Gujarat High Court
Oriental Insurance Company Ltd vs Kanubhai Chhababhai Baria on 16 February, 2022
Bench: Sandeep N. Bhatt
C/FA/3597/2013 JUDGMENT DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3597 of 2013
With
R/CROSS OBJECTION NO. 55 of 2015
In
FIRST APPEAL NO. 3597 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 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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ORIENTAL INSURANCE COMPANY LTD
Versus
KANUBHAI CHHABABHAI BARIA & 2 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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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 judgment and
C/FA/3597/2013 JUDGMENT DATED: 16/02/2022
award dated 02.08.2013 passed by Motor Accident Claims Tribunal
(Main), Narmada at Rajpipla in Motor Accident Claim Petition
No.94 of 2010, by which the Tribunal has awarded Rs.6,80,000/-
with 9% per annum interest, from the date of application to the
claimant, by holding Opponent Nos. 1 and 2 liable.
1.1 The claimants, being aggrieved and dissatisfied with the
amount awarded under various heads, has filed cross-objection
which is numbered as Cross-Objection No.55 of 2015 in the present
First Appeal under the provisions of Order 41, Rule 22 of Code of
Criminal Procedure, 1973, for enhancement of the award.
2. Brief facts of the case are as under:
2.1 On 11.11.2009, the applicant, with his friend Ashokbhai
Parsotambhai Bhil, was going on motorcycle bearing registration
No. GJ-22-5325 to village Tilakwada from village Vagheli and at
about 18:30 a.m. on Dabhia road, Opponent No.1 had come from
opposite side in rash and negligent manner by driving his three
wheeler Tempo bearing registration No.GJ-6-Y-9953 and had
dashed with the motorcycle, which had resulted into accident and the
claimant had fallen down from the motorcycle and sustained
C/FA/3597/2013 JUDGMENT DATED: 16/02/2022
grievous injuries. He has taken treatment in Pramukh Swami
Hospital, Dabhoi and further treatment in the Hospital of Dr.
Mahesh B. Patel at Vadodara, where due to further complications,
his right leg was amputated from knee. It is the case of the claimant
that at the time of accident, he was aged about 46 years old and was
serving as Government Teacher and acquiring salary of Rs.25,678/-
per month and due to the accident, he has received 100% permanent
partial disablement. Therefore, he has filed a claim petition to get
compensation of Rs.15,00,000/- under various heads.
2.2 The Tribunal has issued notice to the opponents. Opponent
Nos. 1 and 2 have appeared through their advocates and have filed
their common reply vide Exh. 8 and have contended that application
is not with correct facts and applicant himself is negligent for
causing such accident. He has further averred in the written
statement that the complainant was not an eye-witness of the
accident, but looking to the Panchnama, it can be presumed that
accident occurred due to negligence of claimant himself. It further
transpires from the record that Opponent No.3-Insurance Company
has appeared and filed its written statement vide Exh. 18, where it is
contended that the claim petition is misconceived and not tenable in
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law. It is also contended that the driver did not possess legal and
valid diving licence at the time of accident. It is contended that
looking to the F.I.R. and Panchnama, it is clear that no eye-witness
is examined and looking to the Panchnama, the accident is caused
due to negligence of the applicant himself and therefore, he has
submitted that this petition may be dismissed.
2.3. The Tribunal were framed the issues and has also recorded
oral and documentary evidence of the applicant himself at Exh.26.
Mr. Rajnikant Gordhanbhai Patel, Senior Clerk, RTO, Rajpipla was
examined by Opponent No.3 as well as Dr. Bakul Himmatbhai Patel,
Medical Officer, Vadodara was examined vide Exh. 73, Dr.
Naishadh Vasantbhai Parmar was examined vide Exh. 110 by the
complainant, Chhababhai Bhayajibhai Baria has filed on affidavit
vide Exh. 118, who was also cross examined by the Insurance
Company. The documentary evidences like F.I.R. at Exh. 29,
Panchnama at Exh. 30, Medical Certificate at Exh. 31, Medical Bills
and Receipts at Exh. 32 to 62, copy of driving licence at Exh. 97,
Certificate of driving licence issued by R.T.O at Exh. 96, copy of
R.C. Book of vehicle No. GJ-06-Y-9953 at Exh. 22, copy of Medical
Certificate at Exh. 115 and Disability Certificate at Exh. 36 etc. are
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the relevant documents which are also produced on record.
2.4 After considering oral and documentary evidence, the Tribunal
has awarded Rs.6,80,000/- with 9% interest p.a. from the date of
application by holding Opponent Nos.1 and 2 liable and it is further
directed that Opponent No.3-Insurance Company will pay the said
amount to the claimant, and then it can recover such amount from
the insured.
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. The
claimant has also filed cross objection for enhancement of the
amount awarded to him.
3. I have heard learned advocate Mr. Maulik J. Shelat for the
Insurance Company. He has contended that the driver of the vehicle
was not holding valid and effective driving licence to drive the
vehicle and has relied upon the judgment of Hon'ble Apex Court
reported in (2008) 8 SCC 253 in the case of New India Assurance
Co. Ltd. v. Roshanben Rahemansha Fakir as well as another
judgment reported in (2006) 4 SCC 250 in the case of National
C/FA/3597/2013 JUDGMENT DATED: 16/02/2022
Insurance Co. Ltd. v. Kusum Rai and has submitted that the liability
cannot be fastened on the Insurance Company. He has further
submitted that the Tribunal has erred in awarding lump sum
compensation of Rs.4,00,000/- without giving proper head. He has
further contended on the aspect of quantum also. Therefore, he has
submitted that the appeal of the Insurance Company may be allowed
by holding that the Insurance Company is not liable to pay the
amount of compensation.
4. Per contra, learned advocate Mr. Mohsin M. Hakim for
original claimant has contended that the issue of the driving licence
is covered by the judgment rendered in the case of Mukund
Dewangan vs. Oriental Insurance Company Ltd., reported in AIR
2017 SC 3668. He has further contended that Insurance Company
cannot escape from its liability to pay the amount of compensation,
however, the Tribunal has protected the right of Insurance Company
in the impugned judgment by directing that the Insurance Company
can pay first and recover from the insured and therefore, no
interference on this count is required by this Court while considering
the appeal. He has also contended that he has filed the cross-
objections to get more compensation. He has pointed out from the
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various judgments of Hon'ble Apex Court that the claimant can get
some more amount under the various heads. He has further
contented that looking to the Panchnama etc., the negligence
attributed to the extent of 80% to the driver of the other vehicle and
20% of the claimant is also not proper. Therefore, he prays to
consider his submissions and modify the award passed by the
Tribunal.
5.1 I have considered the submissions made by the respective
parties and have perused the record and proceedings available with
this Court. I have also gone thorough the impugned judgment of the
Tribunal. On the aspect of valid and effective driving licence, I
found that the Tribunal has not given convincing reasons, but now
the controversy is squarely covered by the judgment of Hon'ble
Apex Court in the case of Mukund Dewangan (supra), by which the
holding of driving licence of the driver of the vehicle is now not
required to be discussed further and now in view of that judgment,
the controversy regarding legal, valid and effective driving licence
at the time of accident possessed by the concerned driver, need not
require to be considered. Therefore, the submissions made by
learned advocate Mr. Shelat for the Insurance Company fails and
C/FA/3597/2013 JUDGMENT DATED: 16/02/2022
found to be ineffective in the present appeal.
5.2 The other contention raised by both the learned advocates
regarding contributory negligence, it transpires from the Panchnama
and F.I.R. that the Tribunal has rightly considered the liability of
both the vehicles and more particularly, looking to the cross-
examination of the injured claimant, I found that the Tribunal has
rightly attributed 20% of the negligence on the part of claimant and
80% negligence of the driver of the other vehicle.
5.3 Now, the another aspect that disability which is assessed 40%
and the Tribunal has also considered disability 40% as permanent
disability caused due to accident and after considering that the
Tribunal has rightly come to the conclusion to award the
compensation but the amount of lump sum compensation of
Rs.4,00,000/- which is awarded towards future loss of income to the
claimant is found on lower side, as at least Rs.6,00,000/- of income
is required to be awarded under the head of future loss of income.
Therefore, lump sum additional amount of Rs.2,00,000/- is required
to be enhanced under the head of future loss of income, which would
meet the ends of justice.
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5.4 For other factors where the Tribunal has awarded
compensation under other heads for future medical treatment of
Rs.2,00,000/-, transportation and attendance charges Rs.10,000/-,
Rs.40,000/- for the pain, shock and suffering and etc., Rs.1,50,000/-
for medical bills are found to be reasonable, just and proper in view
of the evidence available on record, but Rs.50,000/-only is awarded
towards loss of amenities, which I found that this amount is very
meagre, at lease Rs.1,00,000/- should be awarded for loss of
amenities. Therefore, total enhancement in the awarded amount
would be Rs.2,50,000/- and after deducting the contributory liability
of the claimant himself to the extent, 20%, Rs.50,000/- is required
to be deducted from additional amount of Rs.2,50,000/-. Therefore,
further enhancement of Rs.2,00,000/- is required to be awarded
additionally by the Tribunal, which would meet the ends of justice.
6. With the above observations, the following order is passed:
6.1 First Appeal No. 3597 of 2013 filed by the Insurance
Company is dismissed with no order as to costs.
6.2 Cross-Objection No. 55 of 2015 in First Appeal No. 3597 of
2013 is partly allowed to the aforesaid extent.
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6.3 The impugned judgment and award is modified to the extent of
Rs.2,00,000/- is additionally awarded to the claimant with 9% p.a.
interest, as noted above, holding original opponent Nos. 1 & 2
liable, jointly and severally.
6.4 The Insurance Company shall deposit the said additional
amount of Rs.2,00,000/- to the claimant, with 9% p.a. interest, from
the date of claim petition till its realization, within a period of six
weeks from copy receipt of this order and then it can recover from
Opponent Nos. 1 & 2.
6.5 On depositing of such amount, the concerned Tribunal shall
disburse the entire amount to claimant indicating earlier lying in
FDR or lying with the Tribunal by following due procedure, by way
of account payee cheque, after proper verification.
6.6 Record and Proceeding lying be sent back top the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
