National Insurance Company Ltd vs Trusha Manojbhai Patel Minor
2022 Latest Caselaw 1838 Guj

     C/FA/3555/2014                               JUDGMENT DATED: 16/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3555 of 2014

                                   With
                      R/CROSS OBJECTION NO. 98 of 2015
                                     In
                        FIRST APPEAL NO. 3555 of 2014

                      FOR APPROVAL AND SIGNATURE:

              HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

2    To be referred to the Reporter or not ?                            Yes

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 LTD.
                                Versus
                TRUSHA MANOJBHAI PATEL MINOR & 4 other(s)
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Appearance:
MR HAMESH C NAIDU(5335) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4,5
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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

C/FA/3555/2014 JUDGMENT DATED: 16/02/2022

aggrieved and dissatisfied with the judgment and award dated

02.05.2014 passed by the Motor Accident Claims Tribunal (Aux.),

Vadodara in Motor Accident Claim Petition No. 1213 of 2003, by

which, the Tribunal has awarded Rs.3,24,000/- with 9% per annum

interest by holding Opponent Nos.2 and 3 liable and thereafter, the

claimants have filed cross-objections which is registered as cross-

objection No. 98 of 2015 in the present appeal, for getting amount of

Rs.2,76,000/- in addition to the amount awarded by the Tribunal.

2. Brief facts of the case are as under:

2.1 On 01.05.2003, minor claimant alongwith parents was going

to Vadodara from Nareshvar coming from Nareshvar to Vadodara on

the Scooter bearing registration No.GJ-7-AE-5467. The said Scooter

was being driven by Opponent No. 4-father of minor claimant.

When they reached near Hathinavada, Village Simari, a Jeep bearing

registration No.GJ-6-X-623 has come from the opposite direction in

rash and negligent manner and has dashed with the Scooter and due

to that the claimant as well his parents had fell down and had

received serious injuries. The claimant has taken treatment in the

Hospital of Dr. Rajeev Shah. She has received permanent disability

C/FA/3555/2014 JUDGMENT DATED: 16/02/2022

due to accident and therefore, the claimant has filed a claim petition

to get compensation under various heads like future loss of income,

pain, shock and suffering, attendance and special food, etc.

therefore, total Rs.6,00,000/- has been claimed towards

compensation.

2.2 The Tribunal has issued the summons to the opponents.

Opponent No.3-Insurance Company has appeared and has filed

written statement by denying the fact of the negligence of the driver

of Jeep, and has also disputed about the factum of loss of income as

well as age of the claimant. The insurance company has pleaded that

Jeep was not only negligent but also scooter has contributed in the

causing of the accident. The opponent has also raised the dispute of

breach of condition of the policy and therefore, prayed to dismiss the

claim petition.

2.3 The issues were framed by the Tribunal and oral deposition of

father of the claimant at Exh. 21 was recorded and other

documentary evidences like F.I.R. at Exh. 27, Panchnama at Exh.

28, Injury Certificate at Exh. 29, Discharge Card at Exh. 31,

Discharge Card and Bill at Exh. 37, Disability Certificate at Exh. 44,

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School Leaving Certificate at Exh. 45, R.C. Book of Jeep at Exh. 47,

Insurance Receipt of Jeep at Exh. 48, R.C. Book of Scooter at Exh.

49 and Insurance Policy of Scooter at Exh. 50 are also produced by

the claimants. The opponent-insurance company has also examined

its witness by way of deposition of Opponent No. 1 at Exh. 66 and

Insurance Company has also produced various documents like

driving licence of Opponent No.1 at Exh. 61, Smart Card of

Opponent No.1 at Exh. 71 etc.

2.4 The Tribunal after considering the submissions of the

respective parties has awarded Rs.4,05,000/-, with 9% per annum

interest from the date of application by holding Respondent Nos.1 to

3 are jointly and severally liable to pay Rs.3,24,000/- and Opponent

Nos.4 and 5 are jointly and severally liable to pay Rs.81,000/- as the

contributory negligence to the ratio of 80:20 between Jeep and

Scooter, respectively.

2.5 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 Insurance Company and the

claimant has also filed cross-objection for enhancement of the

C/FA/3555/2014 JUDGMENT DATED: 16/02/2022

amount awarded to her.

3. Learned advocate for the appellant-insurance company Mr.

Vishal Shah appearing on behalf of learned advocate Mr. Himesh C.

