Gujarat High Court
Faisal Ahmed Abdulla Shikari vs Kasam Abdul Rahim Bahera on 24 January, 2023
Bench: Gita Gopi
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1018 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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FAISAL AHMED ABDULLA SHIKARI
Versus
KASAM ABDUL RAHIM BAHERA & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR HARDIK P MEHTA(6943) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/01/2023
ORAL JUDGMENT
1. By way of this Appeal, the Appellant-claimant has
challenged the judgment and award dated 21.10.2016
passed by the learned Motor Accident Claims Tribunal
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
(Aux.) Panchamahals at Godhra in M.A.C.P. No.716
of 2002 praying for enhancement of compensation
amount.
2. The facts which give rise to the present Appeal is
that on 02.10.2001 the appellant-claimant was
walking by the side of the road. At that time, the
respondent No.1 driving a Tempo bearing Registration
No.GJ-17-T-8559 in a rash and negligent manner with
excessive speed dashed violently the claimant,
because of which he suffered grievous injuries on
various parts of the body which resulted into
permanent disability.
3. Learned Advocate for the appellant Mr. Hiren M.
Modi submitted that the learned Tribunal has failed
to consider that the disability is permanent in nature
and the claimant has disfigurement on the face which
the learned Tribunal ought to have considered and
should have granted compensation accordingly. It is
further submitted that the learned Tribunal
considering the nature of injuries sustained should
have given a just and fair amount under the head of
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
pain, shock and suffering and the amount so granted
by the Tribunal towards the said head is on the
lower side. It is also submitted that the amount
towards transportation, attendant charges and special
Diet is not in accordance with the proportion of the
period of hospitalization undergone by the claimant.
4. Learned Advocate for the appellant Mr. Hiren M.
Modi has drawn the attention of this Court to the
decision of the Hon'ble Apex Court in the case of
Oriental Insurance Company Limited v. Aminaben
Rahimbhai Kadiwala and Others reported in 2001 (2)
G.L.R. 1108 to submit that this Court has very
categorically considered the provision of Section
149(2) of the Motor Vehicles Act, 1988 (hereinafter
referred to in short as 'the M.V. Act') and has laid
down that on account of the long delay in the
Tribunal in bringing the Insurance Company to the
claim petition, the Insurance Company cannot deny
its liability to pay interest on the amount of damages
awarded for a period prior to its impleadment, it is
thus, submitted that the Tribunal has erred in
denying the interest amount from the date of the
Motor Accident Claims Petition.
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
5. While countering the above arguments, learned
Advocate Mr. Hardik P. Mehta submitted that the
learned Tribunal has considered 8% disability for the
body as a whole and no counter evidence has been
given to refute the said assessment. It is further
submitted that no evidence has been produced to
claim any amount under the head of loss of
amenities. It is therefore submitted that the
amount granted under various heads by the Tribunal
is just and reasonable and therefore, there is no need
for this Court to interfere with the judgment and
order of the Tribunal. Learned Advocate Mr.
Mehta further stated that the Insurance Company
cannot be saddled with the interest amount prior to
its impleadment in the matter.
6. Heard learned Advocates appearing for the respective
parties and perused the records of the case. The
learned Tribunal has considered the loss of income by
assessing the income of the claimant as Rs.2,250/-
per month which according to this Court is just and
proper. The disability of 8% considered by the
learned Tribunal is also just and proper. Hence,
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
applying the multiplier of 18, the learned Tribunal
has rightly granted the amount towards future loss of
income @ Rs.38,880/-. Accordingly, actual loss of
income assessed @ Rs.4,500/- is also proper.
However, this Court considering the disability of the
whole body as 8% and the treatment undertaken by
the claimant at Alwani Surgical Hospital, Godhra and
thereafter, at Urja Orthopedic Hospital, Vadodara
where the claimant was treated as an outdoor
patient, this Court is of the view that the claimant
would have suffered pain for a long period. Hence,
the amount towards pain, shock and suffering is very
less and therefore, the amount is required to be
increased to Rs.20,000/-. Further, the amount
granted towards Transportation, Special Diet and
Attendant Charges is Rs.5,000/- which requires to be
increased to Rs.8,000/-. The medical expenses has
been granted which to the tune of Rs.4,000/- and
which is in accordance with the evidence so led.
The applicant has sustained certain disfigurement on
the face and hence, the amount under the head of
loss of amenities of life is granted as Rs.20,000/-.
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
7. Thus, the computation can be made as under :-
Details Amt. (Rs.)
Future loss of income 38,880.00
Actual loss of income 4,500.00
Pain, shock and suffering 20,000.00
Transportation, Special Diet & Attendant Charges 8,000.00
Medical Expenses 4,000.00
Loss of amenities of life 20,000.00
TOTAL 95,380.00
The learned Tribunal has granted an amount of
Rs.62,380/- and this Court has enhanced the amount
by Rs.33,000/-.
8. The learned Tribunal has observed that the Insurance
Company was joined in the year 2016 and hence, it
was concluded that the claimant would not be
entitled to get the interest from the date of the filing
of the Motor Accident Claims Petition but from the
date on which the applicant had joined the owner
and Insurance Company of the offending vehicle and
thus, the learned Tribunal has considered the date as
08.03.2016. However, the said view is not
consistent with the observations made in the case of
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
Aminaben (supra) and the Division Bench of this
Court has observed in Paragraphs 7, 8 and 9 as
under :-
"7. We have also examined the provisions of Sec.
149(2) of the Motor Vehicles Act. It reads as under :-
Section 149(2)
No sum shall be payable by an insurer under sub-
sec. (1) in respect of any judgment or award unless
before the commencement of the proceedings in
which the judgment or award is given the insurer
had noticed through the Court or as the case may
be the Claims Tribunal of the bringing of the
proceedings, or in respect of such judgment or
award so long as execution is stayed thereon
pending an appeal; and an insurer to whom notice
of the bringing of any such proceedings is so given
shall be entitled to be made a party thereto and to
defend the action on any of the following grounds,
namely :...."
8. Plain meaning of the opening words "no sum"
under this provision has to be strictly interpreted. If
this is the intention of the legislature that no sum is
payable, then, it is difficult to understand the logic
that the compensation is payable by
the insurance company but not interest. What is the
intention of the legislature in enacting this provision is
that if the notice is not given to the insurance
company, the insurance company has a right to
approach the tribunal for impleadment and after the
insurance company is impleaded, it can defend the
action on the grounds enumerated under this sub-
section. Learned single Judge has not taken care of the
provisions of Section 149(2) of the Act, and therefore,
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
we are unable to accept the contention of the learned
Counsel for the appellant that the interest is not
payable by the insurance company for the period the
insurance company was not impleaded.
9. To our mind, the matter is covered by the Apex
Court's decision in Urmila Pandey & Ors. v. Khalil
Ahmed & Ors., (supra). In this case also, the
insurance company was impleaded before the tribunal
but at late stage. The exact dates are not available
from the judgment of the Apex Court. However, the
fact remains that the insurance company was
impleaded before the tribunal after ten years but the
delay cannot be said to be a ground for disallowing
the claim of interest. In Urmila Pandey's case (supra),
the matter was seriously contested and it was found
that the insurance cover note was not placed before
the tribunal or before the High Court. On the other
hand, it was placed before the Apex Court after about
25 years of the accident. In the view of Apex Court,
this fact itself was not sufficient to make
the insurance company liable to pay the awarded
money. The Apex Court further found that there was
contemporaneous evidence on record to show that the
cover note is genuine. In the case before us, there is
no dispute that the vehicle was insured and the policy
was in force on the date of the accident. The
genuineness of the policy has not been challenged
before us. Learned Counsel Mr. Hakim has pointed out
that in addition to this, the owner of the vehicle also
claimed compensation from the insurance company for
damage to the vehicle. On these facts, he contended
that it cannot be assumed that the insurance company
had no notice of the vehicular accident. The Apex
Court in Urmila Pandey's case, on the established facts
and also on the basis of the cover note produced after
25 years, awarded compensation against
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
the insurance company together with interest at the
rate of 18% per annum. Even if for a moment the
award of interest by Apex Court is considered obiter
dicta, in that case, obiter dicta of the Apex Court is
binding upon the Division Bench of this Court, and
therefore, we arc unable to uphold the contention of
the learned Counsel for the appellant that the interest
is not payable during the period
the insurance company was not impleaded. The aid
from the case of Oriental Insurance Company v.
Diwaliben Jayantilal (supra) taken by the learned
Counsel for the appellant, to our view, cannot be
permitted."
9. Thus, in accordance with the observations made in
the above referred judgment of Aminaben (supra), the
words 'no sum' under Section 149(2) of the M.V. Act
has to be strictly interpreted. If it was the intention
of the Legislature that no sum is payable, then it is
difficult to understand the logic that the
compensation is payable by the Insurance Company
but not interest. If the notice is not given to the
Insurance Company, the insurance company has a
right to approach the Tribunal for impleadment and
after the insurance company is impleaded, it can
defend the action on the grounds enumerated under
this sub-section. Thus on that basis, the observation
of the Tribunal is erroneous. The claimant would be
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
entitled to interest amount from the date of filing of
the Motor Accident Claims Petition.
10. The learned Tribunal has awarded an amount of
Rs.62,380/- with rate of interest @ 7.5.% per annum,
which the respondents were liable to deposit from the
date of filing of M.A.C.P. No.716 of 2002, with the
enhanced amount as Rs.33,000/- (Rs.95,380/- minus
Rs.62,380/-). In the result, the present respondents
are directed to deposit the amount within a period of
eight (8) weeks from the date of receipt of writ of
the order of this Court. It is further directed that
the claimant would be entitled to receive the
enhanced compensation @ 7.5% per annum from the
date of filing of the Motor Accident Claim Petition
and the disbursement of the amount be made as per
the judgment and award of the learned Tribunal.
11. In view of the above, the Appeal is allowed and
the judgment and award dated 21.10.2016 passed by
the learned Motor Accident Claims Tribunal (Aux.)
Panchamahals at Godhra in M.A.C.P. No.716 of 2002
stands modified to the above extent.
C/FA/1018/2017 JUDGMENT DATED: 24/01/2023
Record and proceedings, if any, be sent back to the
concerned Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
