New India Assurance Co. Ltd vs Hemanginiben Widow Of Gautam- ...
2022 Latest Caselaw 1084 Guj

      C/FA/2029/2007                             JUDGMENT DATED: 02/02/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2029 of 2007
                                     With
                       R/CROSS OBJECTION NO. 83 of 2008
                                      In
                         FIRST APPEAL NO. 2029 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                 NEW INDIA ASSURANCE CO. LTD.
                             Versus
    HEMANGINIBEN WIDOW OF GAUTAM- BHAI GUNVANTRAI & 5 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR SUNIL K SHAH(803) for the Defendant(s) No. 1,2,3,4
MS SUSHMA S SHAH(806) for the Defendant(s) No. 1,2,3,4
RULE UNSERVED for the Defendant(s) No. 5
SERVED BY AFFIX. (R) for the Defendant(s) No. 6
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                         Date : 02/02/2022
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

C/FA/2029/2007 JUDGMENT DATED: 02/02/2022

1. Present First Appeal is filed by the New India Assurance Company Ltd. challenging the impugned judgment and award dated 15.12.2006 passed by the learned Motor Accident Claims Tribunal (Aux), Ahmedabad (Rural), whereby the learned Motor Accident Claims Tribunal has partly allowed the claim petition. Feeling aggrieved and dissatisfied with the impugned judgment and award, the present appellant has preferred the First Appeal before this Court.

2. Following facts emerge from the record of the appeal:-

2.1 That the accident took place on 5.5.1996 at about 02.30 a.m. near Bagodara on national highway. It is the case of the original claimants that on that day, the deceased- Gunvantray Dave and his nephew-Paraskumar were returning from Bhavnagar to Ahmedabad in a Maruti Van bearing registration no.GUF - 2100. It is the case of the original claimants that the deceased was driving the said Maruti Van in a moderate speed and on correct side of the road. At that time, a luxury bus bearing registration no. GJ-1 V-2242 came from opposite direction being driven in a rash and negligent manner and dashed with the Maruti Van, as a result of which, the deceased- Gunvantray Dave sustained grievous injuries

C/FA/2029/2007 JUDGMENT DATED: 02/02/2022

and succumbed to the same and Paraskumar sustained fracture injuries. It is the case of the original claimants that the deceased was 41 years old on the date of the accident and was earning more than Rs.50,000/- per month and thereby, claimed compensation of Rs.30,00,000/-. The Tribunal, after appreciating the evidence on record, awarded total compensation of Rs.11,92,500/- along with 7.5% interest per annum with proportionate costs and interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellant-insurance Company has preferred this appeal.

3. The original claimants have also preferred Cross Objections in the present First Appeal and prayed for enhancement of the compensation on the ground that the income of the deceased was not properly considered and the interest rate awarded by the learned Tribunal is not in consonance with the Bank rates prevailing on the date of the accident. The appellant- insurance Company has mainly challenged the present appeal only on the ground of quantum.

4. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. Sunil Shah, learned advocate for the respondents - original

C/FA/2029/2007 JUDGMENT DATED: 02/02/2022

claimants and have perused the original record and proceedings.

5. Considering the facts involved in the present case and on perusal of the record and proceedings, the impugned judgment and award passed by the learned Tribunal is just and proper. The accident took place on 5.5.1996 and considering the fact that more than 23 years have passed and considering the ratio laid down by the judgments of the Hon'ble Apex Court in the cases of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, the impugned judgment and award is in consonance with the ratio laid down by the Hon'ble Apex Court and therefore, no interference is called for. Hence, we pass the following order:-

6. The present appeal is hereby dismissed. The impugned judgment and award passed by the learned Tribunal is hereby confirmed on the ground that the impugned award passed by the

C/FA/2029/2007 JUDGMENT DATED: 02/02/2022

learned Tribunal is just and adequate and therefore, the present appeal is hereby dismissed.

7. So far as the Cross Objections is concerned, the original claimants have not produced sufficient evidence before the learned Tribunal about the income of the deceased and merely on oral evidence, the original claimants have prayed that the amount awarded by the learned Tribunal is meager and therefore, the original claimants have prayed for enhancement. Considering the fact that the amount awarded by the learned Tribunal is just and proper and considering the recent prevailing interest rate in the Bank which is lower than 7.5%, the interest rate is to be remained unaltered and therefore, the discretion exercised by the learned Tribunal is just and proper and therefore, no interference is called for and hence, the Cross Objections is also hereby dismissed. However, there shall be no order as to costs. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Maulik