Naidu has submitted on mainly two counts, one is that the Tribunal

has materially erred in giving finding on issue No.2 by apportioning

contributory negligence which is 80% of driver of the Jeep and 20%

of driver of the Scooter, which, in his submission, looking to the

averments made in claim petition as well as from the Panchnama and

statement of the witness, it should be in the ratio of 50:50. He has

relied upon the judgment of Hon'ble Apex Court reported in AIR

2006 SC 1255 in the case of Bijoy Kumar Dugar Vs. Bidyadhar

Dutta and Ors. and has submitted that in the case of head on

collision of vehicles, driver of both the vehicles should be held liable

to have contributed equally to the accident and in the present case,

there is head on collision and therefore, equal contribution should be

apportioned. He has also submitted that the driver of the Jeep was

not holding valid and effective driving licence to drive the non-

transport vehicle, even though, the Tribunal has committed an error

in not exonerating insurance company from its liability, as there is

breach of conditions of the insurance policy by the insurer and

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finding of the Tribunal on this issue is erroneous and is required to

be interfered with. He has submitted that the Tribunal has otherwise

awarded just and proper amount in the calculation, except the

amount under the head of marriage which was Rs.50,000/-. He has

submitted that this amount can be included in non-pecuniary

compensation which is awarded by the Tribunal. Except this, he has

submitted that appeal of the Insurance Company may be allowed and

cross-objection filed by the claimant may be dismissed. He has not

submitted any other ground.

4. Per Contra, learned advocate Mr. M.T.M. Hakim for

respondent No.1-original claimant has submitted that the issue of the

contributory negligence is well discussed by the Tribunal. He has

also pointed out from the Panchnama at Exh.28 and deposition of

the witness that vehicle is met with accident on the centre of the road

which is having width of 20 feet and as per Panchnama, both the

vehicles were found damaged from front right side. He has also

submitted from the Panchnama that right back side of the Jeep was

also found damaged, the Scooter was found on the kachcha road in

its west and therefore, the Tribunal has rightly kept in mind the

vehicles, which is driven by the father of the claimant, i.e. Scooter-

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small vehicle, therefore, contributory negligence of the said vehicle

is considered to be 20% and the Jeep being large vehicle, the

contributory negligence of the Jeep is rightly considered to be 80%.

4.1 He has submitted that in view of catena of decisions, the

Tribunal should assess the negligence by keeping in mind the size of

the vehicle and also by considering the Panchnama, location of the

vehicle, etc. He has further submitted that there is no error

committed by the Tribunal in considering the negligence in the ratio

of 80:20. On the contrary, he has submitted that even 20%

negligence should be reduced to 10%. He has further submitted that

in respect to second contention about the driver of the Jeep is not

holding valid and effective driving licence, he has further submitted

that this issue is squarely covered by the judgment of Hon'ble Apex

Cout in the case of Mukund Dewangan Vs. Oriental Insurance

Company Ltd., reported in (2017) 14 SCC 663 where the Hon'ble

Apex Court has found that there is no requirement that the driver of

the vehicle must have driving licence of that particular class and

therefore, that issue is also not tenable. He has also pointed out from

the judgment that the Tribunal has also rightly considered the

judgment in the case of S. Iyyapan Vs. United India Insurance Co.

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Ltd. & Anr., cited at 2013 ACJ 1944, where the driver who was

holding the driving licence to drive light motor vehicle was also

entitled to drive light passanger carriage such as Motador, Taxi-Cab

etc. He has also pointed out that the Tribunal has rightly considered

the judgment reported in 2008 ACJ 721 in the case of National

Insurance Co. Ltd., Vs. Annappa Irappa Nesaria and therefore, he

has also submitted that insurance company has to prove that the

owner of the vehicle had knowledge of not having proper driving

licence of the driver and in spite of having such knowledge, the

owner has handed over vehicle to such driver, that issue is not

proved in the present case, as rightly discussed by the Tribunal and

therefore, he has also submitted that contention is also meritless.

4.2 He has further submitted that prospects of marriage should be

considered as Rs.2,00,000/- lakhs instead of Rs.50,000/- as the girl is

aged about 6 years old. As per the decision rendered in the case of

G. Ravindranath alias R. Chowdary Vs. E. Srinivas reported in

2013 (12) SCC 455. On the contrary, the Tribunal has considered

that aspect on the very conservative side. He has also submitted in

view of cross-objection that the non-pecuniary compensation should

be enhanced which is considered only Rs.2,30,000/- which can be at

C/FA/3555/2014 JUDGMENT DATED: 16/02/2022

least Rs.3,00,000/- looking to the injuries sustained by the claimant

and disability certificate is available on record. He has submitted that

Tribunal has rightly considered the amount under the head of

medical expenses and marriage prospects and therefore, he has

further submitted that actually loss of income should be awarded

which should be considered at least Rs.25,000/- in the facts and

circumstances of the present case and therefore, he has also

submitted that the Tribunal has rightly exercised its discretion under

Section 171 of Motor Vehicles Act, 1988 while awarding interest at

the rate of 9% per annum in the facts and circumstances of the

present case and therefore, the Tribunal has awarded lesser amount

than what should be awarded and therefore, he has prayed to

enhance the amount of compensation and also prayed to allow the

cross-objections and to dismiss the appeal filed by the insurance

company.

5. I have heard learned advocates for the respective parties and

have also perused the record and proceedings. I am in the agreement

of the reasons given by the Tribunal regarding the apportionment of

negligence. The Tribunal has discussed this issue in para 9(ii) and I

am completely in agreement with the finding that road having width

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of 20 feet and accident seems to be occurred as per Panchnama

somewhere in the middle of the road therefore, Scooter can be held

liable to the extent of 20%, looking to the size of the vehicle and it

can be presumed that Scooter could not have been driven in

excessive speed in comparison with the speed the Jeep. It is also

relevant to note that the size of the vehicle also matters while

considering the apportionment of liability. Jeep is bigger in size and

it is found that Jeep has not applied the brakes as brake-marks are

not found from the scene of accident. Therefore, Tribunal has rightly

apportioned liability of 20% of the Scooter and 80% of the Jeep and

the judgment which is cited at Bar in the case of Bijoy Kumar

Dugar (supra) where both the vehicles involved in the accident are

heavy vehicles and therefore, facts of that case cannot be applicable

to the case on hand and therefore, I found no substance in the

arguments of the learned advocate for the insurance company about

the apportionment of liability which should be to the ratio of 50:50

and not 80:20 as which is attributed by the Tribunal.

5.1 I have also considered the submissions regarding the driving

licence that the driver is holding driving licence to drive non-

transport vehicle which is clear from the copy of the licence at

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Exh.61, 69 and 71. He has got his driving licence of transport

vehicle on 03.05.2003 and therefore, factually, on 01.05.2003, the

driver of the Jeep was not holding driving licence to drive transport

vehicle but in view of the judgment rendered in the case of S.

Iyyapan (supra) and later judgment of Hon'ble Apex Court in the

case of Mukund Dewangan (supra) the reasons recorded by the

Tribunal on this issue is well founded and I concord with the

reasoning and therefore, there is no breach of condition which can be

found in the present case. Therefore, that contention of the insurance

company about the driver is not holding valid driving licence is also

rightly negatived by the Tribunal and I also found accordingly. I am

also in agreement to the finding recorded by the Tribunal.

5.2 The next aspect of considering the cross-objections, the

Tribunal has awarded non-pecuniary compensation to the tune of

Rs.2,30,000/- which is after considering the totality of the

circumstances and more particularly, the disablement could be in the

ratio of 30%. The claimant should get at least Rs.3,00,000/- under

the head of non-pecuniary compensation which the Tribunal has

granted Rs.2,30,000/-, so, that amount is required to be enhanced by

further awarding Rs.70,000/- under the head of non-pecuniary

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compensation. I found that the Tribunal has granted Rs.1,25,000

under the head of medical expenses which is found as per the

evidence available on record and therefore, that amount is just and

proper. I found substance in the submissions made by learned

advocate Mr. M.T.M. Hakim that under the head of loss of marriage

prospect, in view of the judgment rendered in the case of G.

Ravindranath alias R. Chowdary (supra), the amount should be

awarded Rs.2,00,000/- which the Tribunal has awarded Rs.50,000/-.

Therefore, I accept that contention as the claimant-girl is having age

of 6 years old at the time of accident and her prospects certainly

diminished to the certain extent and therefore, I found it just and

proper to award Rs.2,00,000/- under the head of loss of marriage

prospect, which was awarded by the Tribunal to the tune of

Rs.50,000/-. So, enhancement of Rs.1,50,000/- in that amount is

required. The actual loss of income to the parents of claimant was

not considered by the Tribunal. The Tribunal has also failed to

consider the attendance charges, special diet and transportation

charges as per the submission made by learned advocate Mr. Hakim

Rs.25,000/- under these heads should be awarded. I consider just and

proper to award Rs.10,000/- under the head of actual loss of income

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to the parents and Rs.10,000/- under the head of the attendance

charges, special diet and transportation charges in the facts and

circumstances of the present case. Therefore, total amount of

compensation as per abovementioned calculation would come to the

tune of Rs.6,45,000/-.After deducting 20% of the negligence of the

driver of the Scooter, now total amount would be payable is Rs.

5,16,000/-. Accordingly, the amount of Rs.1,11,000/- should be

additionally awarded after deducting 20% to the claimant in the

present appeal. Thus, there would be an addition of Rs.1,11,000/-

and therefore, there would be additional compensation of

Rs.1,11,000/- at the rate of 9% interest per annum from the

respondent Nos.1 to 3, jointly and severally.

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

6.1 The present First Appeal No.3555 of 2014 is dismissed and

the cross-objections No. 98 of 2015 in present First Appeal No.3555

of 2014 is allowed to the aforesaid extent, no order as to costs.

6.2 The cross-objection No.98 of 2015 in the First Appeal

No.3555 of 2014 is allowed by enhancing amount which is awarded

by the Tribunal of Rs.3,24,000/- to Rs.5,16,000/- and accordingly

C/FA/3555/2014 JUDGMENT DATED: 16/02/2022

additional amount of Rs.1,11,000/- with 9% per annum interest from

the date of filing of application by Respondent No.1 to 3 jointly and

severally, within a period of six weeks from the date of this order.

6.3 On depositing of such amount, the concerned Tribunal shall

disburse the amount to the claimant after due procedure, by way of

account payee cheque.

6.4 Record and Proceedings be sent back to the concerned

Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA