Punjabhai Jethabhai Parmar vs Driver: Suryakant Naranbhai
2023 Latest Caselaw 2854 Guj

     C/FA/4654/2009                                   CAV JUDGMENT DATED: 11/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/FIRST APPEAL NO. 4654 of 2009
                             With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
                               In
                R/FIRST APPEAL NO. 4654 of 2009
                             With
                R/FIRST APPEAL NO. 4655 of 2009
                             With
                R/FIRST APPEAL NO. 4656 of 2009

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                 Sd/-
==========================================================

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 ?

========================================================== PUNJABHAI JETHABHAI PARMAR Versus DRIVER: SURYAKANT NARANBHAI & 2 other(s) ========================================================== Appearance:

MR AMAR D MITHANI(484) for the Appellant(s) No. 1 MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

Date : 11/04/2023

1. Present set of appeals is arising out of common judgment

and award dated 23.12.2005 delivered by Motor Accident

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Claims Tribunal (Aux.) Fast Track Court, Junagadh in Motor

Accident Claim Petition Nos.518 of 2000, 519 of 2000 and 520

of 2000 and since these claim petitions are arising out of very

same accident, this common judgment and award is challenged

by way of aforesaid appeals. since facts are identical, evidence

is common and learned advocates have jointly submitted to take

up these appeal conjointly, the Court has taken up hearing of

the appeals and same are being decided by present common

judgment and order.

2. Facts in brief are that original claimant was traveling with

minor daughters on 16.4.2000, at around 8.30 p.m. on Shil Rahij

Road and carrier rickshaw was driven in a rash and negligent

manner by opponent driver and said rickshaw was bearing

registration No.GJ-10 V 4258. Original claimant, i.e. Punjabhai

Parmar was traveling in said rickshaw to attend Mandap Utsav

at village Rahij and by fixing rate of fare for the goods, he along

with minor daughters was traveling in said rickshaw. On

account of rash and negligent driving, vehicle driver lost control

and resulted into accident, wherein claimants were initially

taken to a private hospital of Dr. Dolakia and were treated as

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indoor patients. Father, i.e. Punjabhai Parmar, suffered serious

injuries on account of which amputation was made of right

lower limb along with other serious injuries. Daughter Daxaben

also sustained a hipbone fracture along with other injuries and

was taken to hospital for taking treatment which went for a

pretty long period. Surgeries were performed and they had to

take rest for pretty long period. On account of this vehicular

accident, father Punjabhai Jethabhai Parmar filed a claim

petition which was numbered as MACP No.518 of 2000,

whereas daughter Daxaben @ Dayaben filed a claim petition

which was registered MACP No.519 of 2000 and similarly

daughter Bhavnaben Punjabhai also filed a claimed petition

which was registered as MACP No.520 of 2000. Said claim

petitions were taken up, wherein documentary evidence was led

in the form of FIR, panchnama of sight, medical certificates,

injury certificates, disability certificates, RC book as well as bills

pertaining to medical treatment along with several other

documents. It appears that during the course of adjudication of

the said claim petitions, which were taken up together,

opponent Nos.1 and 2 being driver and owner remained absent

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though served, whereas opponent No.3 Insurance Company

appeared and submitted written statement opposing the claim

petitions.

3. So far as father Punjabhai is concerned, he submitted

MACP No.518 of 2000 for claiming compensation of Rs.7 lac

under different heads, whereas daughters filed MACP No.519 of

2000 for claiming compensation of Rs.2 lacs and MACP No.520

of 2000 for claiming compensation of Rs.1 lac.

4. Opponent No.3 Insurance Company submitted a written

statement at Exh.21 and contended that claimants were

traveling as an unauthorized passengers and have created a

story as if they went for selling shawls and thereby hired

rickshaw. It was specifically contended that opponent No.1 was

not having a valid and effective driving license and as such

Insurance Company is not responsible to make payment of

compensation and as such requested that claim petitions qua

Insurance Company be dismissed.

5. From the record, it appears that issues were framed at

Exh.28 and after considering documentary material on record

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and after assessing the relevant material, learned Tribunal was

pleased to pass a common judgment and award allowing the

claim petitions in part, vide judgment and order dated

23.12.2005, operative part thereof reads as under:-

M.A.C.P. NO.518/2000.

The claim petition is partly allowed.

The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs.1,66,500/-with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation Vs. S. Rajapriya and others, reported in Accident Claims Journal, 2005 (Vol. III) 1441.

M.A.C.P. NO.519/2000.

The claim petition is partly allowed.

The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs. 70,200/- with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation Vs. S. Rajapriya and others, reported in Accident Claims Journal, 2005 (Vol. III) 1441.

