claimant had claimed
the compensation in the sum of Rs.3,25,000/- as against that, the
Tribunal has awarded the compensation to the tune of
Rs.63,788/- holding the opponents in the claim petition jointly
and severally liable to pay the compensation. Therefore, the
insurance company has filed the appeal challenging the liability
whereas, the original claimant has filed the cross-objection for
enhancement of compensation.
2. Since the facts of the accident are not in dispute, the Court
deems it proper not to detail the same. Least is to observe that
in an accident that had occurred on 09.09.2001, when the
original claimant was travelling in a chhakdo rickshaw, and the
driver lost the control and the said chhakdo rickshaw turned
turtle due to which, the original claimant sustained injuries, for
which, he filed the above-referred claim petition in which, the
learned Tribunal has passed the above award.
3. Heard, learned advocate Mr. H. G. Mazmudar for the
appellant and learned advocate Ms. Sneha Joshi for the cross-
objector.
3.1 The learned advocate for the appellant has mainly argued
that though there was no legal and valid driving licence and
thereby, breach of insurance policy condition, the learned
Tribunal fastened the liability to pay the compensation upon the
C/FA/349/2013 JUDGMENT DATED: 08/04/2022
appellant - insurance company jointly and severally and
accordingly, in the submission of the learned advocate for the
insurance company, the Tribunal has materially erred.
3.2 So far as the cross-objection is concerned, the learned
advocate for the insurance company resisted the same and
submitted that considering the income and status of the
claimant, the Tribunal has rightly awarded the compensation and
accordingly, no interference is called for so far as quantum is
concerned.
4. Whereas, the gist of the arguments of the learned advocate
for the cross-objector is that the award passed by the Tribunal to
the tune of Rs.63,788/- is on the lower side against total claim of
Rs.3,25,000/-. Further, the learned Tribunal ought to have
granted interest at the rate 12% instead of 6% per annum and
accordingly, it is urged that the award may be suitably
enhanced.
5. Regard being had to the submissions made and considering
the material on record, more particularly, the impugned
judgment and award, it appears that in a vehicular accident, the
original claimant sustained injuries for which, a claim petition for
getting compensation to the tune of Rs.3,25,000/- came to be
filed, which came to be allowed in part and the Tribunal was
pleased to award compensation in the sum of Rs.63,788/- with
proportionate cost and interest at the rate 6% per annum from
the date of the claim petition till realization.
5.1 A perusal of the judgment and award reveals that the
tribunal has considered the income of the claimant at the rate
C/FA/349/2013 JUDGMENT DATED: 08/04/2022
Rs.2,400/-, considering Rs.100/- per diem for 24 days, in the year
2002. In the opinion of the Court, the Tribunal has erred in
considering such income that too, for 24 days and, it ought to
have considered the income at the rate Rs.3,000/- per mensem
(i.e. Rs.100/- for 30 days). Considering the same, the actual loss
of income would be Rs.3000 x 2.5 (for which period, the claimant
was under rest) = 7,500/-. Further, indisputably, the claimant
sustained 7% disability body as a whole and therefore, monthly
loss of income would be 30 x 7 = 210, which if multiplied by 12,
the yearly loss of income would come to Rs.2,520/-. Applying the
multiplier of 18, the future loss of income would come to Rs.2,520
x 18 = 45,360/-. Accordingly, the claimant should be entitled to
following amount towards compensation:
Head Awarded by Ought to have
Tribunal been awarded
Pain, shock and suffering 7,500/- 7,500/-
Medical Expenses 4,000/- 4,000/-
Transportation, Special Diet, 10,000/- 10,000/-
Attendant Charges
Actual loss of income 6,000/- 7,500/-
Future loss of income 36,288/- 45,360/-
Total 63,788/- 74,360/-
5.2 Thus, the claimant ought to have been awarded an amount
of Rs.74,360/- towards compensation.
5.3 So far as, the submission of the learned advocate for the
insurance company to the effect that the driver of the offending
vehicle was not having the valid Driving Licence and accordingly,
insurance company ought to have been exonerated is concerned,
the learned Tribunal, in the impugned judgment and award, in
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paragraph 15 has dealt with such an issue and observed that the
accident had occurred after the expiry of suspension period for
which the licence was ordered to be suspended and accordingly,
the Tribunal opined that there is no breach of condition of the
insurance policy. This Court is in agreement with the view taken
by the Tribunal inasmuch as, it is observed that the licence was
suspended for a period of two months, commencing from
03.06.2000 and the accident had occurred on 09.09.2001 and
accordingly, the Tribunal has rightly held so.
6. In view of the aforesaid discussion and observations, the
first appeal fails and is dismissed accordingly.
6.1 The cross-objection succeeds and is allowed in part. The
cross-objector - original claimant is held to be entitled to the
compensation to the tune of Rs.74,360/- instead of Rs.63,788/- as
awarded by the Tribunal and to that extent, the impugned
judgment and award is modified. Further, the claimant shall be
entitled for interest at the rate 6% per annum from the date of
award. Rest shall remain intact. R&P, if received, be returned
forthwith.
[ A. C. Joshi, J. ]
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