Gujarat High Court
The Oriental Insurance Co. Ltd vs Hetalben Alpesh Makwana on 28 January, 2022
Bench: Niral R. Mehta
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2737 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 2737 of 2021
With
R/FIRST APPEAL NO. 3084 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy 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 ?
==================================================
THE ORIENTAL INSURANCE CO. LTD.
Versus
HETALBEN ALPESH MAKWANA
==================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR SHUSHIL R SHUKLA(5603) for the Defendant(s) No. 1,2,3,4,5
MS RINI S SHUKLA(11374) for the Defendant(s) No. 1,2,3,4,5
RULE UNSERVED for the Defendant(s) No. 6,7
==================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
Page 1 of 14
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C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 28/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1) Being aggrieved and dissatisfied with the judgment and
award dated 15.03.2021 passed by the Motor Accident Claims
Tribunal (Aux) & Additional District Court, Kheda at Nadiad in
Motor Accident Claim Petition No. 379 of 2014, the Insurance
Company has preferred the captioned first Appeal under
Section 173 of the Motor Vehicles Act, 1988 (" the Act", for
short) and the claimant has also preferred the First Appeal No.
3084 of 2021 for enhancement.
2) The following facts emerged from the records are that:-
[2.1] The accident has occurred on 21.03.2014 on the National
Highway near Piplag village. The records indicate that
deceased-Alpesh Makwana was driving his scooter bearing
registration No. GJ-07-BS-7861 on the correct side of the road
at a slow speed and while he was passing through the National
Highway No. 8 near Piplag village,a Truck bearing registration
No. GJ-01-CV-3721 was being driven in full speed and in
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
negligent manner and dashed with the Scooter. Because of
which, deceased sustained serious injuries and was admitted to
the Mahagujarat Hospital at Nadiad where he was given
primary treatment, and thereafter, he was shifted to Zydus
Hospital, Anand for further treatment where he died. The FIR
was lodged at the jurisdictional police station and the claim
petition was filed under Section 166 of the Act, 1988 and
compensation to the tune of Rs.1.50 Crore was prayed for.
[2.2] It was the case of the claimants that the deceased was of
35 years old and was dealing in the business of Iron in the
name and style of Sukh Sagar steel Traders and was earning
Rs.8,54,805/- per annum. The claimants have relied upon the
deposition of Hetalben Makwana, one of the claimants, at
exhibit 30 and Sainan Kamleshkumar Shah, the Accountant at
exhibit 37 and has also relied upon the following documentary
evidences:-
Sr. No. Particulars Exhibit
year 2011-12 with audit report
year 2012-13 with audit report
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
year 2013-14 with audit report
deceased
Hospital Nadiad
deceased
Panchayat, Piplag
Piplag
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
3) The Tribunal, after considering evidence on record, more
particularly, the charge-sheet and the panchanama at exhibit
59 and 60 respectively, came to the conclusion that the driver
of the truck was solely negligent. The Tribunal has considered
the aspect that the truck itself is a bigger vehicle in size and
came to the conclusion that the driver of the truck should
have been more careful. Relying upon the ITRs at exhibits 56
to 58 and also considering the oral deposition of the
accountant, the Tribunal has assessed the monthly income of
the deceased at Rs.38,855/- per month and after considering
prospective income, as per the judgment of the Honourable
Apex Court in the case of the National Insurance Company
Limited Versus Pranay Sethi and Ors., reported in (2017) 16
SCC 680, has applied multiplier of 15 and awarded a sum of
Rs.73,43,640/- as loss of dependency.
4) The Tribunal, further following the decision of the
judgment of the Apex Court in the case of the United India
Insurance Co. Ltd. Versus Satinder Kaur @ Satwinder Kaur &
Ors., reported in AIR 2020 SC 3076, has awarded a spousal
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
consortium to wife as well as parental consortium to each of
the 3 children & Filal Consortium and thus, while partly
allowing the claim petition, awarded total compensation of
Rs.77,02,640/- with 9% interest per annum from the date of
application till realization.
5) Being aggrieved and dissatisfied with the above, First
Appeal No. 2737 of 2021 is filed by the Insurance Company,
whereas, First Appeal No. 3084 of 2021 is filed by the original
claimant for enhancement.
6) Heard Mr. Ranthin Raval, the learned advocate appearing
for the Insurance Company in both the appeals and Mr.
Shushil Shukla, the learned advocate appearing for the original
claimants in both the appeals.
7) Mr. Ranthin Raval, the learned advocate appearing for
the Insurance Company has contended as under:-
[7.1] Referring and relying upon the cross examination of the
original claimant Hetalben at exhibit 30, it was vehemently
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
submitted by Mr. Raval that the Tribunal has committed an
error in coming to the conclusion that the driver of the truck
alone was solely negligent. According to Mr. Raval, the
negligence of the deceased should have been considered as the
road was narrow and the construction work of the road was
going on.
[7.2] It was also contended by Mr. Raval that no permit was
produced by the owner.
[7.3] Relying upon the judgment in the case of Amrit Paul
Singh V Tata AIG General Insurance Co. Ltd ., reported in
2018(7) SCC 558 , it was contended by Mr. Raval that in
absence of the permit on record, the Insurance Company
deserves to be exonerated, may be with a rider that the
Insurance Company may pay first and then recover from the
owner.
[7.4] It was lastly contended by Mr.Raval that as the accident
is of the year 2014, the Tribunal has considered higher rate of
interest and it should be reduced to 6%. On the aforesaid
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
grounds, it was contended by Mr. Raval that the appeal filed
by the Insurance Company deserves to be allowed. Mr. Raval,
further submitted that the cross appeal filed by the original
claimant is merit-less. It was contended by Mr. Raval that the
grounds raised that the Income Tax should not be deducted,
the said contention is well covered by the judgment in the
case of Pranay Sethi (Supra), which provides that the income
would mean income - tax.
[7.5] Mr. Raval, contended that as the Tribunal has already
considered a spousal consortium as well as the parental
consortium, the claimants are not entitled to any rise of 10%
as claimed by the original claimants in their appeal. Mr.
Raval, therefore, contended that the appeal filed by the
original claimants being merit-less deserves to be dismissed.
[7.6] Mr. Raval, in fact, has also invited the attention of this
Court to ground T of the memo of the appeal, wherein other
grounds are also raised.
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
8) Per contra, Mr. Shukla, the learned advocate appearing
for the claimants submitted that the Tribunal has rightly
considered the evidence on record and has correctly come to
the conclusion that the driver of the truck alone was negligent.
[8.1] Mr. Shukla, contended that only because the owner has
not produced the permit, the claimants cannot be blamed for it
and the Insurance Company cannot be exonerated on such a
ground.
[8.2] Mr. Shukla also contended that the Tribunal has rightly
awarded 9% interest which correspondens to the Bank rate for
the year 2014. Mr. Shukla contended that all grounds raised by
the Insurance Company are merit-less and appeal deserves to
be dismissed.
[8.3] Mr. Shukla, further contended that both the grounds
raised by the claimants in their appeal deserves to be
considered and appropriate modification is required to be made
in the judgment and award. Mr. Shukla, thus submitted that
the appeal filed by the claimants deserves to be allowed and
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
the appeal filed by the Insurance Company deserves to be
dismissed.
9) No further and other submissions have been made by the
learned advocates appearing for the respective parties.
10) Having considered the submissions made and perusal of
the original records and proceedings, we would first deal with
the grounds raised in ground T of memo of appeal.
11) It is weakly contended by the Insurance Company that
the deceased was not wearing a helmet. The negligence of
deceased ought to have been considered, deserves to be
rejected outright. It is also contended in the said ground that
the deduction of expenses ought to be 1/3 as the father and
mother cannot be considered as dependents also deserves to be
negatived as there is no evidence to show that the father and
the mother were not dependent. The other grounds including
the ground of no interest on future prospects and that the
amount of fixed assets and stocks should be deducted from the
income also deserves to be negatived.
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
12) The three main grounds raised as discussed hereinabove
require closer scrutiny. Mr. Raval, appearing for the Insurance
Company referred to the cross examination of one of the
claimant Hetalben at exhibit 30. The said witness has stated
that the scooter belongs to some body else and it was also not
of the ownership of the deceased. Such statement alone cannot
mean that the deceased was not authorized to drive the
vehicle. It is not the case of the Insurance Company that the
deceased did not possess a valid license. As per the provisions
of Section 3 of the Act, 1988 what is required is a valid
license to drive a vehicle and not the ownership. On the
contrary, if the cross examination is read as a whole, we find
that the deceased had a " Hero Honda" bike in past, and
therefore, it cannot be gainsaid that the deceased was a
learner. Considering panchnama at exhibit 60 and charge-sheet
at exhibit 59, the fact remains that the charge-sheet has been
filed against the driver of the truck and the driver of the truck
has not been examined by the Insurance Company. The
accident has occurred on a national highway which admittedly
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
is of a bigger width, even if, half of the portion of the
highway was under use when the accident took place. This
Court cannot forget the fact that a huge truck dashed with
the scooter. Upon re-appreciation of the evidence on record
and considering the manner, in which the accident has
occurred and the place at which the accident has occurred,
clearly proves the fact that the accident occurred only because
of sole negligence of the driver of the truck, especially when
the evidence shows that the scooter was being driven at a slow
speed on the correct side by the deceased. The driver of the
truck, which is admittedly a huge vehicle, should have been
more careful when passing through a diversion type of road.
13) In light of the aforesaid, the findings given by the
Tribunal on negligence does not require any modification. The
other contentions raised by Mr. Raval as regards the permit is
not even raised before the Tribunal. Only because the owner
has not produced the permit, the same cannot be used as a
tool to escape from the liability of indemnifying the award.
There is nothing on evidence to show that the Insurance
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
Company made attempt before the Tribunal to compel the
owner to produce the permit and in the facts of this case, the
ratio laid down by the Apex Court in the case of Amrit Paul
Singh (supra) would not be applicable. As far as the interest is
concerned, we find that the Tribunal has exercised its
discretion in awarding 9% interest, which does not require any
interference. Similarly, both the grounds raised by Mr. Shukla,
the learned advocate appearing for the claimants, the appeal
filed by the Insurance Company also deserves to be negatived.
As held by the Apex Court in the case of Pranay Sethi (supra),
the income would mean gross income minus tax and therefore
Income tax paid has to be deducted. Similarly, as the
claimants have already been given consortium both spousal as
well as parental consortium and Filal Consortium, no case for
10% increase is made out.
14) On both grounds, the appeal filed by the claimants fail.
Consequently, both the appeals fail and are dismissed. The
impugned judgment and award dated 15.03.2021 passed by the
Motor Accident Claims Tribunal (Aux) & Additional District
C/FA/2737/2021 JUDGMENT DATED: 28/01/2022
Court, Kheda at Nadiad in Motor Accident Claim Petition No.
379 of 2014 shall remained confirmed. Record and proceedings
be transmitted to the Tribunal forthwith.
15) As the appeals are dismissed, connected civil application
for stay also stands disposed of accordingly. However, there
shall be no order as to costs.
Sd/-
(R.M.CHHAYA,J)
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
