New India Assurance Co Ltd vs Jagdishbhai Chaturbhai Barot ...
2022 Latest Caselaw 8042 Guj

     C/FA/1089/2008                               JUDGMENT DATED: 16/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1089 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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               NEW INDIA ASSURANCE CO LTD.
                          Versus
JAGDISHBHAI CHATURBHAI BAROT SINCE DIED HIS LEGAL HEIRS & 3
                          other(s)
==========================================================
Appearance:
MR MANDEEP SINGH SALUJA(8791) for the Appellant(s) No. 1
MR PIYUSH TRIVEDI, LD.ADVOCATE FOR MR PRATIK B BAROT(3711) for
the Defendant(s) No. 1.2,1.3,1.4,2
NOTICE SERVED BY DS for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 16/09/2022

                             ORAL JUDGMENT

1. The appellant- New India Assurance Company Ltd. has

filed this appeal under Section 173 of the Motor Vehicles Act,1988

("the Act" for short), challenging the judgement and award dated

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

07/09/2007, passed by the Motor Accident Claims Tribunal (Auxi.),

3rd Fast Track Court, Mehsana in MACP No.1890 of 2001,

wherein the Tribunal has partly allowed the claim petition and

awarded total compensation of Rs.3,21,000/- with interest at the

rate of 8 % per annum from the date of filing of the claim petition till

realization with proportionate cost.

2. Short facts, arising from the record of the case, are as

under:

On 19/10/2001, Jigarbhai Jagdishbhai Barot was

traveling on motorcycle No.GJ-2-M-6183 as pillion rider, driven by

Rajeshbhai Babubhai Patel. They were going from Kans Cross

Roads to Visnagar at night 11:30 p.m. As the driver was driving the

motorcycle in rash and negligent manner, the pillion rider Jigarbhai

Jagdishbhai Barot fell down and sustained injuries on his body

particularly on his head. For the said injury, he was taken to

Visnagar Gokul Hospital for primary treatment and after primary

treatment sent home. Next day, as Jigar Barot (herein after

referred to as the deceased) was not well, taken to Mehsana and

thereafter, shifted to Rajasthan Hospital at Ahmedabad, where he

died on 21/10/2001. For the said accident, legal heirs of the

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

deceased, filed the claim petition u/s 166 of the act, seeking

compensation of Rs.5 Lacs.

It was case of the original claimants that the accident

occurred on account of rash and negligent driving of driver of the

motorcycle. The deceased was 20 years old, having good health

and was studying in S.Y.B.Sc. He was clever and having bright

future therefore, if he would have survived would have earned

much higher.

Upon claim petition being filed, the learned tribunal

issued Notices, respondent appeared and filed its written

statement. Learned Tribunal after hearing the parties and on

appreciation of evidence, awarded total compensation of

Rs.3,21,000 /- under different heads, as under:

              Loss of future income                           Rs.2,88,000/-
              Medical Expenses                                Rs. 10,000 /-
              Loss of love and affection and                  Rs. 20,000/-

              consortium
              Funeral Expenses                                Rs.       3,000/-
              Total compensation                              Rs.3,21,000/-







       C/FA/1089/2008                                 JUDGMENT DATED: 16/09/2022

The compensation of Rs. 3,21,000/- was awarded with

interest @ 8 % per annum from the date of filing of claim petition

till realization. Aggrieved by the order of learned tribunal, fasting

the liability on the insurance company for payment of

compensation, present appeal is filed.

3. Heard Mr.Mandeep Singh Saluja, learned advocate for

the appellant- Insurance company and Mr.Piyush Trivedi, learned

advocate for Mr.Pratik Barot for the respondents- original

claimants.

4. Mr.Mandeep Singh Saluja, learned advocate for the

appellant- insurance company submitted that the judgement and

award passed by learned Tribunal is erroneous, on the following

grounds:

(i) Learned Tribunal has erred in not considering that the

claim petition was filed by stating incorrect facts. The claim petition

was filed on concocted story developed by the original claimants

and therefore it is a fraudulent claim.

         C/FA/1089/2008                              JUDGMENT DATED: 16/09/2022




(ii)               A FIR for the said accident was lodged after 7 days

from the date of accident, which shows that it was an afterthought

by the original claimants.

(iii) Original claimant No-2, Bhartiben Jagdishbhai, a

mother of the deceased, in her statement dated 20.10.2001,

before Shahibaug police, had stated that his son left on his

motorcycle to watch garba and there after a new story was created

that Rajeshkumar Babulal Patel was driving the motorcycle and his

son was pillion rider. This was done to make the claim tenable.

(iv) In the deposition of Patel Rakeshkumar Kanubhai at

Exhi-47, is stated that after accident, he went there and took both

Jigar and Rajesh to the hospital, situated near Visnagar ST Stand.

After getting the primary treatment, he dropped Jigar (the

deceased) at his home. Therefore, this is not the case where

deceased died due to accident.

(v) Most importantly, in the report of private investigator J

P Sharma and Associates, it is assessed and concluded that

Jigarbhai Barot (the deceased) was driving the motorcycle and

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

therefore a fraudulent claim petition was filled.

He further submitted that filing of FIR at belated stage

coupled with contradiction between statement of Bhartiben before

police and in deposition at Exhi-29, establishes that the claim

petition was filed on wrong facts and the tribunal is in error in

entertaining the fraudulent claim petition and thereby fasting

liability on the insurance company. He thus submitted to allow the

appeal of the appellant- insurance company and quash and set

aside the judgement and award of the Tribunal dated 07/09/2007.

5. On the other hand, Mr.Piyush Trivedi, learned

advocate for Mr.Pratik Barot, learned advocate for the

respondents- original claimants submitted that the judgement and

award is passed after appreciating the evidence on record, which

does not call for any interference. He further submitted that mother

Bhartiben Jagdishbhai at Exh.29, had deposed that his son was

traveling on motorcycle driven by Rajeshbhai and he died on

account of rash and negligent driving of driver of motorcycle. The

deceased died on account of head injury sustained in the said

accident. As far as investigation report dated 30.09.2006, at Mark

34/1, he submitted that the same was placed on record after filing

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

of claim petition and does not deny that the deceased died on

account of accidental head injuries. Further, it does not refer to

the deposition of Rajeshkumar Kanubhai Patel at Exhi-47, that the

deceased was pillion rider. For belated filing of the FIR he

submitted that the Tribunal has rightly observed that as the parents

had lost their son, they were under shock and could not lodged a

FIR immediately. He thus submitted to dismiss the appeal of the

appellant -Insurance company.

6. Heard learned advocates for the respective parties.

Record and proceedings are made available and placed for

perusal. The matter was admitted vide order dated 10.07.2008.

7. Upon re-appreciation of the evidence on record, it is

noticed that the deceased died on account of head injuries

sustained due to accident occurred on 19/10/2001. It is not in

dispute that the motorcycle was insured with the appellant

insurance company. Further, due to the accidental injuries

sustained by deceased, he was taken to the Visnagar Hospital on

19.10.2001, for primary treatment and after primary treatment he

was sent home. However, as he was not well, taken to Mehsana

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

and as advised, was taken to Rajasthan Hospital at Ahmedabad

for further treatment, where he died. Doctor's Certificate states that

the deceased died on account of head injury and therefore in my

opinion, the findings given by the Tribunal that the deceased died

on account of accident is based on evidence on record and

correct.

8. As far as submission of the appellant that concocted

story was developed by the original claimants, it is noticed that the

FIR was lodged after 7 days from the date of accident. However,

findings given by the Tribunal cannot be ignored that parents, who

lost their son, were under shock and therefore could not lodged a

FIR immediately and was lodged after 7 days. Moreover, there is

no cross-examination by the appellant - insurance company on the

above aspect. Further, in the deposition of Bhartiben, - mother of

the deceased at Exh.29, as well as deposition of Rakeshbhai at

Exh.47, they have stated that the deceased Jigarbhai was pillion

rider. Both of them were cross-examined by the appellant -

insurance company, however nothing contrary came on record. In

the statement dated 20.10.2001, before Shahibag Police, mother

Bhartiben had stated that the deceased left home to see Garba on

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

his motorcycle, that statement, in my opinion does not prove that

afterwards also he was driving motorcycle. In the FIR it was

recorded that Jigar was a pillion rider. Further, the reliance placed

by the insurance company on the report dated 30.09.2006, of

private investigating agency, at Mark 34/1, in my opinion is not of

much importance because the same has not been referred in the

written statement of the company dated 20.12.2006 at Exhi.39.

Moreover, in the investigation report, occurrence of accident is not

doubted. It was assessed that deceased Jigar was driving the

motorcycle and presence of Rajesh Patel was doubted. Therefore,

when in the deposition of both Bhartiben at Exhi -29 and

deposition of Rajesh at Exhi. -47, had confirmed that deceased

was pillion rider and nothing contrary came on record from the

cross examination, in my opinion, the tribunal is right in fastening

the liability on the insurance company.

9. Further, admittedly the deceased was 20 years of age

at the time of incident and studying in S.Y.B.Sc. and having bright

future in front of him. The tribunal considering the age and the

qualification of deceased assess income of the deceased at Rs

2400/- per month and deducted 1/3 towards personal expenses

C/FA/1089/2008 JUDGMENT DATED: 16/09/2022

and applied the multiplier of 15. The tribunal further awarded Rs

20,000/- towards pain, shock and sufferings Rs.10,000/- towards

medical expenses and Rs. 3000/- towards funeral expenses.

Therefore, in my opinion, learned Tribunal has rightly awarded

total compensation to the tune of Rs.3,21,000/-.

10. In view of aforestated facts and reasons there being no

merits in the appeal filed by the appellant - insurance company,

the same deserves to be dismissed and is dismissed accordingly.

11. Registry is directed to transmit back the Record and

Proceedings of the case to the concerned Tribunal forthwith.

However, there shall be no order as to costs.

(MAUNA M. BHATT,J)

DIPTI PATEL