National Insurance Company Ltd vs Hasmukhbhai Kadidas Patel
2023 Latest Caselaw 2271 Guj

     C/FA/753/2018                                  JUDGMENT DATED: 15/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 753 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                      NATIONAL INSURANCE COMPANY LTD.
                                   Versus
                     HASMUKHBHAI KADIDAS PATEL & 1 other(s)
==========================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR JOSHI for MR.HIREN M MODI(3732) for the Defendant(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 15/03/2023

                                ORAL JUDGMENT

1. The appellant-Insurance Company has

challenged the judgment and award dated

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

30.6.2017 passed by the learned 8th

Additional District & Sessions Judge, Abd

(Rural) at Mirzapur in MACP no.1148 of 2004.

2. Learned advocate Mr. Palak Thakkar for the

appellant submits that the learned Tribunal

has failed to observe that the accident

occurred between two motorcycles, which had

resulted into head on collusion and

therefore, negligence of 50% was required to

be attributed to both the motorcyclists and

thus, states that the insurance Company has

challenged the negligence aspect. Mr.

Thakkar submits that the learned Tribunal

ought to have considered that there would

not be any loss of income or actual loss of

income since the claimant is a Government

servant and in the cross-examination, the

claimant had admitted that while serving as

a Head Clerk at Sarv Vidhyalaya,

Gandhinagar, he had not suffered any loss of

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

income and during the time when he had

stayed for 3 months at home, his income

continued and further as per the evidence,

there was continuous increase in his salary.

Thus, Mr. Thakkar submits that the amount

has been wrongly assessed under the head of

future loss of income and actual loss of

income.

3. Countering the same, Advocate Mr. Joshi

submits that the learned Tribunal had failed

to observe that the claimant had suffered

72% permanent partial disability and was

serving as a Head Clerk and thus, submits

that the amount under the head of loss of

amenities of life has not been considered by

the Tribunal. Mr. Joshi submits that for

about 3 months, he could not attend his job

and has suffered pain, shock and suffering.

He was assisted by the attendants to deal

with the day to day work, but the amount has

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

not been granted under such heads.

4. As per the case of the applicant, on

26.5.2004, he was going on his motorcycle

bearing registration no. GJ-18 L-1093 along

with his wife to meet his brother who was

residing at Vrundavan Park at Odhav. He went

to Odhav from Gandhinagar via Naroda Odhav

Nikol Road and at about 02.45 p.m. when they

reached at public road in front of Sukan

Bungalows at Nikol Road, one another

motorcycle bearing registration no. GJ-1 DH-

9456 came from the front side in an

excessive speed and negligent manner,

endangering human life and dashed with the

applicant's motorcycle from the front right

side, as a result of which, he sustained

severe accidental injuries and his wife

sustained serious injuries. As per the

claimant, he was admitted in Pragna Ortho

Hospital as an indoor patient, wherein

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

operation performed on him on his right legs

2nd, 3rd, 4th and 5th fingers and in right legs

thigh, rod was inserted and in his right

hand finger beside little finger operation

was performed and rod was inserted.

5. Insurance Company has challenged the

negligence assessed at 80% of the driver of

the motorcycle bearing registration no. GJ-1

DH-9456, while 20% of the claimant himself.

6. The learned Tribunal has, after taking into

consideration the Panchnama produced on

record, noted that the width of the road was

sufficient enough for both the vehicles to

pass easily even from the opposite

direction. The learned Tribunal has observed

that the drivers of both the vehicles have

not kept reasonable distance, nor they tried

to reduce the speed in order to avoid the

road accident, but considering the material

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

evidence on record, the Tribunal observed

that the opponent vehicle could had taken

extra care to avoid the accident so that the

unfortunate accident could not have taken

place.

7. As per the claimant, he was on a public road

in front of Sukan bungalow at Nikol Road at

about 02.45 p.m.. Thus, the accident which

had occurred is in a day light. As per the

cross-examination, the accident had occurred

on mid road, but it has not come on record

that the claimant was on the wrong side of

the road. The claimant stated that he was in

his normal speed, while the opponent no.1-

driver of the offending vehicle has not

stepped into witness box to counter the case

of the claimant, while no suggestion has

been raised in the cross-examination of the

claimant that the accident had occurred

because of his negligence. Thus, in absence

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

of any contrary evidence on record, the

observation made by the Tribunal of

attributing 80% negligence of the driver of

motorcycle bearing registration no. GJ-1 DH-

9456 and that of 20% of the claimant

requires no interference and this Court

considers that such an assessment made by

the Tribunal is in accordance with the

evidence on record.

8. The claimant is a Head Clerk in Sarv

Vidhyalaya, Gandhinagar and he had never

suffered any loss in income rather got

increment in his salary, but the fact

remains that the claimant had suffered 72%

disability of lower limb and being a Head

Clerk, the disability has affected his

capacity to efficiently perform at the work

place and further, the disability may also

have affected his social and personal life.

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

Considering the same, this Court considers

that an amount of Rs.80,000/- is required to

be granted under the head of loss of

amenities of life as just and reasonable

keeping in view the work of the claimant.

9. As per the claimant, he could not work for

about 3 months and had remained at home as

he has suffered 72% disability for the lower

limb and 36% of the body as a whole. Both

the parties had accepted disability of 20%.

10. The Tribunal has granted the compensation as

under:-

Future loss of income Rs.2,56,320/- Actual loss of income + Rs.6,673/- Pain, shock and suffering + Rs.25,000/- Medical expenses + Rs.75,000/- Healthy diet, attendant, + Rs.10,000/-

         transportation
         Total amount                               = Rs.3,72,993/-
         Less 20% negligence of                        - Rs.74,598/-
         applicant
         Total compensation                         = Rs.2,98,395/-







   C/FA/753/2018                                           JUDGMENT DATED: 15/03/2023

11. The learned Tribunal has committed an error

in granting the amount under the head of

future loss of income and actual loss of

income, where the claimant has not sustained

any such loss and has further erred in not

granting any amount under the loss of

amenities of life.

12. Considering the age of the claimant, under

the head of pain, shock and suffering,

Rs.25,000/- has been granted and Rs.75,000/-

is granted towards medical expenses and

under the head of special diet, attendant

and transportation charges, Rs.10,000/- is

granted, which is just and proper.

13. The computation of the amount would be as

under:-

Loss of amenities of life Rs.80,000/- Pain, shock and suffering + Rs.25,000/- Medical expenses + Rs.75,000/- Special diet, attendant and + Rs.10,000/-

      transportation
      Total amount                                           = Rs.1,90,000/-





   C/FA/753/2018                                           JUDGMENT DATED: 15/03/2023

14. 20% contributory negligence of the claimant

is to be considered and hence, the said

amount is required to be deducted

Rs.38,000/- is to be deducted from the

compensation granted. Hence, the claimant

would be entitled to an amount of

Rs.1,52,000/- (Rs.1,90,000/- - Rs.38,000/-).

The Tribunal has granted Rs.2,98,395/-,

which is excess amount and therefore, the

claimant would be required to refund

Rs.1,46,395/- along with interest at the

rate of 9% per annum. The additional amount

shall be refunded with interest as provided

in this judgment within a period of eight

weeks from the date of receipt of the writ

of this Court.

15. It      is     stated          that     part         of     the       amount           is

    lying           in         FDR.         Let           the           amount             of

Rs.1,46,395/- with interest at the rate of

C/FA/753/2018 JUDGMENT DATED: 15/03/2023

9% per annum be deducted from the FDR and

rest of the amount lying in the FDR be given

back to the claimant upon proper

verification.

16. Accordingly, the appeal is partly allowed in

the above terms. The impugned judgment and

award be modified. Registry is directed to

send the record and proceedings back to the

Tribunal, if received.

(GITA GOPI,J) Maulik