M.A.C.P. NO.520/2000.

The claim petition is partly allowed.

The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs.39,320/- with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation Vs. S. Rajapriya and others, reported in Accident Claims AGADA Journal, 2005 (Vol. III) 1441.

C/FA/4654/2009 CAV JUDGMENT DATED: 11/04/2023

The Opponent. No.3 United India Insurance Co. Ltd. is exonerated from the liability of paying the amount of compensation to the applicant in each case and is entitled for reimbursement of the amount towards interim compensation if any paid by it.

The interim compensation if any paid to the applicant, be adjusted from the awarded amount.

The deficit court-fees if any, be recovered from the awarded amount.

Out of compensation amount, 70% amount shall be invested in any nationalised Bank of the choice of applicant for the period of 5 years with condition that applicant shall not be entitled for any loan, advance or any kind of withdrawal without prior permission of this Tribunal, however, applicant is entitled for periodical interest thereon. The remaining 30% amount be paid to the applicant by Account Payee Cheque.

Award be drawn accordingly.

Pronounced in open Court today on this 23 rd day of December, 2005.

6. Present First Appeals feeling aggrieved by and dissatisfied

with judgment and award are filed not only against inadequate

amount of compensation awarded but basically it appears that

Insurance Company which has been exonerated was according

to the appellants was erroneously exonerated and as such under

Section 173 of the Motor Vehicles Act, present First Appeals

have been submitted. Since issues arising in these appeals are

identical and common. learned advocates have requested to

take up hearing conjointly and as such, the Court heard learned

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advocate Mr. Amar Mithani for appellants and learned advocate

Mr. Palak H. Thakkar for opponent No.3 Insurance Company.

Though served, opponent Nos.1 and 2 remained absent and as

such, it is placed ex-parte against them.

7. Learned advocate Mr. Amar Mithani appearing on behalf

of the claimants has submitted that on account of unfortunate

incident, serious injuries have been suffered by all three

claimants and so far as main claimant of First Appeal No.454 of

2009, Punjabhai Jethabhai Parmar is concerned, his right lower

limb was required to be amputated along with other injuries and

sustained serious disability. Similarly, other claimants have also

suffered fracture injuries which are mentioned, but

unfortunately, ignoring seriousness of injuries, a meagre

amount of compensation has been awarded and as such, award

passed deserves to be corrected. Mr. Mithani has further

submitted that reasons which are assigned by learned Tribunal

are also not germane to law and not in consonance with

evidence on record. It was specifically submitted that on

account of this vehicular accident, injuries have been caused

and disability of main appellant i.e. Punjabhai was to an extent

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that functional disability was assessed to the extent of 75% and

disability certificate was also produced at Exh.34. It was also

contended that though there was monthly income of Punjabhai

to an extent of Rs.3,000/-, learned Tribunal erroneously

assessed the same to the extent of Rs.1500/- per month and

thereby a consequential effect resulted into inadequate amount

of compensation as against claim of Rs.7 lac. It was also

contended that opponent Nos.1 and 2 have not remained

present and as such a bare assertion was made by Insurance

Company that driver was not having a valid license at the

relevant point of time, therefore, he cannot be allowed to be

exonerated and as such there is an error committed by learned

Tribunal in passing the impugned award. It has further been

contended that claimant Punjabhai was engaged in the business

of weaving and selling of blankets and was traveling in a carrier

rickshaw and as such income which has been assessed by

Tribunal is on a lower side and there also appears to be a clear

error on the part of learned Tribunal in assessing the disability

at 35% body as a whole and this being a clear error on the part

of learned Tribunal in passing an award, same deserves to be

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modified. On the contrary, by giving a calculation chart, learned

advocate Mr. Mithani has submitted that on the basis of income

of Rs.3,000/- per month, if calculation under various heads is to

be considered, total comes to Rs.2,78,000/- and if same is to be

adjusted with amount which has been awarded, additional

amount is required to be awarded to an extent of Rs.1,11,500/-

and as such to that effect, impugned award may be modified by

considering income at Rs.3000/- per month.

8. In respect of other claimants, learned advocate Mr.

Mithani has submitted that though nothing much to be

conveyed, but at the same time, looking to injuries which are

caused in respect of other claimants of MACP Nos.519 of 2000

and 520 of 2000, it appears that calculation arrived at is at

much lower side and therefore, same deserves to be enhanced

by suitably modifying the award which has been passed by

learned Tribunal. Mr. Mithani has further submitted that

Insurance Company has been erroneously exonerated and

simply because driver was not having a valid license, same

cannot be a ground to exonerate Insurance Company especially

when undisputedly, coverage of insurance policy is already

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available at the time when accident took place and as such by

placing reliance upon the decision delivered by High Court of

Karnataka at Dharwad Bench dated 14.9.2016 passed in MFA

No.24131 and 24534 of 2010 a request is made to modify the

award and appropriate amount of compensation be enhanced.

Another decision has also been brought to the notice of this

Court dated 11.12.2015 passed by High Court of Karnataka,

Bengaluru Bench in Misc. First Appeal No.4330 of 2012 and

has contended that impugned order be suitably modified not

only by enhancing the amount of compensation but by holding

Insurance Company responsible for compensation. In the

alternate, it has further been submitted that in case the Court is

of the view that Insurance Company is not responsible, then in

that case, in view of the consistent practice and in view of the

proposition of law laid down by Hon'ble Apex Court, Pay and

Recovery order may be passed which would meet the ends of

justice and as such has requested to allow the appeals to the

aforesaid extent.

9. As against this, learned advocate Mr. Palak H. Thakkar

appearing on behalf of the Insurance Company has submitted

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that appeal lack merits, on the contrary Insurance Company has

rightly been exonerated. Not only that, even otherwise driver of

the vehicle was not having a valid license and as such also

liability of Insurance Company cannot be fixed in any

circumstance and in respect of quantum of compensation, Mr.

Thakkar has submitted that there is no material sufficient

enough to produce on record which can justify the claim of

income of Rs.3000/- per month and as such whatever amount

which has been assessed by learned Tribunal is reasonable and

as such no interference deserves. Mr. Thakkar has submitted

that this being a first appeal, in absence of any other

distinguishable material, view taken by learned Tribunal in this

peculiar background of facts may not be disturbed. It has been

contended that it is now settled by catena of decisions that

moment Insurance Company is not responsible, usual order of

pay and recovery cannot be passed and for that purpose, Mr.

Thakkar has referred to the decisions delivered by this High

Court based upon several other judgments and has produced on

record a list of decisions by way of a separate chart and by

referring to this, it has been contended that pay and recovery

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order may not be applied herein in this case, especially when

Insurance Company is not held responsible. Hence, a request is

made not to entertain the appeals.

10. Having heard learned advocates appearing for the parties

and having gone through the material on record, it appears that

in a vehicular accident dated 16.4.2000, not only original

claimant, i.e. father of minor daughters was undisputedly

traveling with goods in a carrier rickshaw No. GJ-10 V 4258 and

rickshaw was driven in an excessive speed and while overtaking

a camel-cart, driver lost control and vehicle turned turtle, which

has resulted into serious injuries. Claimants were taken first for

primary treatment and then were shifted to Mangrol Hospital

but in view of the fact that injuries were serious enough,

Punjabhai was shifted to a private hospital of Dr. Dolakia,

Junagadh where he appears to have been treated as an indoor

patient for quite some time. It was contended by appellant that

he was doing labour work and was earning Rs.2500/- by selling

blankets and on account of serious injuries, huge medical

expenditure has taken place and as such has claimed a

compensation.

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11. Apart from that, from the record, it appears that learned

Judge in absence of any proof with regard to income, a notional

income was considered and was assessed at Rs.1500/- per

month and considering the overall disability at 35% of body as a

whole, amount was then calculated and ultimately, a

compensation of Rs.1,66,500/- was awarded. Here, it emerges

from the record that for claiming compensation, income has

been stated to be Rs.3000/- per month in the appeal by learned

advocate Mr. Mithani, but there is an absolutely no material to

substantiate either in the form of bill for selling blankets or any

amount which might have been spent for preparation of

blankets or any other kind of documents relating to income. It

also appears from the memo of appeal that there is no assertion

made with regard to income and as such in the absence of any

material or in the absence of any documentary evidence with

regard to income, it is difficult for this Court to arrive at a

conclusion de hors the conclusion which has been arrived at by

learned Tribunal in respect of assessment of income and

therefore, the Court is not in a position to substitute the income

of claimant Punjabhai as that of Rs.3000/- per month. It is a trite

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law that in absence of any distinguishable material, view taken

by Trial Court may not be substituted just for sake of

substitution. Hence, the Court is not in a position to determine

the income of Rs.3000/- per month as canvassed by learned

advocate Mr. Mithani, in place of Rs.1500/- per month which

has been arrived at by learned Tribunal. Had there been any

material even remote in nature to justify the income as tried to

be projected, the Court might have considered in view of the

fact that Act is based upon benevolent principle, but in absence

of any such material, possible view adopted by learned Tribunal

is not in a position to be disturbed or substituted. In the memo

of appeal also, there is no assertion with regard to such income

as tried to be projected by learned advocate Mr. Mithani.

Hence, the Court is not inclined to accept the stand of appellant

that income of claimant Punjabhai was Rs.3000/- per month and

based upon that, amount may be modified.

12. In respect of other appeals arising out of common

judgment and award, being First Appeal Nos.519 of 2000 and

520 of 2000, there are no other separate submissions made by

learned advocate Mr. Mithani, except the fact that serious

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injuries have taken place on account of no fault on their part.

Therefore, amount of compensation may be enhanced but again

Mr. Mithani reiterates that in absence of any material, even at

appellate stage, the Court is not in a position to enhance the

amount. Hence, in the considered opinion of this Court, no case

is made out to call for any interference.

13. Apart from that, even stand of Insurance Company that at

the time of occurrence of accident, driver was not having a valid

license and that fact has been proved during the course of

adjudication of main claim petition and in counter to that,

appellants have not led any evidence to suggest that stand taken

by Insurance Company is erroneous, on the contrary, learned

Tribunal on the basis of material on record has accepted the

stand of Insurance Company and exonerated it since there

appears to be violation of the terms of insurance policy. Be that

as it may, a case is made out by the appellants to fix liability of

Insurance Company in respect of compensation which has

already been awarded. Hence, there appears to be no error

committed by learned Tribunal while passing the impugned

award.

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14. So far as alternative submission of learned advocate Mr.

Mithani that Insurance Company at the best may be directed to

pay the amount of compensation first to the appellants and then

recover the same from the original owner of the vehicle in

question, this principle of Pay and Recovery is no longer

continued to be recognized and recent pronouncements are

clearly indicating that when Insurance Company is not

responsible then pay and recovery principle may not be applied.

Hence, this alternative submission made by advocate Mr.

Mithani is of no substance. The Court is not in a position to

apply such principle especially when Insurance Company has

already been exonerated. That being so, no case is made out by

the appellants to call for any interference.

15. At this stage, on the issue of Pay and Recovery, this Court

has clearly propounded that such principle may not be applied

and such proposition can be culled out from the decision

delivered by the Coordinate Bench of this Court dated 8.12.2021

passed in First Appeal Nos.2911, 2912 and 2913 of 2010,

wherein it was observed in paragraph 12 that Pay and Recovery

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order can be passed by Hon'ble the Apex Court in exercise of

jurisdiction under Article 142 of the Constitution of India and

same principle has been reiterated in series of decisions,

including the decision delivered by Hon'ble the Chief Justice

(the then) in First Appeal No.2121 of 2008 decided on

18.11.2013, wherein in paragraph 13, it has also been clearly

mentioned that there is no scope for passing such order of pay

and recovery as same can only be in exercise of power

conferred under Article 142 of the Constitution of India and

Hon'ble the Supreme Court in particular facts might have

exercised, but said discretion is not available to be helpful and

that being so, principle as tried to be canvassed by learned

advocate for appellants is not possible to be stretched over

here, especially when Insurance Company is not held

responsible for liability of compensation.

16. Hence, considering the aforesaid overall facts on hands,

particularly when there is no evidence worth the name with

respect to income criteria of main claimant Punjabhai, the Court

is not in a position to substitute the finding arrived at by learned

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Tribunal and no case is made out for modification of the award.

17. So far as the decisions which have been tried to be

pressed into service by counsel for appellants of High Court of

Karnataka, Benches of Dharwad and Bengaluru, having gone

through the same and considered the proposition, this Court is

of the opinion that in different background of facts, this Court is

not in a position to apply such decision here since overall

material on record does not support the stand taken by learned

counsel for the appellants. Hence, it appears to this Court no-

doubt, injuries had been caused, but then in the absence of any

relevant material, which may permit the Court to enhance the

amount, it is difficult for this Court to just substitute the order

of the Tribunal and modify it. Accordingly, first appeals lack

merit, same deserve to be dismissed.

18. Since common evidence is relied upon and reasons are

same, no separate finding is incorporated in respect of other

first appeals since same has not been so succinctly argued as

well, as such, impugned award appears to be not

disproportionate, hence does not deserve to be modified.

19. In absence of any perversity or material irregularity, no

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substitution is possible in the present proceedings. Hence, the

appeals deserve be dismissed.

20. Even the Court has also made attempt since this being

First Appeals to find out the material if it can help out the

appellants or not. But, learned counsel for appellants has not

been able to point out even from the paper-book which has been

submitted to substantiate his contention with regard to income

to be treated on a higher side. Hence, when this be the

situation, order passed by learned Tribunal is confirmed and it

would be open for the appellants to pursue the remedy of

recovery against opponent Nos.1 and 2. With these

observations, present First Appeals stand DISMISSED with no

order as to costs.

21. Since the main First Appeal is disposed of, connected Civil

Application stands consigned to records.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR