National Insurance Company ... vs Urvez Iqbalbhai Mira
2022 Latest Caselaw 1833 Guj

     C/FA/2011/2013                                  JUDGMENT DATED: 16/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 2011 of 2013


                         FOR APPROVAL AND SIGNATURE:


              HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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                     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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                      NATIONAL INSURANCE COMPANY LIMITED
                                     Versus
                         URVEZ IQBALBHAI MIRA & 2 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR. CR BUDDHADEV(6707) for the Defendant(s) No. 3
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 16/02/2022

                                ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles

Act, 1988, is preferred by the appellant-Insurance Company, being

aggrieved and dissatisfied with the common judgment and award

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

dated 10.04.2013 passed by the Motor Accident Claims Tribunal

(Main), Rajkot in Motor Accident Claim Petition No. 434 of 2007,

by which, the Tribunal has awarded Rs.7,28,640/- with 8% per

annum interest from the date of filing of application by holding

Opponent Nos.1 and 2 liable.

2. Brief facts of the case are as under:

2.1 On 18.02.2007 at about 4:30 p.m., the claimant-Urvez

Iqbalbhai Mira, being a pillion rider, was going by Honda Bike

bearing registration No.GJ-3-AG-3752 and when he reached near

sign board of Village-Jambudiya at Morbi-Wankaner Highway, the

Truck bearing registration No.AP-16-TW-6186 came from back side

in rash and negligent manner and dashed with Bike. As a result,

pillion rider of the bike as well as rider of bike-Yunusbhai Satarbhai

Sodha fallen down and received grievous injuries. The claimant-

Urvez Iqbalbhai Mira got injuries over his both the legs. Thereafter,

he had admitted in the Hospital of Dr. Badal Gorasia and his left leg

below knee was amputated and he had to suffer much pain, shock

and agony and incurred huge amount towards medicines,

transportation and attendance. At the time of accident, the claimant-

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

Urvez Iqbalbhai Mira, aged about 21 years old, was earning

Rs.10,000/- p.m. by doing job of cloth hawker. Thereafter, he has

filed an F.I.R. which is exhibited at Exh.38 and thereafter, charge-

sheet has been issued against the driver of the Truck at Exh.45.

2.2 It is the case of the Claimant that his disablement was assessed

to the extent 45% by Dr. Badal Gorasia and Certificate was also

issued by Civil Hospital to the extent 25% of disablement. He has

also incurred expenses towards medical about Rs.1,07,822/- and

therefore, he has filed a claim petition to get the compensation of

Rs.15,00,000/- on various counts.

2.3 The Tribunal has issued notices to the Opponents and

Opponent No.2-Insurance Company has contested the claim through

his advocate and has filed his written statement by alleging that the

said accident is occurred due to rash and negligent driving the rider

of the Bike-Yunusbhai Satarbhai Sodha and Insurance Company has

also disputed on the other aspects also.

2.4 The issues are framed at Exh.25 Claimant-Urvez Iqbalbhai

Mira has deposed vide Exh.29 and driver of the concerned Honda

Bike-Yunusbhai Satarbhai Sodha has deposed vide Exh.30 before

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

the Tribunal. The documentary evidences are exhibited like vide the

F.I.R. Exh.38, Panchnama Exh.40, Driving Licence of Tanker driver

Exh.41, R.C. Book of Tankar driver Exh.42, charge-sheet Exh.45,

Treatment Certificate of Dr. M.M. Dolakia Exh.47, the Treatment

Certificate of Urvezbhai, issued by Dr. Rupala Exh.52, copy of

Treatment Certificate of Urvezbhai issued by Dr. Gorasia Exh.53,

Permanent Treatment Certificate of Urvezbhai issued by Dr. Badal

Gorasia Exh.55, Medical Bills Exh.56, School Leaving Certificate of

Urvezbhai Exh.58.

2.5 The Tribunal, after considering the oral and documentary

evidence, has awarded Rs.7,28,640/- with 8% p.a. interest to the

claimant before this Court.

2.6 Being aggrieved and dissatisfied with the above finding on the

aspect of quantum as well as liability of the Insurance Company, the

present First Appeal is preferred by the appellant-Insurance

Company.

3. Learned advocate for the appellant-Insurance Company Mr.

Maulik J. Shelat has contended that appellant-Insurance Company

has filed the present Appeal for limited amount of Rs.2,00,000/-,

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

more particularly, by challenging the award under the medical bills

which is Rs.1,75,000/-, which should be as per bills Rs.1,07,822/-.

He had also tried to submit that the income of the claimant is

assessed to Rs.3,500/- p.m., which should be on lower side i.e.

Rs.2,000/- p.m. He has further contended that under the head of

expectation of life, though the Tribunal has awarded other amount

under the different heads like pain, shock and suffering, loss of

amenities, etc., under the head of loss of expectation of life, such

amount of Rs.1,00,000/- cannot be awarded and therefore, the

Tribunal has committed an error in awarding exorbitant amount to

the claimant. Therefore, he prays to allow the appeal to the

abovementioned extent by modifying the impugned judgment and

award.

4.1 Per Contra, learned advocate for the claimant Mr. Hemal Shah

has contended that the Tribunal has rightly awarded the amount

towards medical expenses as bills of Rs.1,07,822/- are produced, but

left leg is amputated below the knee and looking to the disability

certificate, issued by the medical expert produced on record, the

amount under the head of treatment, medicines and hospitalization

of Rs.1,75,000/- is calculated on conservative side, but in any case,

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

that amount is required to be granted in the facts and circumstance of

the present case. He has also submitted that the Tribunal has not

committed any error by awarding Rs.1,00,000/-towards loss of

expectation of life, in the facts of the present case, where the young

boy, aged about 21 years old, received grievous injuries due to

accident and his left leg below knee has been amputated. However,

he has further contended that looking to the overall circumstances,

appropriate reduction in the awarded amount can be made by

considering the position of law, Except this, both the learned

advocates have not argued on any other ground or any other point

before this Court.

5.1 I have heard the learned advocates for the respective parties

and have considered the documentary evidence available on record. I

found that the claimant was aged about 21 years old at the time of

accident, he has to undergo various surgeries and ultimately, he has

been amputated his left leg below the knee. His disablement is

assessed to the extent 45% by Dr. Badal Gorasia and 25% by the

Civil Hospital as handicap. It is also relevant to note that applicant

has incurred huge medical expenses and he produced the bills for

medical expenses of Rs.1,07,822/-. I have also considered the

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

discussion by the Tribunal in para 16 to 19 of the impugned

judgment, I found no illegality or infirmity committed in the said

finding of the Tribunal and the Tribunal has rightly considered the

amount, which was required to be granted in addition to the medical

bills available on record. Accordingly, Rs.1,75,000/- towards

expenses relating to treatment hospitalization, medicine and also

future expenses towards replacement of artificial leg is awarded.

Therefore, I found that there is no error committed by the Tribunal in

awarding such amount.

5.2 Now, considering the second contention about awarding

Rs.1,00,000/- towards loss of expectation of life is concerned, it is

found proper in the context that when the Tribunal has considered

this amount under the heads of future loss of income, medical

treatment and medicines, pain, shock and suffering, loss of

amenities and under other heads, it is not found proper that amount

is of Rs.1,00,000/- is also required to be awarded under the head of

loss of expectation of life. This part is required to be considered as

the Tribunal has committed an error in awarding amount of

Rs.1,00,000/- towards of loss of expectation of life without any valid

ground for awarding such amount and I found in the second

C/FA/2011/2013 JUDGMENT DATED: 16/02/2022

contention that Rs.1,00,000/- is wrongly awarded under the head of

loss of exception of life in the facts and circumstances of the present

case. Therefore, the amount which is awarded by the Tribunal of

Rs.7,28,640/-, is required to be modified by reducing Rs.1,00,000/-

which now comes to Rs.6,28,640/- with 8% p.a. is required to be

awarded to the claimant, which would meet the ends of justice.

6. With the above observations, the following order is passed:

6.1 The present First Appeal No. 2011 of 2013 is partly allowed to

the above extent by reducing amount from Rs.7,28,640 to

Rs.6,28,640 with 8% p.a. interest , with no order as to costs.

6.2     The award is modified to the above extent.


6.3     The amount of Rs.1,00,000/-, with proportionate interest, shall

be paid back to the appellant-Insurance Company and remaining

amount of Rs.1,00,000/-, with proportionate interest, shall be paid

to the claimant within a period of six weeks from the date of this

order, by concerned Tribunal, after due procedure, by account

payee cheque.

6.4     Any other amount pursuant to the award of the Tribunal, if





       C/FA/2011/2013                         JUDGMENT DATED: 16/02/2022

any, lying in FDR and/or with the Tribunal, shall also be paid to the

claimant in addition of abovementioned amount, within a period of

six weeks from the date of this order.

6.5 Record and Proceedings be sent back to the concerned

Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA