Gujarat High Court
Cholamandalam Ms General ... vs Ram Dhundiya Vanzara on 27 September, 2023
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3009 of 2021
With
R/FIRST APPEAL NO. 1270 of 2022
With
R/FIRST APPEAL NO. 2859 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
==========================================================
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD
Versus
RAM DHUNDIYA VANZARA
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2,4,5,6
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/09/2023
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. The appellant-Cholamandalam MS General Insurance Co.
is the original opponent No.5, respondent Nos.5 and 6 are the
original claimants and respondent Nos. 1 to 4 are the original
defendant Nos.1 to 4 in the main proceedings. For the sake of
convenience and brevity, they shall hereinafter be referred to
as the appellant, claimants and respondent Nos.1 to 4
respectively. The Civil Procedure Code, 1908 be hereinafter
referred to as the 'Code' and Motor Vehicles Act, 1988 be
hereinafter referred to as the 'M.V. Act'.
2. By way of preferring this appeal under Section 173 read
with Section 166 of the M.V. Act, the appellant-Insurance
Company has challenged the judgment and award passed by
the 4th Additional District Judge, Kheda at Nadiad dated
11.02.2009 in Motor Accident Claim Petition No.1673 of 2009.
3. During the pendency of the present first appeal, it has
come to the notice of this Court that the original claimants
have also challenged the impugned judgment and award by
way of preferring a separate appeal, seeking enhancement of
the claim amount and the Insurance Company of the truck
driver, namely, Shriram General Insurance Co. has also
assailed the impugned award by way of preferring another first
appeal.
4. Considering the fact that the challenge in all the three
captioned appeals is to the self-same judgment and award
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
passed by the very same Tribunal, those were heard
analogously, and as such, are being disposed of by this
common judgment and order.
5. As the issue involved in all the appeals are based upon
same set of evidence and are connected with each other, the
First Appeal No.3009 of 2021 is treated as the lead matter.
6. Learned advocate Mr. Vibhuti Nanavati appearing on
behalf of the Insurance Company has submitted that the
judgment and award passed by the learned Tribunal is against
evidence available on record and contrary to the basic
principles of law and, therefore, the same is required to be
quashed and set aside. Learned advocate Mr. Nanavati has
submitted that for the purpose of deciding the issue of
negligency, the Tribunal has put reliance upon the decision
rendered in the earlier proceedings wherein 60% liability of
negligency was fixed on the head of the driver of the car and,
as such, in the case on hand also, the learned Tribunal had
fixed 60% liability on the head of the driver. The said view
adopted by the Tribunal is erroneous one because in the
earlier claim petition, the Insurance Company, owner and the
driver of the car were not joined as parties and, therefore, in
their absence negligency was decided. In the previous order
passed by the Tribunal, the driver of the car was held to be
60% negligent on the basis of the first information report and
the Panchnama. It is an admitted position of fact that the
driver of the car passed away in the accident and the
complaint was registered by the driver of the truck. Thereafter,
investigation ensued and 'A' summary report was filed by the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Investigating Officer which was accepted by the concerned
court. These basic facts were lying before the Tribunal in the
previous proceedings which was accepted and 60% negligency
is fixed on the head of the car driver, whereas here in the case
on hand, Insurance Company appeared and raised their
defense which was at all not considered and properly
appreciated by the Tribunal. The learned Tribunal has fixed
60% liability of negligency on the head of the car driver by
considering the principles of constructive res judicata which is,
in fact, not applicable in the case on hand.
7. Learned advocate Mr.Nanavati has submitted that the
claimant of the earlier claim petition was not an eye witness,
whereas in this claim petition, injured Nikitaben is the eye
witness and she has deposed in a very categorical terms that
the truck was coming with an excessive speed, and due to
negligence on the part of the driver of the truck who was
coming from the wrong side with an excessive speed, the said
incident took place. The said evidence has not been properly
appreciated or rather it would be said that the evidence of the
said witness is discarded at the time of deciding the issue of
negligency is concerned. Therefore, considering the above
stated factual aspect of the matter, the entire negligency, due
to which, the said incident has taken place, would 100% go on
the head of the driver of the truck and as a consequent effect,
car driver should be exonerated from the charge of negligency.
The second bone of contention raised by the learned advocate
Mr. Nanavati is that it is the settled proposition of law that at
the time of calculating the future expenditure of the claimants,
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
the learned Tribunal need not have to count the interest upon
the said amount as the said amount is yet not spent by the
claimants. He has put reliance upon the decision in the case of
R.D. Hattangadiv vs. M/s. Pest Control (India) Pvt. Ltd.
& Ors., reported in AIR 1995 SC 755 and submitted that since
1995, the principles enunciated by the Hon'ble Apex Court in
the aforesaid judgment is being followed by all the Courts
including the Hon'ble Apex Court as well as all the various High
Courts. Learned advocate Mr. Nanavati has submitted that
from bare perusal of the deposition of the injured eye witness,
it is found out that incident had occurred due to head on
collusion and as per the contents of the Panchnama, damages
are found on the right side, i.e, the driver side of the car and
on the left side of the truck and the said incident had occurred
on the approach road close to the express highway, and as per
the say of the claimants, the truck driver was trying to
overtake the rickshaw from the wrong side in a very excessive
speed and dashed with the car coming from the opposite
direction in a right side which resulted into the accident.
8. Learned advocate Mr. Nanavati has submitted that very
exorbitant amount was awarded by the learned Tribunal under
all the heads solely on the basis of assumption and
presumption without appreciating and considering the
evidence available on record in a true spirit and proper
perspective and, therefore, the judgment and award passed by
the Tribunal is required to be modified upto certain extent so
far as quantum of award of the claim is concerned. Learned
advocate Mr. Nanavati has submitted that considering the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
above stated factual aspect, appeal requires consideration and
by allowing the present appeal, the issue pertaining to
negligency of the car driver as well as the amount of
compensation calculated was excessively high in nature,
requires to be reduced as per the principle enunciated by the
Hon'ble Apex Court in the above referred decision and followed
by various High Courts.
9. Learned advocate Mr. Bhalodi who appears on behalf of
the original claimants has filed the first appeal for
enhancement of the claim amount awarded by the Tribunal.
Learned advocate Mr. Bhalodi has submitted that the claimant
is 20 years old girl and due to the said accident, she had
sustained serious injuries and since then living in a totally
vegetative state in a quadriplegia condition. Learned advocate
Mr. Bhalodi has submitted that at the time of the incident, she
was studying in T.Y. B.Com and after the college time, she was
doing job in the R.C. Thakkar Chartered Accountant Firm and
was earning Rs.4500/- per month and in the evening time, she
used to conduct the tuition classes, and by doing so, she was
earning Rs.2500/- to 3000/-. In short, in total, she was earning
Rs.7000/- per month, however, due to such accident, she could
not be able to secure the documents pertaining to her income.
The learned Judge has notionally considered the income of the
injured victim as Rs.2950/- per month. The said amount is very
meager amount as in the present price showing index, wherein
for the purpose of sustainment of life, considering the price
rise in the commodities, minimum Rs.20,000/- income ought to
have been considered by the learned Tribunal. To buttress his
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
submission, learned advocate has put reliance upon the
decision of the Hon'ble Apex Court in the case of Meena
Pawaia & Ors. vs. Ashraf Ali & Ors., reported in 2022 ACJ
528 (SC), 2019 ACJ 3164 (SC) and 2019 ACJ 1070 (Allahabad
High Court) and submitted that the father of the appellant
passed away years before the said unfortunate accident and in
absence of the father being elder member of the family, the
entire responsibility of earning the livelihoods for the entire
family came on the shoulder of the appellant-claimant.
Learned advocate Mr. Bhalodi has submitted that it is an
admitted position of fact that the incident occurred on
11.02.2009 and since then she is not able to stand on her own
legs and living totally in quadriplegia condition. In short, due to
the said incident, she was in a vegetative state and has to do
all her daily routine activities on bed and to fulfill her daily
routine activities, she needs help of someone else. The said
position is still continuing even in the year 2023, and as per
the opinion given by the doctor, who is giving treatment to her,
she has to spend her entire life in such a condition and there
will not be any chance of improvement in her condition in
future. Therefore, she is entitled to get more than
Rs.15,00,000/- under the head of pain, shock and suffering,
whereas the Hon'ble Court has granted Rs.3,00,000/- and by
granting such a meager amount, the Tribunal has committed a
grave error. In support of her claim, she has produced certain
documentary evidences and witnesses were also examined
vide Exhs. 67, 83, 85 and 80. In this regard, learned advocate
Mr. Bhalodi has put reliance upon the decision of the Hon'ble
Apex Court in the case of Nizam Institute of Medical
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Science vs. Prasanth S. Dhananka, reported in 2010 ACJ 38
(SC) and in the case of Kajal vs. Jagdish Chand, reported in
2020 ACJ 1042 and submitted that the ratio laid down by the
Hon'ble Apex Court in the above case laws are squarely and
adequately applicable to the present case. Therefore, the
amount of compensation under the head of pain, shock and
suffering requires to be enhanced accordingly.
10. Learned advocate Mr. Bhalodi has further submitted that
it is also an undisputed fact that at the time of accident, she
was 20 years old and to fortify her claim, she has produced her
school leaving certificate which clearly establishes that at the
time of the accident, she was only 20 years old young girl. The
appellant victim is suffering from very grave mental shock and
due to her physical condition, she is not in a position to live her
life normally. Due to the serious injuries sustained by her in the
said accident, her marriage prospects are ruined and she will
be forbidden from getting married throughout her lifetime and,
therefore, she is entitled to get amount of compensation of
Rs.5,00,000/- under the head of loss of marriage prospect.
Considering the principles enunciated by the Hon'ble Apex
Court in the case of Kajal vs. Jagdish Chand, reported in
2020 ACJ 1042 (SC), learned Tribunal ought to have considered
the amount of compensation at Rs.5,00,000/- under the said
head, however, instead of doing so, the learned Tribunal has
awarded only Rs.75,000/-.
11. Learned advocate Mr. Bhalodi has also submitted that
witnesses have also been examined to prove the medical
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
expenses incurred by the claimant during the treatment. Not
only that, since last 10 years, due to her bedridden condition,
she needs to take services of one attendant on 24X7 basis
continuously. She also needs to take treatment from
physiotherapist regularly. The medical expenditures incurred
by the claimant during the said treatment are very huge and
exorbitant in nature and, therefore, considering the oral and
documentary evidence available on record, the Tribunal ought
to have allowed Rs.10,00,000/- under the head of future
medical bills. The appellant has already incurred huge
medical expenses of Rs.16,28,971/- in past 10 years and,
therefore, considering the physical condition, evidences
available on record as well as the opinion of the experts,
Rs.10,00,000/- further is required to be granted for the purpose
of future medical expenditures which will have to be borne out
by the appellant for the purpose of getting simple treatment
regularly. Learned advocate Mr. Bhalodi has submitted that
considering the above stated factual aspect of the matter, this
is a fit case wherein amount of compensation is required to be
enhanced substantially almost on all heads.
12. Learned advocate Mr. Bhalodi has further submitted that
at the time of deciding the claim petition, the Tribunal has
fixed 60% liability on the head of the driver and owner of the
car, whereas 40% liability has been fixed on the head of the
driver, owner and insurance company of the truck. Admittedly,
the appellant-claimant is a third party and the incident is
occurred due to the fault on the part of the drivers of both the
sides as is evident from the evidence of the witnesses as well
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
as the from the contents of the Panchnama and the first
information report that there was head on collusion between
the two vehicles, and being a third party, as per the settled
proposition of law as enunciated by the Hon'ble Apex Court in
the case of Khenyei vs. New India Assurance Company
Limited, reported in 2015 (9) SCC 273, the injured victim is
entitled to get amount of compensation from either party. Here
in the case on hand, all the parties are available on record. The
copy of the award passed by the learned Tribunal who has
decided the claim petition of the deceased driver of the car is
produced, and if this Hon'ble Court would make a cursory
glance upon the contents of the operative part of the said
award, then it is found out that the condition of the vehicle,
contents of the Panchnama and the first information report
have been discussed in threadbare and passed the award and,
therefore, the impugned award passed by the Tribunal is not
required to be interfered.
13. Learned advocate Mr. Bhalodi has submitted that it is
the settled proposition of law that once negligence is decided
by one Tribunal in the case of accident and, thereafter,
subsequent matter pertaining to the same set of facts is being
filed or required to be decided, in that event, considering the
principle of law of constructive res judicata, the Tribunal who
has to decide subsequently, has to adopt the view taken by the
earlier Tribunal at the time of deciding the claim petition
provided that the earlier Tribunal has decided the said issue
after considering all the relevant materials available on record.
Here in the case on hand, admittedly, the Tribunal has already
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
adopted the view taken by the earlier Tribunal. Learned
advocate Mr. Bhalodi has submitted that copy of the judgment
and award passed by the earlier Tribunal is produced on record
and if Hon'ble Court would go through the observations and
findings given by the concerned Tribunal at the time of
deciding the said issue, then it is found out that the learned
Tribunal has arrived at the conclusion after discussing all the
parameters of the Panchnama as well as the first information
report and passed just, fair and reasonable order.
14. In such circumstances, referred to above, learned
advocate Mr. Bhalodi prays that there being merit in his
appeal, the same may be allowed.
15. Learned advocate Mr. Rathin Raval who appears on
behalf of the Insurance Company of the car has submitted that
the impugned judgment and award passed by the Tribunal is
not just, fair and reasonable and not based upon the sound
principles of law and, therefore, is required to be interfered
with at the end of this Court. Learned advocate Mr. Raval has
submitted that essentially the first appeal filed by him is
preferred mainly on two grounds viz. that the learned Tribunal
has committed a grave error in holding that the driver of the
truck is 40% negligent and, accordingly, liability has been
fastened on the head of the Insurance Company of the truck.
In fact, after the occurrence of the incident, immediately
complaint was filed by the driver of the truck, and if the
Hon'ble Court would go through the contents of the complaint,
then it is found that due to fault on the part of the driver of the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
car, the said incident has occurred. Not only that, on the
strength of the registration of the complaint, investigation was
commenced and, thereafter, 'A' Summary was filed before the
competent court which was accepted by the court simply
because of the reason that the driver of the car has passed
away, otherwise, he would have been held solely responsible
and charge-sheet would have been filed against him. Learned
advocate Mr. Raval has further submitted that immediately
after the registration of the complaint, the Investigating Officer
has gone to the place of occurrence and drawn the
Panchnama. If Hon'ble Court would go through the contents of
the Panchnama, in that event, it is found out that due to fault
on the part of the driver of the car, the said incident has
occurred. The Investigating Officer was examined as a witness
by the Insurance Company. He has deposed in a very
categorical terms that the accident has occurred solely due to
the mistake committed by the driver of the car. Therefore,
considering the above stated evidence available on record,
100% negligency is required to be fastened on the head of the
driver of the car. Despite the fact that the said evidence is
available on record, the learned Tribunal held 40% negligency
on the head of the driver by making undue emphasis upon the
decision rendered by the earlier Tribunal in the claim petition
filed by the legal heirs of the deceased. Learned advocate Mr.
Raval has submitted that it is true that the principle of
constructive res judicata operates at the time of deciding the
issue of negligence, but in certain instances, the Hon'ble Court
would have to deviate from the said principle. Learned
advocate Mr. Raval has put reliance upon the decision in the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
case of Cholamandalam MS General Insurance Company Ltd.
vs. Smt. Rinku Sen (Dutta) & Ors., MAC App No.9 of 2019,
decided on 04.12.2019 and submitted that it is held by the
Tripura High Court that the claim Tribunals might have
expressed a different opinion in connected claim petitions,
however, those awards were not challenged before the High
Court, and in that event, considering the materials available
on record, the Hon'ble High Court can take independent view.
