Chief District Medical ... vs Bhikhabhai Ramabhai Makwana ...
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                                                                                 NEUTRAL CITATION




       C/FA/5360/2008                             ORDER DATED: 25/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 5360 of 2008

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    CHIEF DISTRICT MEDICAL OFFICERCIVIL SURGEON & 1 other(s)
                            Versus
 BHIKHABHAI RAMABHAI MAKWANA SINCE DECD. THROUGH HEIRS & 1
                            other(s)
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Appearance:
MR JAYNEEL PARIKH, AGP for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR JM BAROT(143) for the Defendant(s) No. 1.1,1.2,1.3,1.4
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 25/08/2023
                       ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicle

Act, 1988 by the owner of the vehicle and driver, assailing

the judgment and award date 02.07.2008 in MACP No.893

of 2007, passed by MACT (Aux.), Court no.4, Mehsana.

2. Deceased Bhikhabhai Makwana was serving with Civil

Hospital, Patan as Ward Attendant. On 12.10.2007, he was

travelling in Ambulance being No.GJ-24-G-9001, owned by

the Chief District Medical Officer, Civil Surgeon, Health

Department, State of Gujarat and was coming from

Ahmedabad to Patan. The said vehicle met with an

accident as due to sudden passing of stray animal, the

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C/FA/5360/2008 ORDER DATED: 25/08/2023

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vehicle dashed with the tree besides the road, as a result,

the deceased sustained fatal injuries. The legal heirs of the

deceased filed a claim petition against the owner, driver

and New India Insurance Company with whom the vehicle

was insured. The claim Tribunal vide its judgment and

award dated 02.07.2008 granted compensation

Rs.8,98,387/- holding the liability of driver and owner

jointly and severally. So far as Insurance Company is

concerned, the Tribunal has exonerated from its liability as

risk of the passenger of the ambulance was not covered.

3. Being dissatisfied with the exhortation of he insurance

company and amount of compensation, the owner of the

vehicle has filed present appeal.

4. This Court has heard Mr.Jayneel Parikh, learned AGP

appearing for and on behalf of the appellant and Mr.H.G.

Majmudar, learned advocate for the insurance company.

5. Mr.Parikh, has submitted that the judgment and award

passed is against the evidence on record and dehors to the

legal provisions of the Motor Vehicle Act. That the findings

exonerating the insurance company is arbitrary and

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perverse as under Sections 147 and 149 of the Motor

Vehicle Act, the insurance company is statutorily and

contractually is liable to indemnify the amount of award

for and on behalf of the owner of the vehicle. That the

amount award is little bit on higher side.

6. On the other hand, learned counsel Mr.Majmudar

appearing for and on behalf of the insurance company has

submitted that the Tribunal has not committed any error

while interpreting the terms and conditions of the policy

and therefore, when the risk of the deceased is not covered

by paying premium or otherwise, the insurance company

cannot be held liable and in this case, the Tribunal has

rightly exonerated the insurance company.

7. Having heard learned counsels for the respective parties,

the point that arises for my consideration is whether

Tribunal is justified in exonerating the insurance company

from its liability and amount awarded is just and proper or

not ?

8. The appellant being a State has raised the contentions that

despite the coverage of the insurance the Tribunal

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exonerated the insurance company and the same is

against the statutory provisions of the Motor Vehicle Act.

On reading of the insurance policy and terms and

conditions, it is not in dispute that the risk of the deceased

i.e. person travelling in ambulance was not covered as no

extra premium covering the risk of the passenger was paid

or charged. The deceased travelling in the vehicle cannot

be said to be a third party. Thus, therefore, the Tribunal in

its award after considering the contractual liability as well

as statutory liability has rightly exonerated the insurance

company and findings thereof, are in consonance with the

evidence on record and the same is not required to be

interfered with.

9. The other issue raises the amount awarded is on higher

side. The claim was filed by the widow and three sons of

the deceased. The Tribunal while assessing the income of

the deceased had taken into consideration salary and other

particulars of the deceased as the relevant time, he was

permanent employee of the State Government. Considering

the age of the deceased, multiplier of 12 was being

considered and after 1/3 towards the personal expenses of

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the deceased, the dependency was calculated Rs.65,400/-

per annum and under the head of loss of consortium

Rs.40,000/- was being considered. Thus, the total amount

of compensation was awarded Rs.8,98,387/- with interest

at the rate of 7.5%.

10. In the aforesaid, this Court is of the considered view that

the Tribunal has not committed error either on factual

aspect or in calculating the amount of dependency loss.

Thus, on the issue of quantum, the award is just, proper

and reasonable and does not require any interference.

11. Resultently, the appeal fails and is hereby dismissed.

Decree be drawn accordingly. The Tribunal shall disburse

100% amount as per the order, if amount is still lying in

FDR.

(ILESH J. VORA,J) Rakesh