Iffco-Tokio Gen Ins Co Ltd vs Kanchanben D/O Kansinh ...
2022 Latest Caselaw 2782 Guj

     C/FA/180/2011                               CAV JUDGMENT DATED: 11/03/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 180 of 2011

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 ?

================================================================ IFFCO-TOKIO GEN INS CO LTD Versus KANCHANBEN D/O KANSINH CHATURSINH SOLANKI & 7 other(s) ================================================================ Appearance:

MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1 MR AMIT C NANAVATI(1384) for the Defendant(s) No. 1,2,3,4,5 MR PS CHAMPANERI(214) for the Defendant(s) No. 7 RULE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7,8 ================================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 11/03/2022

CAV JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant-Iffco Tokiyo General Insurance Co. Ltd. (Original Opponent No.1), being aggrieved and dissatisfied with the judgment and award dated 29.09.2010 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in

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Motor Accident Claim Petition No.1106 of 2006, by which the Tribunal has awarded Rs.3,73,000/- with 7.5% per annum interest to the claimants, by holding Opponent No.1 liable.

2. Brief facts of the case are as under:

2.1 On 11.08.2006 at about 5:00 p.m., deceased-Kansinh Chatursinh Solanki was going from Majra to Talod by driving the Hero Honda Motorcycle bearing registration No.GJ-9-AC-4936 and deceased - Kansinh Chatursinh Solanki was the pillion rider on the said Hero Honda Motorcycle. When they were passing on Majra- Talod Highway road, near turning at Ganeshpura village patiya, Opponent No.2-driver of the involved Jeep bearing registration No.GJ-5-N-6274 came by driving the Jeep in full speed with rashly and negligently and dashed with the said motorcycle, thus, the accident has occurred. Due to excessive speed, jeep ran down on the side of the cross road, and the motorcycle was thrown down on the other side of the road. Deceased - Kansinh Chatursinh Solanki sustained serious injuries at various parts of his body due to the accident and thereafter, got unconscious. He was immediately taken to Talod Hospital, and as advised by the doctors on duty, he was shifted to the Civil Hospital, Ahmedabad on the same day. He was admitted in the Civil Hospital, Ahmedabad, and on the same day i.e. on 11.08.2006, he succumbed to injuries during the treatment. At the time of accident, deceased was aged about 45 years old and was earning Rs.4,000/- p.m. by doing house contract business and animal husbandry work and therefore, the claim petition is filed under Section 166 of Motor Vehicles Act, 1988 by his heirs and legal representatives to get the compensation of Rs.4,00,000/-.

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2.2 The Tribunal has issued the notices to the opponents. Opponent No.1-Iffco Tokio General Insurance Company Ltd. has appeared through his advocate and has filed its written statement at Exh.31 denying the allegation and averments made in the claim petition. Opponent No.4 - owner of the involved Jeep has appeared through its advocate and has filed his written statement at Exh.36. By way of both the written statements, the respective opponents have denied all the averments made in the claim petition by the claimants.

2.3 The Tribunal has framed the issues at Exh.37 and thereafter, the deposition of widow of the deceased - Kansinh Chatursinh Solanki, claimant No.1 - Kanchanben was recorded at Ex.60 and she was cross-examined by the Opponent No.2-insurance company and Opponent No.4. The claimants have produced documentary evidence like; certified copy of F.I.R. at Exh.47, certified copy of Panchnama at Exh.48, certified copy of inquest Panchnama of the deceased- Kansinh Chatursinh Solanki at Exh.44, certified copy of injury certificate issued by Public Health Center, Talod at Exh.50, certified copy of P.M. Note of deceased at Exh.52, copy of insurance policy of involved motorcycle at Exh.66, certified copy charge-sheet at Exh.51 etc., on record.

2.4 After hearing learned advocates for the respective parties and after considering submissions, the Tribunal has awarded compensation of Rs.3,73,000/- with 7.5% p.a. simple interest from the date of filing of the claim petition to the claimants.

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 under Section 173 of the Motor Vehicles Act, 1988.

