Gujarat High Court

United India Insurance Company ... vs Yuvrajsinh Kiritsinh Jadeja on 14 December, 2022

Bench: Nikhil S. Kariel

      C/FA/3302/2017                              JUDGMENT DATED: 14/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3302 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                              No

2     To be referred to the Reporter or not ?                            No

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

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

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                 UNITED INDIA INSURANCE COMPANY LIMITED.
                                   Versus
                  YUVRAJSINH KIRITSINH JADEJA & 3 other(s)
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
MR DEVANSH KAKKAD, ADVOCATE for MR. HEMAL SHAH(6960) for the
Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 14/12/2022
                              ORAL JUDGMENT

1. Heard learned Advocate Mr. Rathin P. Raval for the appellant-United

India Insurance Company Limited, learned Advocate Mr. Devansh Kakkad

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

for learned Advocate Mr. Hemal Shah for the respondent No.1-original

claimant and learned Advocate Mr. Sunil B. Parikh for the respondent No.3-

National Insurance Company Limited.

2. By way of this appeal, the appellant - Insurance Company i.e. the

Insurance Company of the claimant challenges the judgment and award

dated 12.06.2017 passed by the learned M.A.C. Tribunal (Aux.) Rajkot, in

M.A.C. Petition No. 835 of 2011.

3. Learned Advocate Mr. Raval for the appellant would submit that the

appellant is the Insurance Company of the claimant and whereas the

impugned judgment and award is challenged on two counts that is on the

count of 70% liability as regards the accident being imposed upon the Truck

in question and only 30% liability being imposed upon the stationary Truck

i.e. the Truck insured with the respondent No.3- National Insurance

Company and the second count of challenge being that the learned Tribunal

has considered 100% functional disability of the claimant as against 45%

actual disability as agreed between the parties. Learned Advocate Mr. Raval

would submit that by way of the impugned judgment and award, the learned

Tribunal has awarded an amount of Rs. 11,49,881/- with 9% interest from

the date of the claim petition till the date of actual realization and whereas as

per the degree of negligence, 70% of the awarded amount is directed to be

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

paid by the appellant Insurance Company, whereas 30% of the awarded

amount is directed to be paid by the respondent No.3- Insurance Company.

3.1 Learned Advocate Mr. Raval would submit that the accident had

occurred on 23.03.2011 in the midnight at 11:45 P.M. and whereas the

claimant was driving an Eicher Truck bearing Registration No. GJ.2.Z.5087

and whereas while it was travelling between Tankara to Rajkot, it had

dashed with the stationary Truck having Registration No. MH.18.M.8071,

which was parked on the road, more particularly without any indicator.

Learned Advocate would further submit that from the judgment and order

of the learned Tribunal, it appears that the driver of the Truck insured with

the appellant had tried to save a pedestrian and it is on account of such

reason, the driver had collided the Truck with the parked Truck insured

with the respondent No.3, more particularly according to learned Advocate

Mr. Raval, on account of the fact that the stationary Truck did not have any

signal or indicator on. Learned Advocate would submit that under such

circumstances, since the accident had occurred also on account of the fact

that the Truck insured with the respondent No.3 was parked in a hazardous

manner on the road without any indicator, therefore the negligence of the

said Truck was of much higher degree than the alleged negligence of the

driver of the Truck insured with the appellant Insurance Company. Having

regard to such circumstances, learned Advocate would submit that the

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learned Tribunal had gravely erred in holding that the appellant Insurance

Company was liable for 70% of the award, whereas the respondent No.3

Insurance Company was only liable for 30%.

3.2 Learned Advocate Mr. Raval would further submit that a reading of

the Panchnama of the place of the accident would reveal that the Truck

insured with the appellant Insurance Company was standing on the shoulder

of the road or rather some part of the Truck was on the edge of the road

and whereas according to the learned Advocate Mr. Raval, this would show

that the offending Truck i.e. the Truck insured with the respondent

Insurance Company was parked either on the road or adjacent to the road.

Thus, according to learned Advocate Mr. Raval, if not a higher degree of

negligence, at least the respondent No.3 Insurance Company ought to have

been made equally liable.

3.3 Learned Advocate Mr. Raval would further rely upon the Paragraphs

No. 12 and 12.1 of the impugned decision and would submit that while

with consensus of the parties the physical disability of the claimant i.e. driver

of the Truck insured with the appellant Insurance Company was fixed at

45%, yet the learned Tribunal had considered the functional disability of the

claimant at 100%. Learned Advocate would submit that such a conclusion

by the learned Tribunal being prima facie erroneous, therefore this Court

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may interfere and appropriately modify the judgment and award in question.

3.4 Learned Advocate Mr. Raval for the appellant would further submit

that before the learned Tribunal, the parties were ad idem as regards the

physical disability of the claimant and whereas inspite of the same, the

learned Tribunal has considered the functional disability at 100%, and

therefore also he requests that the impugned judgment may be set aside by

this Court.

4. This appeal is vehemently objected to by learned Advocate Mr. Sunil

Parikh for the respondent No. 3 - Insurance Company. Learned Advocate

Mr. Parikh would submit that the Truck insured with the respondent No.3 -

Insurance Company was parked not only besides the road, but according to

learned Advocate Mr. Parikh, a perusal of the Panchnama of place of the

accident would reveal that the Truck was parked at some distance from the

road and whereas the Truck insured with the appellant- Insurance Company

being driven by the respondent No.1-claimant in rash and negligent manner

and whereas the Truck after hitting a pedestrian had jumped of the road and

had hit the stationary Truck insured with the respondent No.3. Learned

Advocate Mr. Parikh would therefore submit that as such the respondent

No.3- Insurance Company could not have been imposed with even 30% of

the liability, but since the respondent No.3 has chosen not to challenge the

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

the appeal, therefore the learned Advocate leaves the arguments at that.

5. This appeal is also vehemently objected to by learned Advocate Mr.

Kakkad for learned Advocate Mr. Shah for the respondent No.1-claimant.

Learned Advocate Mr. Kakkad would submit that while it is true that the

respondent No.1-claimant had suffered only 45% physical disability, but at

the same time the functional disability as rightly held by the learned Tribunal

was 100%. Learned Advocate Mr. Kakkad would in this connection rely

upon the decision of the Hon'ble Apex Court in case of Raj Kumar Vs. Ajay

Kumar and Another, reported in (2011) 1 SCC 343, whereby the Hon'ble

Apex Court has inter alia observed that the permanent disability arising out

of an accident, should be compensated depending on the effect and impact

of such permanent disability would have on the earning capacity of the

claimant. Learned Advocate would submit that the original claimant-

respondent No.1 herein, at the relevant point of time being a driver, and

whereas on account of the accident, the right foot of the claimant being

required to be amputated below the knee and the entire left foot of the

claimant getting completely crushed, therefore the claimant had lost 100%

earning capacity as a driver, and therefore the learned Tribunal has rightly

considered the functional disability at 100%. Having regard to such

submissions, learned Advocate Mr. Kakkad would this Court not to

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interfere with the impugned judgment and award.

6. Heard learned Advocates for the respective parties who have not

submitted anything further.

7. Insofar as the accident in question, more particularly to decide the

negligence of the Trucks in question is concerned, it would be beneficial to

refer to the FIR as well as to the Panchnama of the place of the accident,

Exh. 31 and 32 before the learned Tribunal. It appears that the FIR was

lodged by the driver of the Truck which was parked near the place of the

accident, not being one of the Trucks in question and more particularly the

cleaner of the Truck having expired in the accident in question. From a

plain reading of the Panchmana of the place of the accident, it appears that

the Truck insured with the appellant was found at the edge of the highway,

more particularly the Truck, according to the Panchnama and according to

the submission of learned Advocate Mr. Raval, part of the Truck standing

on the edge of the road and part of the Truck standing on the Kachha road

besides the main highway. It appears that the Truck insured with the

appellant, had first hit a pedestrian and thereafter the driver appears to have

lost control and driven to the left side of the road and had dashed with the

Truck insured with the respondent No.3 parked besides the road. It also

appears from the description of the vehicles after the accident that, the left

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

side of the Truck insured with the appellant Insurance Company was

completely damaged and on the other hand, the right side of the back

portion of the Truck insured with the respondent No.3 Insurance Company,

was also considerably damaged. A fair presumption could be drawn that the

Truck insured with the appellant had dashed with the right hand corner of

the back side of the Truck insured with the respondent No.3 Insurance

Company. From the position of the Trucks and the resultant impact, it

appears that the Truck insured with the respondent No.3 had rolled in a

ditch besides the road on account of the impact and whereas the impact and

the manner in which the impact had happened was such that the Truck did

not roll down as in normal course with the front side first, rather the

accident had resulted in the Truck actually being pushed to the side of the

road and the Truck had rolled into the ditch back side first. From the

Panchnama and from the manner in which the Truck insured with the

appellant was found, even if assuming that some part of the Truck i.e. the

part driver of the Truck was touching on the edge of the road, but as noted

hereinabove, the left side of that Truck had been destroyed in the accident

and on the other hand, the Truck insured with the respondent No.3

Insurance Company damaged on the right hand side i.e. behind the driver's

cabin on its back portion, therefore as noted hereinabove, it could be clearly

presumed that the said Truck was parked besides the road and not on the

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

road and whereas it would also appear that the Truck insured with the

appellant, on account of the accident with the pedestrian, the driver could

not control the Truck and he had dashed his vehicle with the stationary

Truck insured with the respondent No.3, which had resulted in the said

Truck being pushed of the road. Thus, from the perusal of the Panchnama

of the place of the accident and the FIR, in the considered opinion of this

Court, the Truck insured with the respondent No.3 Insurance Company was

not parked in a negligent manner, more particularly it does not appear that

the Truck was in any way touching the road or near the road and also

considering the fact that the driver of the Truck insured with the appellant

Insurance Company had also lost control after first accident with the

pedestrian, therefore it clearly appears that even if the Truck was parked

with its signals on, yet the Truck insured with the appellant would have

dashed with the said parked Truck, more particularly since it appears as

noted hereinabove that the driver had lost his control. Thus, insofar as the

negligent aspect is concerned, in the considered opinion of this Court, no

fault could be attributed to the Truck insured with the respondent No.3

Insurance Company.

8. The decision of Hon'ble Division Bench of this Court in case of

National Insurance Company Vs. Varshaben Bharatbhai Gohil, reported in

2013 (1) GLR 405, relied upon by learned Advocate Mr. Raval, would not

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advance the cause of the appellant, more particularly since at Para No. 7

which is relied upon by learned Advocate Mr. Raval, the Hon'ble Division

Bench of this Court also mentioning that the Panchnama of the scene of the

incident hardly shedding any clear light on the position of the vehicles in the

said matter, as against which the Panchnama of the place of the accident in

the present matter, clearly shedding light on the position of the vehicles in

question, the said judgment would be of no avail.

9. Insofar as the submissions made by learned Advocate Mr. Raval with

regard to the disability, this Court agrees with the submissions of learned

Advocate Mr. Kakkad for the claimant, more particularly relying upon the

decision of the Hon'ble Apex Court in case of Raj Kumar (supra), where the

Hon'ble Apex Court has inter alia observed that effect and impact of

permanent disability on earning capacity of a person ought to be considered.

The observations of the Hon'ble Apex Court in case of Raj Kumar (supra)

at paragraphs No. 10 and 11 being relevant for the present purpose are

reproduced hereinbelow for benefit.

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of

C/FA/3302/2017 JUDGMENT DATED: 14/12/2022

economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."

10. A perusal of the above quoted paragraphs clearly reveals that the

Hon'ble Apex Court has inter alia observed that the effect of the permanent

disability on the future earning capacity of a person, has to be viewed from

the angle of the effect and impact of such permanent disability on the

person concerned. In the instant case, the permanent disability though

counted at 45% is on account of the fact that the respondent No.1-claimant

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has his right leg amputated below the knee and his left foot was completely

crushed. Thus, it is on account of such injuries that the learned Tribunal has

observed that though the permanent disability was 45%, but considering the

impact, the disability has on the claimant who was a driver, the same has to

be assessed at 100%. This Court is in agreement with the findings of the