16. Learned advocate Mr. Raval has submitted that all the
evidences and materials available on record clearly goes on to
show that due to sole negligency on the part of the driver of
the car, the incident of accident has occurred and, therefore,
100% liability requires to be fixed on the head of the driver of
the car, and as a consequent effect, the driver, owner and
insurance company of the truck is required to be exonerated
from the liability to pay the amount of compensation and,
accordingly, the judgment and award passed by the Tribunal is
required to be modified. Learned advocate Mr. Raval has
submitted that the second limb of his argument is that the
learned Tribunal has awarded very exorbitant and high volume
of amount on different heads and, therefore, the said amount
is required to be reduced considerably. Learned advocate Mr.
Raval has submitted that for the purpose of proving the
expenditures incurred by the claimants, attendant was
examined, and In her deposition, she has narrated the facts
about the injury and physical condition of the injured victim,
but bare perusal of her cross-examination crystalized the
entire position. She was not able to give proper answer to the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
simple question like that which kind of tablets were required to
be administered to the injured victim. Even she does not know
the name of the doctor who gives treatment to the victim. She
does not know about the timing as to when tablets are to be
administered to the victim and the effect of the tablet. In short
she does no know anything about the mode of treatment given
to the victim. In short, totality of the evidence of the said
witness shows that she was not in constant touch with the
injured victim and providing any kind of assistant to her.
Therefore, per days wages mentioned by the witness in her
deposition cannot be granted considering the standard of
services she was providing. Learned advocate Mr. Raval has
further submitted that same way, physiotherapist Dr. Hardik
Maheshbhai Soni was also examined by the claimant and
during the course of his cross-examination, certain very
important questions were being asked to him by the learned
advocate for the insurance company. The answer given by the
witness itself fortify the version of the insurance company and,
prima facie, it seems that the said doctor has not narrated the
correct facts before the concerned Tribunal. Therefore,
evidence of the said witness is also not believable. Even
though the learned Tribunal has put reliance upon the said set
of evidence and passed the impugned judgment and award
which even otherwise not believable one and, therefore, the
compensation awarded of Rs.8,40,000/- for attendant charges
is required to be reduced considerably and same way, the
amount awarded towards the medical expenditures incurred
by the witnesses during the treatment of physiotherapist is not
just and fair and the said amount is also required to be
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
reduced. Learned advocate Mr. Raval has further submitted
that the incident is occurred in the year 2009 and claim
petition was decided on 11.02.2019. Before pronouncement of
the award, the claimant has produced certain medical bills
which were duly exhibited, but at the time of arguments,
learned advocate for the insurance company has drawn
attention of the Hon'ble Court towards the contents of medical
bills which shows that certain bills were issued in the year
2015, 2016, 2017 and 2018 and majority of bills were issued in
the year 2018. The said medical expenditures were not borne
by the victim in the year 2009 and, therefore, in the absence
of any expenditure being made, she is not entitled to get any
interest on the said amount from the year 2009 and
considering the said request made by the learned advocate for
the insurance company, more particularly, the fact that certain
bills were issued in the year 2018-19, learned advocate for the
claimant has given broad consensus and candidly accepted the
version narrated by the insurance company and, therefore, in
the operative part of the order, the Tribunal has divided the
amount of interest of compensation from the particular period
and the said order passed by the Tribunal is just, fair and
reasonable and does not require any interference at the end of
this Court.
17. Mr. Raval has straneously submitted that the deposition
of the Investigating Officer as well as the contents of the
complaint and the Panchnama clearly goes on to show that the
incident of accident is occurred due to sole negligence on the
part of the driver of the car, i.e, the deceased. Unfortunately,
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
the driver of the car has passed away due to the said incident
and, therefore, the Investigating Officer has not filed charge-
sheet against him, but instead of that, an 'A' summary report
was filed, which was subsequently accepted by the concerned
court. Therefore, the evidence available on record clearly goes
on to show that the driver, owner and insurance company of
the truck are, at all, not in fault and, therefore, requires to be
exonerated from the liability to indemnify the amount of
compensation to the claimants, and as a consequent effect,
100% negligence should be fastened on the head of the driver,
owner and insurance company of the car.
18. We have heard the learned advocates appearing for the
rival parties and also gone through the relevant evidences
available on record.
19. In the present group of appeals, all the respective parties
have filed different appeals challenging the impugned
judgment and award. As the issue involved in the present
appeals are based upon the same set of evidence and the
same impugned award has been challenged, we have decided
to dispose of these appeals by way of common judgment and
award.
20. It is the case of the appellant-insurance company that
essentially the order of the Tribunal is challenged solely
putting reliance upon the previous decision rendered by the
Tribunal in the earlier proceedings, wherein, present insurance
company has not been joined as the party-respondent and,
therefore, the Insurance Company did not get an opportunity
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
to lead evidence and confront with the documents and
evidences produced by the claimant in that regard, and in
absence of the insurance company, if any decision is being
taken, it would not be binding to the Insurance Company in
the subsequent proceedings and, therefore, solely on the basis
of principle of constructive res judicata the liability fastened on
the head of the insurance company by computing and
calculating the liability of negligence by adopting the findings
given in the earlier proceedings is required to be modified.
21. Learned advocate Mr. Raval put much emphasis upon the
deposition of the Investigating Officer. He has straneously
submitted that collectively all the evidences available on
record show that the incident is occurred solely due to the
negligence on the part of the deceased, however,
unfortunately, the said person has expired and, therefore,
charge-sheet is not filed against him, but an 'A' summary was
submitted by the Investigating Officer which was accepted by
the learned Tribunal. Therefore, the evidence available on
record irresistibly goes on to show that the driver, owner and
insurance company of the truck are, at all, not in fault and,
therefore, requires to be exonerated from the liability and
100% negligency should be fastened on the head of the driver,
owner and insurance company of the car.
22. We have gone through the findings recorded by the
Tribunal so far as issue pertaining to negligence is concerned.
It is settled proposition of law that if number of claim petitions
are preferred by different parties based upon occurrence of
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
one and same incident, in that event, with an intention to see
that in future no further complications would arise and also to
avoid the multiplicity of the proceedings in future, all those
petitions are required to be consolidated, tried together and
decided by common judgment. Sometimes, it happens that
one claim petition is filed in different jurisdictional Tribunal and
another is in different jurisdictional Tribunal, in that event,
those matters cannot be clubbed and tried together, however,
if the cause of action is based upon the one and same incident,
in that event, after proper appreciation of the materials
available on record, if one Tribunal has passed an order and
decided the issue of negligency after considering and
appreciating all the evidences available on record, in that
event, considering the principle of constructive res-judicata,
the findings given by the said Tribunal is binding to the other
Tribunal and other Tribunal cannot deviate from said the view
adopted by the Tribunal in the earlier proceedings based upon
same set of evidence as principle of res judicata squarely
operates.
23. We have also gone through the record and proceedings,
more particularly, the award passed by the Tribunal so far as
the issue pertaining to negligence is concerned. It appears that
the Tribunal has arrived at a particular conclusion after
appreciating and considering all the materials available on
record, more particularly the contents of the Panchnama as
well as the complaint. The learned Judge has considered
almost all the aspects of the matter including the condition of
the vehicles. Not only that, after discussing all the evidences in
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
a threadbare manner, the learned Judge has come to a
particular conclusion. We have gone through the observations
made by the learned Judge at the time of deciding the issue of
negligence and we are of the opinion that reasons assigned
and conclusion arrived at by the learned Judge is correct one
and we do not find any infirmity and perversity in the said
decision. At the time of reaching to the final conclusion, the
Tribunal has recorded the following findings in paragraph Nos.
20, 21 and 22, the free English translation of which are as
under;
"(20) Now, if the documentary proofs produced
by the applicant in the matter are considered, the
Police Complaint regarding accident is produced at
Ex-46, it is lodged by the Respondent No.1 at
Chaklasi Police Station. In the said complaint, the
facts regarding the accident are stated that he had
left for going to Pune by driving the truck in question.
At around quarter to four hrs. in the evening, when
he was passing through Kanajari Cross-roads on
National Highway No.8, one truck was coming in front
from the side of Anand City. Meanwhile, one Indica
car came from behind, overtaking the said truck and
dashed with the truck of the Respondent No.1.
Therefore, the Respondent No.1 and his conductor
stopped the truck there itself and got down. Thus,
such is a statement of the Respondent No.1 in the
said complaint that while they were moving, the
truck was coming from the front, Indica car overtook
it and dashed with driver side of his truck.
(21) Now, the police personnel in this case,
immediately drew Panchnama of the scene of
incident, it is produced at Ex-47. If we see its
important facts, the scene of incident is indicated by
the Respondent No.1, it is a place on National
Highway No.8, in front of Krushna Cold Storage. At
the said place, one Truck of Tata company is lying on
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
the eastern side of road, it is facing towards
Vadodara. The mudguard at the driver side of said
truck was bent and silver colour is stuck there. Colour
of the truck is green. The damage costing around
Rs.Three Thousand is caused to said truck. From the
said place concerned, on spending out the road along
North-South direction at a distance of around 25
steps, one silver coloured Indica car is lying in the
western direction and it is facing east. The portion
from the bonet to the driver side door, main front
wind shield and the carrier on the car are broken.
Damage is also caused to the engine of said car.
Further, it is believed that the damage of around
Rs.Fifty Thousand is caused to the said car. At the
said place, there appear tyre marks indicating
application of breaks. Also, the wreckage of plastic
and glass pieces appear there. On spending out
gutter on the road, towards eastern direction from
the said place, there is Krushna Cold Storage.
Towards western direction, on spending out up to
down road, there are Jay Khodiyar hotel and spices
and other shops are located. Along North-South
directions, there is up to down National Highway No.8
along Ahmedabad to Vadodara and Vadodara to
Ahmedabad.
(22) Upon perusal of complaint and facts of
panchnama, it is clear that truck is in its right side
i.e. on the left side, whereas Indica car is lying facing
east direction, leaving north-south road, 25 steps far
from the aforesaid truck. In view of the same, the car
appears to have turned after the accident. Looking at
the truck, mud-guard of the driver side has bent, and
the mud-guard of front wheel has bent, and silver
colour of Indica car has stuck at the said place. In
view of the same, it appears that Indica car has
collided with mud-guard of the front wheel of the
truck on the driver side. Therefore, in view of the said
fact, it is not the case that truck had come in the
middle of the road. If it is the case, damage may
have been caused in the middle of the front side of
the truck. Therefore, vehicles have not collided heads
on. The investigation has been conducted by police
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
in connection with aforesaid accident. At the
conclusion of the investigation, final report in the
form of abated summary was filed against
Premalbhai, car driver of Indica, and the said abated
summary was granted by the Magistrate. Therefore,
submission advanced by Ld. Advocate for the
applicant about complete negligence of the truck
driver in the accident cannot be believed. In view of
the condition of the vehicle at the place and the fact
of negligence of the car driver, more negligence can
be attributed to the deceased Premalbhai, the car
driver, in the aforesaid accident. However, the
accident has taken place on the National Highway
No. 8. It does not transpire from the panchnama as
to how wide aforesaid road was and as to how far
truck was lying from the edge of the road.
Considering the National Highway, it is so wide that
two vehicles can pass together on both sides. As
mentioned in the complaint by truck driver, if Indica
car had come after overtaking the truck running
ahead of it, truck driver could have allowed the car to
pass by taking his truck to the side. Therefore, it
cannot be believed that there is no negligence on the
part of the truck driver at all. When some vehicle
comes after overtaking, driver of the vehicle on its
opposite side should slow down his vehicle so that
the said vehicle may pass. It is not the case that
truck driver has taken such care. Nothing has been
mentioned in the complaint that the car appeared
suddenly, but it is the statement of the respondent
no. 1 in the complaint that Indica car, having
overtaken the truck ahead of it, collided its side. He
has not mentioned in the complaint that he has
taken care to avert the accident. Therefore,
negligence can also be attributed to the truck driver
in this accident. In view of aforesaid all the facts, as it
appears that more negligence can be attributed to
Premalbhai, the car driver, than truck driver, I hold
negligence of Premalbhai - car driver to be 60% and
truck driver i.e. respondent no. 1 to be 40%, and
accordingly, I reply to the issue no. 1 in partly
affirmative."
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
24. To understand the controversy involved in the present
case, we would like to reproduce the excerpts of the paragraph
Nos. 6 to 21 of the decision of our own High Court in the case
of United India Insurance Co. Ltd. vs. Laljibhai
Hamirbhai & Ors., reported in (2007) 48(1) GLR 633, which
are as under;
"6. The limited question, therefore, arises before this
Court for consideration is whether the Tribunal could
have taken different view on the issue of negligence
than the one taken in former proceedings since the
bar of res-judicata operated. So far the eligibility of
the claimant to receive compensation and the
quantum of compensation are concerned, no dispute
has been raised by the learned advocates. I have,
therefore, concentrated on the sole controversy
whether principle of res-judicate could be applied in
the present case. Section 11 of the Civil Procedure
Code deals with res-judicata. It is as under :-
"11 : Res-judicata - No Court shall try any suit or
lease in which the matter directly and substantially
in issue has been directly and substantially in issue
in a former suit between the same parties, or
between parties under whom they or any of them
claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in
which the issue has been subsequently raised, and
has been heard and finally decided by such Court.
7. It is, therefore, contended by Mr. Medh that the
issue with regard to negligence was directly and
substantially in issue in the former proceedings,
namely MAC Application No. 48 of 1981 between the
same parties and that issue was heard and finally
decided by the Tribunal. Hence, the Tribunal in
subsequent proceedings involving the same issue
between the same parties could not have decided it
since bar res-judicata operated. It may be seen here
that in the earlier proceedings which were filed by
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Amratlal Devchandbhai against five respondents for
claiming compensation of Rs.25,000=00, Opponent
no. 2 of the said proceedings was, owner of the
offending truck who is also opponent no. 1 in the
present proceedings. Opponent no. 3 of the said case
is the appellant in the present appeal i.e. the
insurancecompany of the truck, against whom
notice under Section 96 (2) of the Act was taken out,
during the course of hearing, as the insurer of
opponent no. 1 namely Amin Transport Company.
Thus, both i.e., the appellant and the insured were
opponents in the earlier proceedings, as also
respondent no. 2 i.e., GSRTC. The issue of negligence
was raised in MAC Application No. 48 of 1981.
The Claims Tribunal decided that the case of the
claimant of that case and the bodily injury received
by him were on account of rash and negligent driving
of the both the vehicles namely S.T. Bus bearing
registration No. GRT 6988 and the truck bearing
registration No. GTB 6977. It held that so far as the
truck driver was concerned, the negligence was 70%
while negligence of the S.T., driver was 30%. Thus,
on the basis of the material produced before it, the
Tribunal gave the aforesaid finding. In the
subsequent proceedings namely, MAC Application
No. 520 of 1981 same issue was raised and the
contesting parties on the said issue happened to be
the same i.e., the insured and the insurer of the
truck and the GSRTC. In the subsequent proceedings
also, they are the opponents as already stated
above. The contention of Ms. Desai is that the
claimants in both the cases were different and,
therefore, provisions of Section 11 of the Civil
Procedure Code did not apply in this case. However,
according to Mr. Medh Section 11 of the Civil
Procedure Code can come into play even when there
are two contesting defendants, who are common in
both the cases. In view of these submissions, it will
now be necessary for me to refer to the decisions
cited and relied on by Mr. Medh.
8. The Privy Council in its decision rendered in the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
case of Syed, Mohamamd Saadat Ali Khan v. Mirza
Wiquar Ali Beg & Ors., reported in A.I.R. (30) 1943
Privy Council at pg. 115 has observed as under :-
"In order that a decision should operate as res
judicata between co-defendants three conditions
must exist : (1) There must be a conflict of interest
between those co-defendants , (2) it must be
necessary to decide the conflict in order to give the
plaintiff the relief he claims, and (3) the question
between the codefendants must have been finally
decided."
9. Thus, the Privy Council has laid down that if the
aforesaid three conditions stand satisfied, resjudicata
can operate between the co-defendants also. In the
present case these conditions are adequately
satisfied. The co-opponents are common, the issue of
negligence is decided finally and unless that issue
was decided no relief could have been given to the
claimant. In view of this decision, the submissions of
Ms. Desai cannot be accepted.
10. In the case of Iftikhar Ahmed & Ors v. Syed
Meharban Ali & Ors., reported in (1974) 2 SCC pg.
151, the Apex Court has held as under :-
"13. Now it is settled by a large number of decisions
that for a judgment to operate as re judicata
between or among co-defendants, it is necessary to
establish that (1) there was a conflict of interest
between co-defendants; (2) that it was necessary to
decide the conflict in order to give the relief which
the plaintiff claimed in the suit; and (3) that the
Court actually decided the question."
11. In the instant case therefore, it is very clear that
there was conflict of interest between the appellants
and respondent no. 2 of the present case and that
conflict was needed to be decided to give the relief
claimed by the claimant and the question of
negligence was actually decided by the Tribunal.
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
12. Same view has been taken by the Apex Court in
the case of Mahboob Sahab v. Syed Ismail & Ors.,
reported [1995] SCC pg. 693.
13. Mr. Medh also placed reliance on the decision of
the Apex Court in the case of the State of Punjab v.
Bua Das Kaushal reported in AIR 1971 SC pg.1676.
This decision has been cited by him to meet the
submissions of Ms. Desai that the appellant has not
specifically pleaded in the written statement the
contention with regard to res-judicata. In the
aforesaid case, the Apex Court has laid down the
principle that even if no specific plea has been
raised, if it appeared that the necessary facts were
present in the minds of the parties and were also
gone into by the Court, provisions of Section 11 of
the Civil Procedure Code be applied in a proper case.
It may be noted here that the written statement was
filed by the appellant on 15th December, 1981 and
the judgment that was delivered by the Tribunal in
MAC Application No. 48 of 1981 was on 22nd
December, 1981. It is true that the appellant could
have amended the written statement in view of the
subsequent development, however, the judgment
was immediately produced on record by the
appellant and it was taken in evidence and exhibited
at Exh. 27. Therefore, it can safely be said that these
facts were on the minds of the parties, in particular,
the contesting opponents and the same was looked
into by the Court since it was taken in evidence and
exhibited. Therefore, there was no reason for the
appellant to raise any specific plea with regard to bar
of res-judicata and that plea was presumed to have
been raised by the appellant.
14. Ms. Desai has submitted that the decision
rendered by the Tribunal in MAC Application No. 48
of 1981 was a decision merely given on the basis of
the affidavits filed by the parties, since the claim in
the said case was Rs.25,000=00. Therefore,
according to her, the issue with regard to negligence
could not be said to be directly and substantially in
issue in the said proceedings. This submission of Ms.
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Desai cannot be accepted. Though the proceedings
were decided on the affidavits i.e., in summary way,
as the claim of was Rs.25,000=00, nevertheless it is
a procedure prescribed under the Act, which was
duly followed by the Tribunal. The parties raised this
controversy effectively, and the same was also
effectively dealt with by the Tribunal as can be seen
from the judgment. The issue has been decided after
lengthly discussion of the evidence and by giving
anxious consideration to various aspects on this
count. Therefore, it can never be said that the said
finding was given by the Tribunal in a cursory
manner. In the decision rendered by the Apex Court
in the case of Vijayabai & Ors., v. Shriram Tukaram &
Ors., reported in reported in AIR 1999, (Vol. 86) SC at
pg.431, has held as under:-
"14. It would be impermissible to permit any party to
raise any issue inter-se where such an issue under
the very Act has been decided in an early
proceeding. Even if res judicata in its strict sense
may not apply but its principle would be applicable.
Parties who are disputing now, if they were parties in
an early proceeding under this very Act raising the
same issue would be stopped from raising such an
issue both on the principle of estoppel and
constructive resjudicata. The finding recorded even
by the High Court that possession of the landlord
could only be by an order under Section 36 (2) is also
not sustainable as that only conceived of the case
where tenant is dispossessed and landlord is seeking
to get back possession of the suit land from such
tenant. In the present case, there was no such
question. For this respondent no. 1 has to be at least
a tenant and whether he is a tenant stood concluded,
as aforesaid earlier, hence initiation of proceeding
under Section 49B cannot be sustained law.
15. The Apex Court has gone to the extent of
observing that even if the principle of res-judicata
may not apply in its strict sense, but its principle
would certainly be applicable. When the parties who
are disputing in subsequent proceedings, are also
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
parties in earlier proceedings under the very Act, the
principle of estoppel and rule of constructive res-
judicata will come into play, according to the Apex
Court.
16. In the decision rendered in the case of State of
Uttar Pradesh v. Nawab Hussain, reported in AIR
1977 SC pg. 1680, the Apex Court has said that the
rule of constructive res-judicata is in reality aspect or
amplification of the general principle. While
explaining the principle of rule of constructive res-
judicata it has said as under:-
"This is, therefore, another and an equally necessary
and efficacious aspect of the same principle, for it
helps in raising the bar of res-judicata by suitably
construing the general principle of subduing a
cantankerous litigant. That is why this other rule has
sometimes been referred to as constrictive res-
judicata which in reality, is an aspect or amplification
of the general principle."
17. In the decision of the Apex Court rendered in
the case of Satyadhyan Ghosal & Ors. v. Smt.
Deorajin Debi & Anr., reported in AIR 1960 SC 941,
the Apex Court has elaborately explained the need of
giving finality to judicial decisions and has held that
the principle of res-judicata is based on such need. It
has held as under:
"7. The principle of res judicata is based on the need
of giving a finality to judicial decisions. What it says
is that once a res is judicata, it shall not be adjudged
again. Primarily it applies as between past litigation
and future litigation. When a matter, whether on a
question of fact or a question of law has been
decided between two parties in one suit or
proceeding and the decision is final, either because
no appeal was taken to a higher court or because the
appeal was dismissed, or no appeal lies, neither
party will be allowed in a future suit or proceeding
between the same parties to canvass the matter
again. The principle of res judicata is embodied in
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
relation to suits in Section 11 of the Civil Procedure
Code; but even Section 11 does not apply, the
principle of res judicata has been applied by courts
for the purpose of achieving finality in litigation. The
result of this is that the original Court as well as any
higher court must in any future litigation proceed on
the basis that the previous decision was correct.
8. The principle of res judicata applies also as
between two stages in the same litigation to this
extent that a Court, whether the trial Court or a
higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-
agitate the matter again, at a subsequent stage of
the same proceedings. Does this however, mean that
because at an earlier stage of the litigation a Court
has decided an interlocutory matter in one way and
no appeal has been taken therefrom or no appeal did
lie, a higher Court cannot at a later stage of the
same litigation consider the matter again."
18. Ms. Desai contended that the parties in the
earlier proceedings and the subsequent proceedings
are not the same. In other words, according to her,
the claimant in MAC Application No. 48 of 1981 was
the passenger in the Bus, whereas in MAC
Application No. 521 of 1981, the claimant was the
cleaner of the truck. She, therefore, submitted that
Section 11 of Civil Procedure Code will not come into
operation. This submission of Ms. Desai also cannot
be accepted. Merely because the applicant in both
the cases were different, it does not mean that the
bar of res-judicata cannot operate since the
controversy was between the two defendants who
were parties to both the proceedings and that
controversy was required to be decided to give relief
to the applicants of both the cases. In the case of
Ishwardas v. The State of Madhya Pradesh & Ors.,
reported in AIR 1979 SC. pg.551, the Apex Court has
held that in order to sustain the plea of res-judicata it
is not necessary that all the parties to the litigations
must be common. All that is necessary is that the
issue should be between the same parties or
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
between the parties under whom they or any of
them claimed. This decision also takes care of
second limb of the submission of Ms. Desai that the
material that was produced in earlier case was not
before the Tribunal in the subsequent case. The
Apex Court has further said that once the questions
at issue in the two suits are found to be the same,
the fact that the material which led to the decision in
the earlier suit was not again placed before the Court
in the second suit, cannot make the slightest
difference. The plea of resjudicata may be sustained
without anything more, if the question at issue and
the parties are the same, subject of course to the
other conditions prescribed by Section 11 of Civil
Procedure Code.
19. Last submission of Ms. Desai is that the Tribunal
in earlier case has decided the issue of negligence
on misreading of the facts. However, on perusal of
the said judgment, it appears that the issue has been
substantially considered by the Tribunal. An
insignificant erroneous statement made at one place
by the Tribunal will not render the elaborate
discussion and appreciation of evidence
meaningless. Apart from that the Courts have gone
to the extent that even if the conclusion drawn by
the Court in earlier case is erroneous, the plea of res-
judicata can be entertained and the bar can be
applied in subsequent proceedings.
20. Before the Apex Court in the case of Sobhag
Singh & Ors. v. Jai Singh & Ors., reported in AIR 1968
SC pg. 1328, it was contended that the order passed
by the High Court was interlocutory order remanding
the proceedings to the Board of Revenue and on that
count the decision of the High Court would not
operate as resjudicata either before the Board of
Revenue or before this Court. The Apex Court has
thereafter held as under:-
"We are unable to accept that contention. Against
the order of the Board of Revenue rejecting the claim
of Jai Singh to be recognized as the adopted son of
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Sabhal Singh, a writ petition was moved in the High
Court and a prayer for quashing that order was
made. The High Court dealt with the dispute on
merits and held that the order of the Board of
Revenue holding that because of the Matmi Rules
the adoption of Jai Singh by Sabhal Singh without the
previous sanction of the Ruler could not be
recognized for the purpose of determining the
succession to the Jagir was erroneous. The High
Court did in making the final order direct the Tribunal
to decide the case in accordance with the law and in
the light of the observations made in the judgment,
but the direction was, in our judgment, a surplusage.
The High Court issued a writ in the nature of
certiorari quashing the order of the Tribunal. It was
unnecessary thereafter to direct or advise the Board
of Revenue to perform its statutory duty to decide
the dispute according to law. The Board of Revenue
had to decide the dispute in accordance with the law
declared by the High Court. All questions which had
been expressly decided by the High Court on contest
between the parties and other questions which must
be deemed by necessary implication to have been
decided were res-judicata and could not be reopened
before the Board of Revenue. In this appeal it is,
therefore, not open to the appellant to contend that
the decision of the High Court on the questions
decided in the writ petition was erroneous."
21. The Tribunal in the present case has referred
to Exh. 27 in paragraph 15 of its judgment, but it has
not entertained the plea of res-judicata since in its
opinion the parties have neither raised nor pleaded,
the bar of res judicata and, therefore, the Tribunal
has to decide the issue on the evidence before it.
This reasoning of the Tribunal does not appear to be
proper as already discussed above. Even if the plea
is not specifically raised, the adequate material has
been placed before the Tribunal by the appellant
making its intention explicit. If that be so, the
question of res judicata ought to have been
examined by the Tribunal and appropriate finding
ought to have been given on that issue. That has not
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
been done. Nevertheless, I have gone hrough the
judgment rendered in MAC Application No. 48 of
1981 by the Tribunal and in the said decision the
Tribunal has referred the evidence of various persons
connected with this case, which is in the form of
affidavits. It has also referred the panchnama of the
incident. The Tribunal has given categorical finding
on the basis of the material that the truck driver
ought to have maintained safe distance between the
two vehicles and the distance of 8 to 10 feet could
not be called safe distance. But again in paragraph
25, the issue of negligence has been discussed by
the Tribunal and thereafter it has come to the
conclusion that negligence of truck driver was 70%,
whereas that of ST driver was 30%. In view of the
same, by no stretch of imagination, it can be said
that the finding given by the Tribunal in earlier case
is not significant and it cannot operate as bar of res-
judicata in subsequent proceedings. In view of the
same, the contentions raised by Mr. Medh are
upheld."
25. As it is held by our own High Court that if the issue of
negligence is decided by one Tribunal after considering all the
materials available on record, in that event, the ratio so far as
negligence is concerned, is binding to the Tribunal who is
deciding the issue subsequently based upon the same set of
documents (evidence) and at the time of deciding the issue of
negligence arising out of the very same accident in a different
claim petition and, therefore, in view of the same, by no
stretch of imagination, it can be said that the findings given by
the Tribunal in earlier proceedings is not significant and cannot
operate as bar of res judicata in the subsequent proceedings.
Therefore, we are unable to accept the arguments canvassed
by learned advocate Mr. Nanavati and learned advocate Mr.
Raval and we hold that the findings recorded by the learned
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Tribunal so far as the issue pertaining to negligency is just, fair
and reasonable and do not require any interference at the end
of this Court.
26. Both the learned advocates appearing for the insurance
companies have vociferously argued that it is settled
proposition of law that the amount which is not spent and
considered as future expenditure, upon which, interest cannot
be given because said amount is not actually spent by the
injured victim behind the treatment or medical expenditure
and, therefore, interest upon the amount which is not utilized
cannot be sought for. In this regard we would like to quote
certain relevant observations made by the Hon'ble Apex Court
in R.D. Hattangadiv (supra) which read thus;
"So far the direction of the High Court regarding
payment of interest at the rate of 6% over the total
amount held to be payable to the appellant is
concerned, it has to be modified. The High Court
should have clarified that the interest shall not be
payable over the amount directed to be paid to the
appellant in respect of future expenditure under
different heads. It need not be pointed out that
interest is to be paid over the amount which has
become payable on the date of award and not which
is to be paid for expenditures to be incurred in
future. As such we direct that appellant shall not be
entitled to interest over such amount."
27. Thus, it is settled proposition of law and since beginning
the said principle of law is followed by the Hon'ble Apex Court
as well as the various High Courts that claimants are not
entitled to get any kind of interest upon the amount which she
or he has not spent for expenditures to be incurred in future
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
and, therefore, the said view adopted by the learned Tribunal
is required to be modified by removing the interest portion
from the said amount.
28. It is found out from the aforesaid discussion that at the
time of fixing the liability of negligence, the learned Tribunal
has discussed all the aspects of the matter and passed just,
fair and reasonable order and we do not find any infirmity in
the said findings and, therefore, we are of the opinion that so
far as the findings given by the learned Tribunal pertaining to
negligence is concerned, the same is correct one and we are in
full agreement with the said findings.
29. Facts with regard to accident and injury sustained by the
victim are not disputed by either parties. The Tribunal, after
detailed examination and on the basis of evidence available on
record, has considered 100% functional disability of the
claimant. Dr. Hardik Maheshbhai Soni was examined by the
claimants, and in his deposition, the said witness has very
categorically stated that the injured victim is totally bedridden
and all her daily routine activities are required to be carried
out on the bed and she is not in conscious state of mind and
according to him, she is suffering from 100% permanent
disability. The said witness was cross-examined by the learned
advocate for the insurance company, but nothing fruitful has
come out in the said cross-examination which would shake the
effect of the evidence of the said witness. It is also an
admitted position of fact that the evidence of the claimant
injured-victim was recorded through Court Commissioner and
the Court Commissioner had gone to the house of the claimant
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
for the purpose of recording the deposition and described the
condition of the claimant in his report. Therefore, it is
undisputed fact that the injured victim was living in a
vegetative state and is totally in a bedridden condition, all her
daily routine activities has to be carried out on the bed, and for
that purpose, she needs services of an attendant round the
clock 24 hours in a day and without getting support and
assistance from the attendant, she would not be able to do her
normal daily routine activities. The said set of evidence itself
shows and suggests that she was suffering from 100%
functional disability. As per the case of the prosecution, she
was 20 years old and studying in T.Y.B.Com at Vadodara. She
was having the responsibility to maintain her house and that is
why, she was doing the tuition classes for the purpose of
earning her livelihood. The entire responsibility to maintain the
house was on the shoulder of the victim because her mother is
a widow and doing the household work, and in the absence of
her father, she has to run and maintain her house and,
therefore, along with the study she was doing job as well as
running the tuition classes and by doing so, she was earning
Rs.7000/- per month. It is true that the claimants have not
produced any evidence to substantiate their claim so far as
income part is concerned except the oral evidence, but on the
strength of the evidence available on record, one can draw the
inference that in the present price soaring index, where the
prices of all the essential commodities and vegetables are
escalated, therefore, it is practically impossible to meet with all
the household expenses in the meager income of Rs.2950/- per
month.
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
30. As learned advocate Mr. Bhalodi has put reliance upon
the decision in the case of Meena Pawaia (supra) and
submitted that in the said case, the Hon'ble Apex Court after
taking into consideration the present rise of market prices of
all the household articles and essential commodities, has
considered the monthly income of the victim at Rs.10,000/-.
Herein the present case, the facts are more or less the same.
In the present case, the incident has occurred in the year 2009
and victim was doing job in the private firm. The facts of the
present case are identically similar to the facts of Meena
Pawaia (supra). Hence, at the time of deciding the income of
the injured victim, same analogy requires to be applied. As the
facts of both the cases are similar in nature, the same
yardstick is required to be applied in considering the income of
the victim and, therefore, the amount awarded by the Tribunal
may be enhanced from Rs.2950/- to Rs.10,000/-. We do not
agree with the said proposition of learned advocate Mr. Bhalodi
because at the time of preferring the claim petitions, claimants
have come with a case that at the time of accident, the victim
injured was earning Rs.7000/- per month and one cannot travel
beyond the scope of the pleadings, more particularly, when the
factum of income was narrated in the form of admission by the
claimants in the plaint and, therefore, the amount of
Rs.10,000/- as sought for at this stage, cannot be awarded.
31. Learned advocate Mr. Bhalodi has straneously
submitted that during the pendency of the petition
before the Trial Court, the claimant incurred huge
amount towards the medical expenses and considering
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
the physical condition of the claimant, there are all possible
chances that in future she will have to incur much more
amount towards the medical expenses and, therefore, claimant
has demanded more than Rs.10,00,000/-, however, in support
of the same, claimant has not produced any evidence on the
basis of which it can be said that in future the claimant will
have to spend this much amount under the head of future
medical expenditures, and in absence of any concrete material
in support of the claim made by the claimant in the
application, we deem it fit not to consider the said request
made by the learned advocate Mr. Bhalodi. It is matter of fact
on record that whatever amount the claimant has spent
towards the medical expenses, has already been considered
by the learned Tribunal.
32. As we have gone through the evidence available on
record, we are of the opinion that the learned Tribunal has
awarded Rs.2950/- as monthly income of the injured victim. As
discussed herein above, it is found out that considering the
present price soaring index, the said amount is too meager
amount and it is practically impossible to sustain the family in
the income of Rs.2950/-. Therefore, considering the present
trend of the market, we hold notional income of the injured
victim at Rs.4,000/- per month instead of Rs.2950/- and as per
the principle enunciated by the Hon'ble Apex Court in the case
of National Insurance Co. vs. Pranay Sethi, reported in
2017 (16) SCC 680, 40% rise under the head of future prospect
is required to be given (4000X40%=1600). Therefore, in our
view, the claimant is entitled to get Rs.5600/- per month
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
(Rs.4000/- + Rs.1600/-=Rs.5600/-). At this juncture, we would
like to apply multiplier of 18 as per the landmark decision in
the case of Sarla Varma vs. Delhi Transport Co., reported
in 2009 (6) SCC 121 as at the time of incident, the age of the
injured victim was 20 years. Therefore, the claimant is entitled
to get total amount of compensation under the head of future
loss of income at Rs.12,09,600/- (5600x12x18=12,09,600/-),
whereas the learned Tribunal has awarded Rs.8,76,960/- under
the said head, which in our opinion, is required to be enhanced
to Rs.3,32,640/-.
33. At this stage, it would be appropriate to refer to
the observations made by the Apex Court in the case
of Kajal (supra). In the said case, the Apex Court, while
examining the case of fatal accident, whereby a young girl of
12 years had suffered 100% physical disability, has been
awarded the compensation under the following heads:
S. No. Heads Amount
(i) Expenses relating to treatment, Rs.2,50,000/
hospitalization and transportation.
(Ii) Loss of earnings (family Rs.51,000/
members).
(iii) Loss of future earnings. Rs.14,66,000/
(iv) Attendant Charges. Rs.21,60,000/
(v) Pain, suffering loss of Rs.15,00,000/
amenities.
(vi) Loss of Marriage prospects. Rs.3,00,000/
(vii) Future medical treatment. Rs.5,00,000/
34. With regard to the fixing of attendant charges the Apex
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Court in the case of Kajal (supra) has observed thus:
"25: Having held so, we are clearly of the view that the
basic amount taken for determining attendant charges is
very much on the lower side. We must remember
that this little girl is severely suffering from
incontinence meaning that she does not have control
over her bodily functions like passing urine and faeces.
As she grows older, she will not be able to handle her
periods. She requires an attendant virtually 24 hours a
day. She requires an attendant who though may
not be medically trained but must be capable of handling
a child who is bed ridden. She would require an
attendant who would ensure that she does not
suffer from bed sores. The claimant has placed
before us a notification of the State of Haryana of the
year 2010, wherein the wages for skilled labourer is
Rs.4846/ per month. We, therefore, assess the cost of
one attendant at Rs.5,000/ and she will require two
attendants which works out to Rs.10,000/ per
month, which comes to Rs.1,20,000/ per annum,
and using the multiplier of 18 it works out to
Rs.21,60,000/ for attendant charges for her entire life.
This takes care of all the pecuniary damages."
35. A perusal of the observations made by the Apex Court
reveals that though there was no evidence adduced with
regard to the attendant charges, the Apex Court has
considered the notification of the State of Hariyana of 2010
with regard to the fixation of wages for workmen.
The Apex Court has considered Rs.4,846/ p.m. of the
skilled workman and accordingly fixed the expenses of
two (02) attendants and accordingly has awarded
Rs.21,60,000/.
36. Learned advocate Mr. Bhalodi has submitted that the said
incident is occurred in the year 2009 and as per the norms of
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
wages fixed by the State Government for the skilled labourers
so far as year 2010 is concerned was Rs.4210/-. Learned
advocate Mr. Bhalodi has put reliance upon the judgment of
our own High Court in the case of Bhavik @ Bhavin
Dwarkadas Vithlani vs. Ganpathsinh Manubhai Jadeja,
First Appeal No.2015 of 2018, more particularly, para-12 and
submitted that after considering the materials available on
record, the Hon'ble Court observed in the operative part of the
order that in the year 2010, wages of skilled labourers was
fixed at Rs.4210/- and, therefore, the same analogy and
principle adopted by the Coordinate Bench of this Hon'ble
Court is required to be considered by this Court at the time of
deciding the issue involved in the present case. Learned
advocate Mr. Bhalodi has further submitted that it is an
admitted position of fact that the claimants have not produced
any documents to show that what was the minimum wages for
the skilled labourers in the year 2009-10 but the said fact is
already reflecting in the operative part of the order of this
Hon'ble Court and, therefore, on the strength of the said
material available on record, the Hon'ble Court has to consider
it and pass appropriate order. It is found out from the record
that from the date of incident till the evidence of the witness
of the claimant was recorded, claimant has produced certain
documents which prove that from day one she used to take
treatment of the physiotherapist, and on regular interval for
the purpose of physical exercise, physiotherapist used to visit
her house and the said physiotherapist, in his deposition, has
narrated the physical condition of the injured victim in a great
detail and as per the deposition of the said witness, the
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
injured victim will have to take the services of the attendant
for the entire lifetime in future. The Tribunal has granted an
amount of Rs.8,40,000/- under the head of attendant charges
by considering the amount of Rs.2000/- p.m. towards
attendant charges. Learned advocate for the insurance
company has put much resistance about the services rendered
by the attendant. He has opined that certain questions were
being asked by the learned advocate for the insurance
company to the witness-attendant, however, she could not be
able to give proper answer to the question asked by the
learned advocate of the insurance company. Therefore, it can
be said that no charges can be granted under the said head.
It is also found out that the evidence of the said witness is not
found to be trustworthy and reliable, but the fact remains that
due to ill-health and vegetative physical condition of the
injured victim, she needs services of physiotherapist and
attendant on regular basis and as per the parameters
prescribed by the Hon'ble Apex Court in the case of Kajal
(supra), wages of attendant and physiotherapist can be fixed
as per the norms fixed by the State Government for skilled
labourers. As the claimants are miserably failed to lead
evidence to the effect that what was the actual wages of
skilled workers, this Court is of the considered opinion that
looking to the wages of the skilled labourers fixed by the
State Government by issuing official notification published in
the Government Gazette. In that event, it would be
appropriate to fix the expenses of Rs.2500/- for
physiotherapist and Rs.1500/- for the attendant charges,
which in total come to Rs.4000/- (2500+1500=4000) per
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
month, which after applying multiplier of twelve, would come
to Rs.48,000/- per annum. As per the principles enunciated by
the Hon'ble Apex Court in the case of Kajal (supra),
considering the tender age of the injured victim of 20 years,
we would expect that at least exigency of life of the injured
victim can be considered upto 55 years. In that event, she is
entitled to get charges under the head of attendant charges,
more particularly, for the purpose of getting services of
physiotherapist and attendant which would be required to be
calculated by using the multiplier of 35. Thus, the total
amount would come to Rs.16,80,000/-
(4000x12x35=16,80,000/-), whereas claimant has claimed
Rs.15,00,000/- under the said head. An identical issue came up
before the Supreme Court in the case of Mona Baghel &
Ors. vs. Sajjan Singh Yadav & Ors., reported in 2022
Livelaw (SC) 734, in which, the amount of compensation
granted by the Hon'ble Apex Court was higher than what was
claimed by the claimant in that petition. We would like to
quote the relevant observations made by the Hon'ble Apex
Court in this regard, which read thus;
"The law is well settled that in the matter of
compensation, the amount actually due and payable
is to be awarded despite the claimants having
sought for a lesser amount and the claim petition
being valued at a lesser value.
Our view, is fortified by the decision of this Court in
the Case of Ramla and Others Versus National
Insurance Company Limited and Others 2019 2 SCC
192, wherein, it is held as under:
"Though the claimants had claimed a total
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
compensation of Rs.25,00,000 in their claim petition
filed before the Tribunal, we feel that the
compensation which the claimants are entitled to is
higher than the same as mentioned supra. There is
no restriction that the Court cannot award
compensation exceeding the claimed amount, since
the function of the Tribunal or Court under Section
168 of the Motor Vehicles Act, 1988 is to award "just
compensation". The Motor Vehicles Act is a
beneficial and welfare legislation. A "just
compensation" is one which is reasonable on the
basis of evidence produced on record. It cannot be
said to have become time-barred. Further, there is
no need for a new cause of action to claim an
enhanced amount. The Courts are duty-bound to
award just compensation. (See the Judgments of this
Court in (a) Nagappa v. Gurudayal Singh, (b) Magma
General Insurance Co. Ltd. v. Nanu Ram, (c) Ibrahim
v. Raju."
37. Considering the fact that the injured had to visit the
hospitals at Vadodara and Anand on regular basis for the
purpose of treatment in a private vehicle and the injuries
sustained by the claimant, we deem it proper to fix the
amount of special diet and transportation charges at Rs.1000/-
per month, which comes to Rs.12,000/- per annum and after
applying multiplier of 18, the total amount which the claimant
is entitled to receive under the head of special diet and
transportation charges, would come to Rs.2,16,000/-, however,
the Tribunal has awarded Rs.75,000/- under the said head,
which is required to be enhanced from Rs.75,000/- to
Rs.2,16,000/-. The claimant is also entitled to get
enhancement under the head of loss of marriage prospect.
The Tribunal has awarded Rs.75,000/- which is quite meager
and, therefore, which is required to be enhanced from
Rs.75,000/- to Rs.3,00,000/-. We do not propose to enhance
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
any amount of compensation under any other heads.
38. The claimant is not entitled to get any enhancement
under the head of actual loss of income of Rs.3,68,300/- as
this Court has considered and awarded compensation on the
head of future loss of income considering 100% functional
disability as a whole. The table showing the heads under
which the amount is enhanced is as under;
Heads of Compensation Amount Enhanced amount Total amount (In Rs.)
(in Rs.) (in Rs.) after enhancement
awarded by the awarded
Tribunal by this Court
Future loss of income 8,76,960/- 3,32,640/- 12,09,600/-
Special diet and 75,000/- 1,41,000/- 2,16,000/-
transportation
charges
Loss of marriage 75,000/- 2,25,000/- 3,00,000/-
prospect
Attendant charges 8,40,000/- 8,40,000/- 16,80,000/-
Total Total enhanced Total amount to be
awarded amount by this paid after
amount by Court enhancement
the Tribunal (in Rs.) (in Rs.)
(In Rs.)
18,66,960/- 15,38,640/- 34,05,600/-
We would also like to reproduce hereunder the amount
awarded by the Tribunal under other heads in which we do not
want to make any kind of enhancement;
Heads of Amount Enhanced Total amount
Compensation (in Rs.) amount (In Rs.)
awarded by the (in Rs.) after
Tribunal awarded enhancement
by this Court
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
Pain, shock and 3,00,000/- - -
suffering
Medical 16,28,971/- - -
expenses
Actual loss of 3,68,300/- - -
Income
Loss of 2,00,000/- - -
expectation
Loss of 3,00,000/- - -
amenities
Total 27,97,271/-
Thus, the total amount of compensation after
enhancement would be as below:
Awarded by the Tribunal = 46,64,231=00
(18,66,960+27,97,271)
Enhanced by this Court = 15,38,640=00
Total = 62,02,871=00
as against the compensation of Rs.46,64,231/- awarded by the
Tribunal.
The judgment and award of the Tribunal is modified
accordingly to the aforesaid extent.
39. Accordingly, the claimant becomes entitled to the
additional compensation of Rs.15,38,640/- over and above
awarded by the Tribunal.
40. The aforesaid amount of Rs.62,02,871/-
NEUTRAL CITATION
C/FA/3009/2021 CAV JUDGMENT DATED: 27/09/2023
undefined
(Rs.46,64,231/- awarded by the Tribunal + Rs.15,38,640/-
enhanced by this Court) with interest @9% per annum shall be
deposited before the Motor Accident Claims Tribunal in
terms of the present judgment, after deducting the
amount if already paid by the respondent-Company within a
period of eight (08) weeks from the date of receipt of
copy of this order. It is clarified that out of the aforesaid
amount, the claimants are not entitled to get any interest upon
the amount under the head of attendant charges, i.e,.
16,80,000/- as per the ratio laid down by the Hon'ble Apex
Court in the case of R.D. Hattangadiv (supra). The rest of the
judgment and award passed by the Tribunal shall remain as it
is.
41. Appeals are allowed to the aforesaid extent. No
costs.
(ASHUTOSH SHASTRI, J)
(DIVYESH A. JOSHI,J)
VAHID
