Shivrajbhai Vinubhai vs Bhadabhai Vaktabhai
2023 Latest Caselaw 6255 Guj

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     C/FA/517/2011                               JUDGMENT DATED: 25/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 517 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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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                         SHIVRAJBHAI VINUBHAI
                                Versus
                     BHADABHAI VAKTABHAI & 3 other(s)
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Defendant(s) No. 3,4
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
MR. JAINISH P SHAH(7033) for the Defendant(s) No. 3,4
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 25/08/2023

                            ORAL JUDGMENT

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1. Heard Learned advocate Mr. Paresh Darji for

learned advocate Mr. Mrugen Purohit for the

appellant and learned advocate Mr.Sunil B.

Parikh for respondent no.2.

2. The appellant-claimant has preferred this

appeal under section 173 of the Motor

Vehicles Act, 1988 (for short "the Act")

challenging the Judgment and Award dated

19.03.2009 rendered in MACP No.641/1999

passed by the Motor Accident Claims Tribunal

(Aux.) Gondal (for short "the Tribunal")

whereby the Tribunal awarded Rs.1,51,000/-

towards compensation with 7.5% interest per

annum from the date of institution of the

claim petition till realisation.

3. Brief facts of the case are that on

17.03.1999, while the applicant was standing

on side of the road near the bus stand,

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driver of the truck bearing registration

no.GJ-12U-7639 came driving his vehicle at an

excessive speed and in rash and negligent

manner on wrong side and dashed with the

claimant. Resultantly, the claimant received

bodily fracture injury whereby his right hand

had to be amputated and thereby sustained

partial disablement.

3.1) The appellant claimant therefore,

preferred claim petition being Motor Accident

Claims Petition No. 641 of 1999 under section

166 of the Act before the Tribunal claiming

compensation of Rs. 4,00,000/- from

driver,owner and insurance company of the

offending vehicles.

3.2) On service of summons, respondent

no.1 appeared before the Tribunal and filed

its Written Statement at Exh.12 denying the

contentions raised by the claimant in the

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claim petition. It was contended that the

claim petition is barred by non joinder of

parties. It was further contended that the

accident in question has happened due to

negligent driving on part of the driver of

Chhakdo Rickshaw bearing registration no.GJ-

14T-6075 and not due to driver of Truck

bearing registration no.GJ-12U-7639. The

question of jurisdiction of the Court was

also raised as the accident occurred in

village Kotda of Taluka Visavadar.

3.3) Respondent no.2 appeared before the

Tribunal and filed its Written Statement at

Exh.15 denying the contentions raised in the

claim petition by the appellant. It was

contended in the written statement that as

per the FIR, the appellant was travelling as

illegal passenger in Chhakdo Rickshaw and

thereby there was a breach of terms and

conditions of the policy and therefore, the

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claimant was not entitled to get any

compensation. It was also contended that the

accident had occurred due to rash and

negligent driving of Chhakdo Rickshaw and not

due to driver of the truck.

3.4) Respondents no. 3 and 4 chose not to

appear before the Tribunal to contest the

claim petition.

3.5) The Tribunal framed issues at Exh.19

as under:

"1) Whether the applicants prove that the accident dated 17.03.1999 occurred due to rash and negligent driving of the offending vehicle as alleged?

2) Whether the applicants received injuries as a result of rash and negligent act on the part of the driver of the offending vehicle as alleged?

3) Whether the applicants are entitled to get the compensation as claimed in the application?

                4)   Who     are           the     liable          to         pay





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                     compensation?

                     5)      What order and award?"


  3.6)               The        Tribunal             after        taking          into

consideration oral and documentary evidence

on record, more particularly, affidavit of

the claimant at Exh.20, FIR at Exh.21,

Charge-sheet at Exh.23, Panchanama of scene

of offence at Exh.22 held that the accident

took place due to negligence and carelessness

of drivers of both the vehicles involved in

the accident i.e. the truck as well as the

Rickshaw Chhakdo. The Tribunal thereafter,

drawing adverse inference against drivers of

both the vehicles since they have neither

stepped into witness box nor produced any

rebuttal evidence, assessed 70% negligence on

part of the driver of the truck and 30%

negligence on part of the driver of the

Chhakdo Rickshaw considering the nature of

both the vehicles.

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3.7) With regard to the compensation, the

Tribunal considered the affidavit of the

appellant-claimant at Exh.32 and his cross

examination at Exh.20 and found that though

claimant has claimed that he was studying and

also doing service and thereby earning Rs.

2900/-, the claimant had not produced any

documentary evidence to show that at the time

of accident, he was earning Rs. 2900/-. The

Tribunal therefore, considering that the

accident had occurred on 18.03.1999 adopted

notional income of the claimant to be Rs.

1250/- per month.

3.8) Insofar as disability is concerned,

though Disability Certificate produced at

Exh.30 showed 90% permanent partial

disablement, the Tribunal on consensus

arrived at between the parties, considered

50% disability of the body as as whole to

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work out the future loss of income.

3.9) The Tribunal accordingly assessed

the future loss of income at Rs.625/-(50% of

Rs.1250) and yearly income of the claimant to

be Rs.7500/-(Rs.625x12). Considering the age

of the claimant to be 16 years at the time of

accident, the Tribunal adopted multiplier of

15 and awarded Rs.1,12,500/- (Rs.7500x15)

towards the future loss of income.

3.10) Considering the nature of injury and

treatment undergone, the Tribunal awarded

Rs.25,000/- towards pain, shock and suffering

and Rs.5000/- towards medicines and medical

treatment. The Tribunal also awarded

Rs.9,000/- under the head of transportation,

special diets, attendant charges etc. The

Tribunal thus awarded total compensation of

Rs.1,51,000/- to the claimant.

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4. Learned advocate Mr. Paresh Darji for the

appellant-claimant submitted that the

Judgment and Award passed by the Tribunal is

without appreciating the evidence on record

and without jurisdiction since the Tribunal

has exercised the jurisdiction not vested in

it.

4.1) It was submitted that the Tribunal

committed a grave error in considering only

notional income of the appellant. Relying

upon the judgment in case of Javtiben v.

Narpatsinh Bhupatsinji & Ors. reported in

2008 ACJ 186, it was submitted that the

Tribunal ought to have considered disability

of the claimant to be 100% and awarded more

amount of compensation considering the fact

that the appellant has suffered imputation of

right hand above elbow. It was further

submitted that the Tribunal erred in awarding

multiplier of 15 only because the age of the

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claimant at the time of accident was 16 years

and therefore, Tribunal ought to have awarded

multiplier of 18. It was further submitted

that considering the nature of injuries, the

Tribunal ought to have awarded Rs. 3 lakhs

towards pain, shock and suffering and Rs. 1

Lakh to Rs. 1.25 lakh towards conventional

amounts. It was further submitted that the

Tribunal committed an error in not

considering the prospective income of the

appellant-claimant and the amount awarded

towards compensation by the Tribunal is on

lower side.

5. On the other hand, learned advocate Mr. Sunil

Parikh for New India Assurance Co. Ltd.

Submitted that the claimant was travelling as

illegal passenger in Chhakdo Rickshaw and

thereby there was a breach of terms and

conditions of the insurance policy and

therefore, the claimant is not entitled to

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get any compensation. It was further

submitted that the accident occurred due to

rash and negligent driving on part of the

driver of Chhakdo Rickshaw and not due to

the rash and negligent act on part of the

truck driver which is insured with respondent

no.2. Therefore, respondent no.2 is not

liable to pay any compensation to the

claimant.

6. Considering the submissions made on behalf of

the respective parties and the evidence on

record, insofar as the question of negligence

is concerned, the Tribunal took into

consideration affidavit of the applicant at

Exh.20 and his cross examination wherein the

appellant claimant has stated that Chhakdo

Rickshaw and truck dashed with each other.

Further, the Tribunal on the basis of FIR and

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concluded that the accident took place due

to negligence and carelessness of drivers of

both the vehicles involved in the accident.

The Tribunal drew adverse inference against

the drivers of both the vehicles as they have

neither stepped into the witness box nor have

they produced any rebuttal evidence to

disclose the material facts regarding the

accident. The Tribunal however, considering

the nature of both the vehicles, assessed 70%

negligence on part of the driver of the truck

and 30% negligence on part of the Chhakdo

Rickshaw. The Tribunal has correctly on the

basis of available evidence on record

attributed the negligence on part of the

drivers of the offending vehicles which

requires no interference.

7. Insofar as compensation awarded by the

Tribunal is concerned, the Tribunal

considering the notional income of the

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claimant to be Rs.1250/- per month on the

date of accident and considering the

consensus arrived at between the parties

sustained 50% disability of the body as a

whole and awarded Rs.625/- per month and Rs.

7500/- per annum to be the income of the

claimant. The Tribunal thereafter adopting

the multiplier of 15, awarded Rs. 1,12,500/-

towards loss of future income.

8. Learned advocate Mr. Darji for the appellant

placed reliance on decision of Hon'ble Apex

Court in case of Mallikarjun v. Divisional

Manager, National Insurance Company Limited

and another reported in (2014) 14 Supreme

Court Cases 396 and submitted that as held by

the Apex Court, lump-sum amount of Rs.

3,00,000/- should have been awarded

considering the disability suffered by the

appellant-claimant.

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9. Considering the decision in case of

Mallikarjun (supra), it would be just and

proper to award Rs. 3,00,000/- towards loss

of future income.

10. Further, as per the decision in case of

Mallikarjun (supra), it would be just and

proper to award RS. 25,000/- under the head

of Discomfort, inconvenience and loss of

earning to parents during hospitalisation.

11. Tribunal has awarded Rs.5000/- towards

medical expenses considering the treatment

undergone and medical bills produced on

record which requires no interference by this

Court.

12. The Tribunal has awarded Rs.9,000/-

towards transportation, special diet and

attendance charges. However, consider the

nature of injuries, more particularly,

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amputation of right hand above the elbow,

Tribunal erred in awarding compensation under

the head of special diets attendant charges

and transportation on lower side. It would be

just and proper to award Rs.25,000/- under

the head special diets, attendant and

transportation charges.

13. Tribunal has not awarded any amount

towards future medical expenses. The claimant

has suffered amputation of right hand above

elbow and therefore, it would be just and

proper to award Rs. 50,000/- under the head

of future medical expenses.

14. Thus the appellant-claimant would be

entitled to get compensation under various

heads as under:

Heads of Compensation Amount

Pain Shock and suffering Rs.3,00,000/- and loss of amenities

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Discomfort inconvenience Rs.25,000/- and loss of earning to parents during hospitalisation

Medical Expenses Rs.5,000/-

   Special diets,                                   Rs.25,000/-
   attendant and
   transportation charges

   Future Medical Expenses                          Rs.50,000/-
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   Total compensation                               Rs. 4,05,000/-
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15.         The     Tribunal     has         correctly       exonerated

   the           insurance   company           of    the       offending

vehicles considering the negligence on part

of the driver of the offending vehicles.

16. The next question therefore, arises for

consideration is once having held that the

insurance company is entitled to avoid its

liability under the insurance policy, whether

any direction to pay and recover is required

to be issued or not ?

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17. The Hon'ble Apex Court in the decision

in case of Khenyei v. New India Assurance

Company Limited and others reported in (2015)

9 Supreme Court Cases 273 has held as under :

"20. This Court in Challa Upendra Rao[(2004) 8 SCC 517] & Nanjappan [(2004) 13 SCC 224] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor- truck the amount to the aforesaid extent in the execution proceedings.

Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the

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amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law."

18. In view of the above decision of the

Apex Court, respondent no.2 - insurance

company is liable to first satisfy the

award and then recover the same from the

owners and drivers of the offending vehicles.

19. The impugned order dated 19.03.2009

passed by the Tribunal is partly modified.

The Tribunal has already awarded

Rs.1,51,500/-. Therefore the appellant-

claimant would be entitled to enhanced

compensation of Rs.2,53,500/- (Rs.4,05,000-

Rs.1,51,500), by way of just and fair

compensation.

20. Respondent no.2 insurance company is

directed to deposit the said amount with

proportionate cost and interest as awarded by

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the Tribunal within a period of 12 weeks from

the date of receipt of this order. Rest of

the directions in the impugned judgment and

award remains unaltered.

21. The amount so deposited shall forthwith

be released in favor of the claimants after

due verification.

22. In order to secure the interest of the

insurance company, the insurance company may

initiate proceedings before the executing

court without filing a suit for recovery of

the amount.

23. For the purpose of facilitating recovery

of the amount, the owner of the vehicle shall

be issued a notice and he shall be required

to furnish security of the entire amount

which the insurer has paid to the claimants

and the offending vehicle shall be attached

as a part of the security. If necessity

arises, the executing court shall take

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assistance of the Regional Transport Office

concerned. The executing court shall pass

appropriate orders in accordance with law as

to the manner in which the insured, owner of

the vehicle shall make payment to the

insurer. In case there is any default, it

shall be open to the executing court to

direct realization by disposal of the

securities to be furnished or from any other

property or properties of the owner of the

vehicle insured.

24. First Appeal stands disposed of

accordingly.

Record and Proceedings, if any, to

be transmitted back to the concerned

Tribunal

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR