New India Insurance Company Ltd vs Somabhai Dhirubhai Vaghela Alias ...
2022 Latest Caselaw 1836 Guj

      C/FA/3598/2013                                ORDER DATED: 16/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3598 of 2013

                                     With

                       R/CROSS OBJECTION NO. 12 of 2016
                                      In
                         FIRST APPEAL NO. 3598 of 2013

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             NEW INDIA INSURANCE COMPANY LTD
                           Versus
      SOMABHAI DHIRUBHAI VAGHELA ALIAS VANKAR & 2 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Insurance Company
MR MOHSIN M HAKIM(5396) for the Claimants
RULE SERVED for the Defendant(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 16/02/2022

                                ORAL ORDER

1.1 First Appeal No.3598 of 2013 is filed under Section 173 of the Motor Vehicles Act, by the appellant - Insurance Company, being aggrieved by and dissatisfied with the judgment and award dated 31.07.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claim Petition No. 1332 of 2011, by which, the claim petition of the claimant is partly allowed, holding opponents No.1 and 2 i.e. driver-cum-owner and insurance company liable to pay the compensation of Rs.3,51,750/- with 9% per annum interest, jointly and severally to the claimants.

1.2 The claimants have filed Cross Objection No.12 of 2016 in First Appeal No.3598 of 2013 for enhancement of the said award dated 31.07.2013 before this Court.

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2. Brief facts of the present case are that, on 13.11.2011, the deceased - Bhupendrakumar @ Bhaveshbhai S. Vaghela (Vankar) was going on his motorcycle bearing registration No.GJ-6-DP-5292 and while reaching near Jupiter Cross Roads, GIDC Road, one Indigo Car bearing registration No.GJ-6-BL-5075 came with rash and negligent manner and dashed with the motorcycle at its back side. Due to that, the deceased received injuries and ultimately, he succumbed to the said injuries. He was unmarried. The claimants are his parents. They have filed a claim petition before the Tribunal claiming compensation of Rs.11 lakhs. Notices were served to the opponents - driver-cum-owner of the car and the insurance company of the car. The insurance company has filed its written statement and denied the claim of the claimants. Thereafter, the Tribunal has framed the issues at Exh.14. Oral and documentary evidence were led before the Tribunal, as mentioned in Para 8 of the impugned judgment. The opponents have produced many documents on record of the Tribunal as mentioned in Para 9 of the impugned judgment. After hearing the submissions of the rival parties and after considering the same, the Tribunal has passed the impugned award noted above. Hence, the appeal as well as the cross objection before this Court.

3. Learned advocate Mr. Palak Thakkar for the appellant - Insurance Company has submitted that the Tribunal has grossly erred in not holding the deceased liable for contributory negligence on his part. He has submitted that the Tribunal ought not to have held that the insurance company was negligent to the extent 50%. He has further submitted that from the photographs of Indigo Car produced on record by which it is established that the accident has occurred due to contributory negligence of the deceased. The

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photographs also indicate that the left portion of the car got damaged, by which it is established that the motorcycle of the deceased dashed with the car on the left side and therefore, the Tribunal has erred in holding that the driver of the car is solely negligent. From the panchnama, he has submitted that the left portion of the c ar got damaged due to the accident, therefore, the Tribunal ought to have held that the accident occurred due to the negligence of the deceased. He has also submitted that the Tribunal has erred in assessing monthly income of the deceased to the tune of Rs.4,500/- which should be Rs.3,000/-. He has submitted that the Tribunal has erred in adopting multiplier of 17, which should be 13 looking to the age of parents. He has submitted that as the accident has occurred near the cross-roads in the city of Vadodara and as the motorcycle is dashed with the car from the left side, deceased himself was trying to overtake from the wrong side of the car and therefore caused accident. Therefore, he has submitted that the deceased should be held liable for causing the accident and the Tribunal has wrongly fastened the liability on the driver of the car and insurance company. Therefore, he has submitted that this appeal may be allowed on this count only.

4. Per contra, learned advocate Mr. Hakim for the claimant has submitted that the Tribunal has rightly found that both the vehicles are negligent to the extent 50-50. In fact, he has submitted that if we look at the situation at the place of accident and from the panchnama, it clearly indicates that though the motorcycle is dashed with the car from the left side, but it seems that at cross-roads, while car is trying to take turn, the accident has occurred by heating back side of the motorcycle by the car. Further, looking to the conduct of the car driver, who immediately rushed to the police station without helping the injured (deceased) and shifting him to the hospital and

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has also taken photographs of his car at police station, by which he has avoided panchnama of the place of accident by removing his car from there and therefore, on that count only, the driver of the car should be held negligent for more than 50%, even then, the Tribunal has held negligent to the extent 50-50 of both the vehicles. He has also submitted that he has also filed cross-objection in the appeal for enhancement of the awarded amount, as he has submitted that the parents are there and they will get the filial consortium of Rs.80,000/- plus Rs.15,000/- towards funeral expenses in view of the latest judgment of Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130. He has submitted that the Tribunal has awarded future prospective income and multiplier which is on lower side. He has submitted that the appeal of the Insurance Company may be dismissed and the cross-objection of the claimants may be allowed.

5.1 I have heard learned advocates for the respective parties. I have considered the pleadings of the parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is clear from the evidence available on the record, where driver of the vehicle - eye witness is examined as witness. He has tried to narrate his case as if motorcyclist dashed with the car in more speed, but even then the Tribunal has considered negligence of 50% of each vehicle i.e. car and motorcycle. The Tribunal has considered panchnama where the Tribunal has considered that the road of the incident was straight road, near to a four square and the circle, therefore in such places, generally, all the vehicles are supposed to to be much slow and in such circumstances, the drivers of every vehicles has to be much careful while overtaking the other vehicles. and looking to the impact received to the motorcycle, where his

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helmet also broken down and he has received serious head injuries and more particularly, the driver of the car has not waited for any medical assistant to the motorcyclist and he has straightway rushed to the police station, just to create a situation that he is innocent and he has also taken photographs of his car by showing that the motorcycle has damaged left side of the car. This conduct also shows that the driver of the car has also contributed at large, when the vehicle is near cross-roads and there is circle also and that too in the city area, then it is also expected that the vehicles should be driven in very slow speed. Here, looking to the impact caused to both the vehicles, it seems that both the vehicles are in some more speed and due to that, they could not control their vehicles and therefore, the accident has occurred. Therefore, it is needless to say that the finding of the Tribunal by apportioning the liability to the extent 50-50 by both the vehicles are just and proper and on the contrary, the car is bigger vehicle and therefore, more percentage of negligence could have been attributed in the facts and circumstances of the present case. But in absence of any further evidence, this Court finds that the finding of the Tribunal regarding negligence part is proper in the facts of this case and as per the evidence available on record.

5.2 Now, considering the submission regarding cross-objection filed by the claimant in this appeal, for enhancement in the awarded amount, this Court finds that the filial consortium should be awarded more, looking to the peculiar facts of the present case and in view of the judgment of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra) noted above. Therefore, Rs.80,000/- towards filial consortium is required to be awarded. In addition to that, Rs.15,000/- towards funeral expenses is also required to be awarded as in the present case, the Tribunal has

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awarded Rs.5,000/- only. Accordingly, if the award impugned is required to be modified by adding Rs.7,93,000/- which would be the total amount of compensation. Out of which, 50% liability of the deceased is deducted, so it would be Rs.3,96,500/- is the amount payable to the claimants, which would meet the ends of justice. The Tribunal has awarded Rs.3,51,750/- to the claimants, therefore, Rs.44,750/- is required to be awarded additionally pursuant to the cross-objection filed by the claimants with 9% interest per annum from the date of filing the claim petition till its realisation. The appeal of the insurance company is accordingly required to be dismissed and the cross-objection of the claimant(s) is required to be partly allowed to the aforesaid extent.

6. For the reasons recorded above, the following order is passed.

6.1 First Appeal No.3598 of 2013 filed by the Insurance Company is dismissed, with no order as to costs.

6.2 Cross-objection No.12 of 2016 in First Appeal No.3598 of 2013 filed by the claimant(s) is allowed to the aforesaid extent.

6.3 The Insurance Company is directed to deposit additional amount of Rs.44,750/- before the concerned Tribunal, with 9% interest per annum, from the date of filing the claim petition till its realization, within a period of six weeks from the date of receipt of this order.

6.4 The Tribunal is directed to pay the entire awarded amount (including the amount above stated above), with accrued interest thereon if any, lying with it and/or lying in the FDR, as per the order of this Court if any, to the claimant(s) by account payee cheque, after

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proper verification and after following due procedure.

6.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE