United India Insurance Company ... vs Parsotambhai Tulsibhai ...
2022 Latest Caselaw 4355 Guj

     C/FA/3261/2013                             JUDGMENT DATED: 25/04/2022



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/FIRST APPEAL NO. 3261 of 2013
FOR APPROVAL AND SIGNATURE:
 HONOURABLE MR. JUSTICE R.M.CHHAYA            sd/-
 and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK sd/-
==============================================================
1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy of            NO
      the judgment ?

4     Whether this case involves a substantial question of            NO
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

==============================================================
       UNITED INDIA INSURANCE COMPANY LIMITED.
                         Versus
PARSOTAMBHAI TULSIBHAI PRAJAPATI SINCE DIED. THRO HIERS
                       & 3 other(s)
==============================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR DN PANDYA(545) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED for the Defendant(s) No. 2,3
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 4
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
                       Date : 25/04/2022
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 30.07.2013 passed by the Motor Accident Claims Tribunal (Main), Narmada at Rajpipla in MACP No.04 of 2010, the Insurance Company has preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2.0. Following facts emerge from the record of this appeal:

C/FA/3261/2013 JUDGMENT DATED: 25/04/2022

2.1. That the accident took place on 19.09.2009 near Kasbara village rebutting on Tarapur- Vataman Highway road. It is the case of the original claimants that on the said day, original claimant nos.1 and 2 were traveling in Opel Corsa vehicle being No. GJ6AB/7182 from village Bhimnath towards Vadodara. It is the case of the original claimants that when Car reached near Kasbara village, Opel Corsa car break down and hence original claimant took the services of one Tata Max vehicle being no. GH1-AT-9309 for toeing the car. It is the case of the original claimants that deceased was driving the Opel Corsa Car and when he reached near scene of occurrence at about 10 pm, a truck bearing registration no. GJ18-T-9118 being driven rash and negligent manner, dashed with the Opel Corsa Car and because of which, Opel Corsa Car turned turtle. The record indicates that the deceased Parsotam sustained serious injuries and was taken to the government hospital where he was declared dead. It is the case of the original claimants that the deceased was 50 years old and he was engaged in the vocation of contractor and was earning Rs.30000/- per month. Present claim petition was filed under Section 166 of the Act and claimed compensation of Rs.60 lakhs. One of the claimant was examined at Exh.23 and another claimant was examined at Exh.36. The claimants relied upon the following plethora of documentary evidence:

Particulars                                    Exh. No.










    C/FA/3261/2013                                      JUDGMENT DATED: 25/04/2022

Copy of verification of report of driving 57 license of opponent no.1

Copy of letter to United Indian Insurance Co 59 Limited

After considering the evidence on record, Tribunal determined the income of the deceased at Rs.5,000/- per month and after giving prospective income to the extent of 30%, deducted 1/3rd towards personal expenses, applied multiplier 13 based on age as mentioned in the postmortem note and school leaving certificate and thus awarded a sum of Rs.6,76,000/- compensation under the head of loss of dependency. Over and above the same, Tribunal was pleased to award Rs.25000/- under the head of conventional and Rs.50000/- towards damage to the vehicle of the deceased and thus while partly allowing the claim petition awarded a sum of Rs.7,51,000/- with 9% interest from the date of filing of the claim petition till its realization. Being aggrieved and dissatisfied with the impugned judgment and award, the Insurance Company preferred present appeal.

C/FA/3261/2013 JUDGMENT DATED: 25/04/2022

3.0. Heard Mr. Palak Thakkar, learned advocate for the appellant Insurance Company and Mr. D.N. Pandya, learned advocate for the original claimants. Though served, nobody appears on behalf of the other respondents.

4.0. Mr. Thakkar, learned advocate for the appellant relying upon the letter of RTO, Muzaffarpur at Exh.56 vehemently contended that the driver of the truck did not possess the valid license and had a fake license. According to Mr. Thakkar, as per the letter at Exh.56 issued by the RTO, Muzaffarpur no such license was ever issued to the driver of the truck and therefore, it was contended that the appellant Insurance Company cannot be held to be liable.

4.1. Mr. Thakkar further contended that the Tribunal has granted excessive amount of compensation inasmuch as that as per the Pan Car at Exh.50 the age of the deceased was 54 years old, however the Tribunal has wrongly considered the age of the deceased based upon the driving license and the postmortem note and has granted higher multiplier of 13 instead of 11. Mr. Thakkar also contended that the no damage to the car to the tune of Rs.50000/- could have been awarded by the Tribunal since risk towards third party property damage was not covered under the policy. On the aforesaid grounds, Mr. Thakkar contended that the appeal deserves to be allowed the appellant Insurance Company deserves to be exonerated. 5.0. Per contra, Mr. D.N. Pandya, learned advocate for the original claimants has supported the impugned judgment and award and has submitted that the Tribunal has committed no error in coming to the conclusion that the except the letter the Insurance Company has not proved the fact that there was no

C/FA/3261/2013 JUDGMENT DATED: 25/04/2022

valid license or that the license was fake. On quantum, Mr. Pandya contended that the Tribunal has granted just and adequate compensation, no interference is called for. Mr. Pandya submitted that the appeal being meritless, deserves to be dismissed.

6.0. No other and further submissions, contentions and / or grounds have been raised by the learned advocates for the respective parties.

7.0. Upon considering the submissions made by the learned advocates for the respective parties, following question arise for consideration of this Court in this appeal.

I. Whether the appellant Insurance Company has proved that the driver of the truck has a fake license or not ? II. Whether the Tribunal has granted excessive compensation to the original claimants or not ?

8.0. Upon examining the document on record and perusing the paperbook, more particularly, letter issued by the District Transport Officer, Muzaffarpur at Exh.56 shows that the license no. 572/2006 was not issued by its office. However, fact remains that the appellant Insurance Company has not examined anybody to prove the contents of the said communication at Exh.56. Apart from the fact that as rightly observed by the Tribunal even in the written statement at Exh.21 in para 3 what is contended by the appellant is only fact that the driver did not possess valid and effective driving license. The appellant has therefore, not proved the fact that license of the driver of the truck was fake. It appears that except bare assertion in the written argument at Exh.60, the appellant Insurance Company has not able to prove that the license of the driver of the truck

C/FA/3261/2013 JUDGMENT DATED: 25/04/2022

was fake, therefore, the first question which arise in this appeal is decided against the appellant and in favour of the claimants. As far as quantum is concerned, we find that the Tribunal has committed no error in determining the age of the deceased based upon the driving license at Exh.49. Only because in Pan Card different birth date is mentioned, birth date as mentioned in the driving license cannot be brushed aside. As far as amount under conventional head is concerned, we find that the Tribunal as such has granted Rs.25000/- not to be on higher side, which even as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 should be Rs.70,000/-. If the said aspect taken into consideration, there would be hardly difference of Rs.5000/- which does not require any interference at the instance of this Court in exercise of its appellate jurisdiction. Hence, in overall facts and circumstances, the Tribunal has awarded just and adequate compensation, no interference is called for. The question no.2 raised in this appeal, therefore, answered accordingly. Hence, appeal deserves to be dismissed and is accordingly dismissed. Record and proceedings of the case be transmitted back to the Tribunal forthwith.

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(R.M.CHHAYA,J)

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(HEMANT M. PRACHCHHAK,J) KAUSHIK J. RATHOD