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3.1 I have heard Ms. Kirti Pathak for the appellant - insurance company. She has contended that the Tribunal has not considered that the said liability would incur only in case when the owner of the vehicle complied with the terms and conditions of the policy, which was not so in the present case. She has further contended that the Tribunal ought to have considered that the accident was caused due to contributory negligence wherein, the jeep driver was having larger contributory and ought to have apportioned liability as per specific shares and the Tribunal has erred in coming to the conclusion that accident was caused due to 75% negligence of the driver of the said motorcycle. She has further contended that adverse inference may be drawn against the driver of the Jeep, who, despite service of summons, has not stepped into witness box before the Tribunal. She has further contended that in the facts and circumstance of the case, the Tribunal has committed an error by holding the insurance company liable, wherein the driver of the insured vehicle himself is responsible for occurrence of accident. She has prayed to allow this appeal.

3.2 She has submitted that as per the decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680, Rs.15,000/-, Rs.40,000/- and Rs.15,000/- can be awarded towards loss of estate, loss of consortium and funeral expenses, respectively. She has submitted that considering the minimum wage as on 11.08.2006, the Tribunal has considered Rs.2,000/- per month and multiplier is also correct and therefore, quantum is found just nad proper and no further amount need to be awarded as no cross-objections are filed by the claimant for enhancement. Therefore, she has submitted that this appeal may be allowed by exonerating the insurance company looking to the facts and circumstances of the case.

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4.1 Per contra, learned advocate Mr. Amit C. Nanavati appearing for the claimants has submitted that the Tribunal has not committed any error in holding the insurance company liable and he has submitted that the Tribunal has not committed error in apportioning the liability to the Scooter to the extent of 75%. He has placed reliance on the decision of Hon'ble Apex Court rendered in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157 and has submitted that the future prospective income was not considered by the Tribunal. He has submitted that the Tribunal ought to have considered the compensation by considering the income, prospective income as well as age of deceased to award just compensation to the claimants. He prays that this Court can also consider that aspect for enhancement of compensation.

4.2 He has further contended that the Tribunal has failed to consider the aspect of loss of consortium as per the judgment of Hon'ble Apex Court rendered in the case of New India Assurance Company Ltd. Vs. Somwati & Ors. reported in 2020 SCC 644 and thereafter, he has further submitted that on these two counts, the Tribunal has failed to consider the appropriate amount for compensation, which this Court can certainly consider.

4.3 On the aspect of liability of the insurance company, he has pointed out from the record and proceedings of the Tribunal by showing the insurance policy produced at Exh.66, whereby the insurance policy indicates the covering of risk of the deceased. He has contended that the Tribunal ought to have considered this aspect by awarding reasonable compensation to the claimants. The Tribunal has rightly considered the liability of the insurance company. He has submitted that the present appeal may be dismissed.

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4.4 He has further contended from the impugned judgment that the deposition of Kanchanben - widow of deceased is also recorded at Exh.60 before the Tribunal, where she was also examined and cross- examined. He has further contended that the licence is not produced on record at the time of filing the claim petition, as the claimants are widow and children of the deceased, who are not much literate. Therefore, in absence of such document, it is duty of the insurance company to prove its case about invalid driving licence or driver was not holding driving licence, by examining the witness from the R.T.O. or by asking the relevant details about the licence from the R.T.O. That exercise is not carried out by the insurance company in the present case. He has relied on the observations of the Tribunal by which the Tribunal has relied on the judgment reported in 2005 I ACC 588 rendered in First Appeal No. 654 of 1995, our own High Court has has taken a view that though the driver of the insured vehicle is found negligent to even 100%, the insurance company is liable to pay the amount of compensation.

5.1 I have heard learned advocates for the respective parties. I have perused the impugned judgment and award passed by the Tribunal. I have gone through the averments made in this appeal. On reappreciation of evidence led by the Tribunal, I found that the Tribunal has not committed error in fastening the liability on original opponent Nos.1 and 2 (present appellant and respondent No.6) to pay the amount of compensation to the claimants, by calculating the amount of compensation under the various heads to the extent of their negligence to the extent 75%, which is assessed by the Tribunal.

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If we consider the aspect of negligence, which is discussed in para 15 and 16 of the impugned judgment, from the Panchnama of the place of accident, it reveals that there was head on collision on middle of the road. The Tribunal has also found that middle portion of the Jeep of front bumper got bend but the Tribunal has committed error by ignoring that fact. Therefore, I found that the driver of the Jeep is more negligent. Looking to the impact of the accident as Jeep is turned down on the road and the motorcycle has fallen on the other side of the road, the negligence which is attributed to the motorcycle to the extent 75% is proper looking to the Panchnama and FIR and negligence of the driver of the offending vehicle Jeep should be considered negligent to the extent 25% and I found no error in the findings given by the Tribunal. Moreover, the deceased was pillion rider and hence, the present case is of composite negligence of all the opponents in claim petition and also in view of the judgment of Hon'ble Apex Court in the case of Chandrakanta Tiwari V/s New India Assurance Company Limited and another reported in (2020) 7 SCC 386, the claimant should get just compensation.

5.2 It is also relevant to take note of the submissions made by the learned advocate for respondent claimant Mr. Nanavati that the learned Tribunal has not properly considered the quantum of compensation and further that the learned Tribunal has to award just and proper amount of compensation. After considering the submissions, it is found that the learned Tribunal has not awarded sufficient amount to the claimants. Since the claimants have not filed any cross appeal or cross-objections, I am of the opinion that in view of the decision of Hon'ble Apex Court in the case of Ranjana Prakash versus Division Manager reported in (2011) 14 SCC 639, where the Hon'ble Apex Court has observed in Paras : 6 to 8 as under :

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"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs. 23,134/- being taken as the monthly income. There was, therefore, no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections.

7. This principle also flows from Order 41, Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the

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case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41, Rule 33 of the Code can, however, be pressed into service toSCW851 make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it

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reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

Thus, in view of the above decision and also in view of the recent decision of Hon'ble Apex Court rendered in Civil Appeal No.249 of 2010 dated 21.02.2022 in the matter of Azgar Barid versus Mazambi, where it is observed that though the claimants have not filed any cross-objection under Order 41 Rule 33 of the Code of Civil Procedure, 1908, the aspect of enhancement in awarded amount is considered to award just compensation.

5.3 If we calculate the aspect of quantum, the Tribunal could have considered the income of the deceased Rs.3,000/-p.m., future prospects of the income should be 25% as per the decision of Hon'ble Apex Court in the case of Pranay Shetty (supra) as deceased was aged about 45 years old. Therefore, Rs.3,750/- p.m. towards future loss of income should be awarded. Looking to the dependency of 5 persons, 1/4th should be deducted and therefore, Rs.937/- p.m. should be deducted from Rs.3,750/- p.m. which will come to Rs.2,813/- p.m. or annual dependency Rs.33,756/- where the multiplier of 15 looking to the age of deceased 45 years is applicable and therefore, Rs.5,06,340/- plus Rs.2,40,000/- towards loss of consortium (Rs.40,000/- each to six persons) as per New India Assurance Company Ltd., versus Somwati reported in 2020 (9) SCC 644, then Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses should be awarded. Therefore, total comes to Rs.7,36,340/- compensation which is required to be awarded with 7.5% p.a. interest from the date of claim petition. However, the claimants have prayed Rs.4,00,000/- for compensation in the claim petition and the Tribunal has awarded Rs.3,73,000/- to the claimant and for awarding just compensation,

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additional amount of Rs.3,63,340/- is required to be awarded with 7.5% p.a. interest from the date of application, which would meet the ends of justice, by awarding just compensation wherein the First Appeal filed by the insurance company is required to be dismissed.

6. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

7. With the above observations, the following order is passed.

7.1 The present First Appeal No.180 of 2011 is dismissed, as meritless and compensation is enhanced to the aforesaid extent. No order as to costs.

7.2 For awarding amount as just compensation, the impugned order is modified by directing the Insurance Company and original opponent 2 to pay the amount of compensation, jointly and severally.

7.3 The impugned award of the Tribunal is modified by directing the present appellant-Iffco Tokiyo General Insurance Co. Ltd., as well as the original opponent No.2 who are liable to pay Rs.7,36,340/- with 7.5% p.a. interest to the claimants, from the date of claim petition, jointly and severally.

7.4 It is noted that the Tribunal has already awarded compensation

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of Rs.3,73,000/- with 7.5% p.a. interest to the claimants. Thus, further amount of Rs.3,63,340/- is hereby enhanced over and above the awarded amount and the appellant - insurance company is directed to deposit the enhanced amount before the Tribunal, within a period of six weeks from today.

7.5 It is directed that the concerned Tribunal shall disburse the entire amount (including the enhanced amount which will be deposited by the insurance company) to claimants, as noted above, lying in FDR and/or lying with the Tribunal, by following due procedure, by way of account payee cheque, after proper verification.

7.6 At the time of disbursement, the Tribunal shall deduct the Courts Fees from the enhanced amount and/or any deficit amount of court fees, in accordance with law.

7.6 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA