Gujarat High Court
The United India Insurance Co Ltd vs Chandulal Chhaganbhai Savaliya on 9 September, 2024
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C/FA/3331/2010 JUDGMENT DATED: 09/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3331 of 2010 (For Exoneration)
With
R/FIRST APPEAL NO. 2058 of 2011 (For Enhancement)
With
R/FIRST APPEAL NO. 3332 of 2010 (For Exoneration)
To
R/FIRST APPEAL NO. 3336 of 2010 (For Exoneration)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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THE UNITED INDIA INSURANCE CO LTD
Versus
CHANDULAL CHHAGANBHAI SAVALIYA & ANR.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2024
Page 1 of 13
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ORAL JUDGMENT
1. The present First Appeals, under Section 173 of
Motor Vehicles Act, 1988, are preferred by the appellant -
insurance company - original opponent No.2, being aggrieved
by and dissatisfied with the impugned common judgment and
award dated 16.07.2010 passed by the Motor Accident Claims
Tribunal (Aux.), Gondal in Motor Accident Claim Petitions
No.133, 56 to 60 of 1998, by which the Tribunal has
awarded compensation with 9% per annum interest from the
date of filing claim petition/s till its realization, to the
claimant/s, holding Opponents No.1 and 2 i.e. owner and
insurance company of the Luxury Bus bearing registration
No.GJ-3-T-9537 liable, jointly and several.
2. Brief facts of the case, as per claimant/s, are as
under :
2.1 That on 02.01.1998, the deceased persons / injured,
along with others, were coming from to Jetpur from Ambaji
in a Luxury Bus bearing registration No.GJ-3-T-9537. While
reaching near Danta, at the Trishuliya Ghaat, while coming
down from the slop, as one vehicle was coming from the
opposite direction, the bus driver lost his control over the bus
and dashed with the railing installed at the sides of the
road. The bus after such collision, got turtle and got down
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the road. As a result, the deceased persons and others many
sustained serious injuries and ultimately, deceased persons
succumbed to the injuries and many others also sustained
serious injuries. Therefore, the legal heirs of the deceased /
injured claimants have filed claim petitions seeking
compensation with cost and interest for unnatural and
untimely death / injuries against the owner and insurance
company of the bus before the Tribunal.
2.2 Notices were served to the opponents. Opponent
No.1 - owner of the Luxury Bus has chosen not to appear
and contest the claim petition. Opponent No.2 - insurance
company of the Luxury Bus has appeared and filed its
written statement / objections, by disputing all the averments
made by the claimant in the claim petition.
2.3 The Tribunal has framed the issues. The oral as
well as documentary evidence were led by the rival parties
before the Tribunal. After considering the documentary as
well as oral evidence and submissions made at the bar, the
Tribunal has partly allowed the claim petition by awarding
compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
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appeal is preferred by the appellant - insurance company for
exoneration.
3. Learned advocate Mr. Mazmudar for the appellant
- insurance company (original opponent No.2) has mainly
raised contention before this Court in this group of appeals
that on one hand the Tribunal has observed in the impugned
judgment that there is a breach of terms of policy i.e. the
driver was not holding valid and effective driving license and
on the other hand, the Tribunal has held the owner and
insurance company of the Luxury Bus liable jointly and
severally. He has further submitted that the Tribunal has
rightly discussed this issue in detail in the impugned
judgment, but lastly held the insurance company liable along
with the owner of the bus, therefore, the impugned judgment
and award is required to be modified accordingly and the
appellant - insurance company may be exonerated. He has
further submitted that cross-appeal of the claimant may be
dismissed.
4.1 Learned advocate Mr. Tushar Sheth, who have
filed only one cross-appeal being First Appeal No.2058 of
2011 (for enhancement), in First Appeal No.3331 of 2010, for
the original claimant/s has submitted that the Tribunal has
rightly passed the impugned judgment and award. He has
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submitted that the impugned judgment and award is just and
proper, qua the observations with regard to negligence and
liability. He has submitted qua cross-appeal that the Tribunal
ought to have awarded compensation little more considering
the various decisions of the Hon'ble Apex Court. He has
submitted that qua other appeals, the Tribunal has properly
awarded compensation and no interference be made by this
Court. He has submitted that all the appeals of the
insurance company may be dismissed and his cross-appeal
may be allowed.
4.2 He has further submitted qua Cross-First Appeal
No.2058 of 2011, that the claimant was aged about 36 and
was serving in Chahna Processors as Dyer and his monthly
income was Rs.2,500/- at the relevant point of time. He has
submitted that the income from agriculture activities is not
added in this income. He has further submitted that the
Tribunal has not considered the prospective income as per
the decision of the Hon'ble Apex Court. He has submitted
that the claimant has 100% functional disability with regard
to earning capacity as he has amputation of left leg about
keen, then from hip. He has further submitted that in view
of the decision of the Hon'ble Apex Court, the Tribunal has
not awarded separate compensation under the head of loss of
amenities / happiness and enjoyment of life, which should be
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Rs.1 lakhs. He has also submitted that the Tribunal has
awarded little less compensation under the head of pain,
shock and suffering, which should be Rs.1,25,000/-. He has
submitted that the Tribunal has not considered the medical
future expenses keeping in mind the nature of injuries, which
should be Rs.50,000/-. He has also submitted that under the
head of Transportation, Attendant charges and Special diet,
the amount should be Rs.10,000/-, Rs.18,000/- and Rs.18,000/-,
respectively, instead of total Rs.16,000/- awarded by the
Tribunal.
5. It is noteworthy to mention that the provisions of
the Motor Vehicles Act, 1988 which gives paramount
importance to the concept of 'just and fair' compensation. It
is a beneficial legislation which has been framed with the
object of providing relief to the victims or their families.
Section 168 of the Motor Vehicles Act deals with the concept
of 'just compensation' which ought to be determined on the
foundation of fairness, reasonableness and equitability. It also
endeavors to make good the human suffering to the extent
possible and to also save families which have lost their
breadwinners from being pushed to wandering. Although such
determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and
fair compensation irrespective of the amount claimed by the
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claimants.
6. I have considered the submissions made by the
rival parties. I have perused the record and proceedings of
the Tribunal. I have gone through the impugned judgment
and award passed by the Tribunal.
6.1 The core contention raised by the learned advocate
for the appellant - insurance company in this group of
appeals is the liability fastened by the Tribunal upon the
insurance company along with the owner of the bus, on the
basis that the Tribunal has observed that the driver of the
bus was not holding valid and effective driving license and
therefore, there is a breach of insurance policy. The Tribunal
has, in its judgment impugned, discussed in detail about the
negligence and thereby has observed that the driver of the
Luxury Bus bearing registration No.GJ-3-T-9537 is liable for
the accident in question and that he was not holding valid
and effective driving license. It is a matter of record that the
driver was holding license of L.M.V. The witness - RTO
Officer has supported this fact by verifying the record.
Therefore, it cannot be said that the driver of the bus was
not holding driving license. However, the contention of the
insurance company is that the driver was not having the
license to drive heavy vehicle - luxury bus as endorsement of
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H.M.P.V. is not there in the license. The owner has not
appeared and contest the claim petition before the Tribunal
and therefore, there is no rebuttal by the owner of the bus
before the Tribunal. At this stage, it would be fruitful to
refer to the decision of the Hon'ble Apex Court in the case
of National Insurance Company Limited versus Swarnasingh
reported in 2004 ACJ 1, wherein it is observed that breach
of such condition, which do not affect the accident, cannot be
the reason of absolving the liability of the insurance
company. However, the Tribunal has observed that the
driver was not holding valid and effective driving license at
the time of accident and the owner would have the
knowledge about it, even though he has permitted the driver
to drive such vehicle and therefore, the owner is liable for
the accident in question.
6.2 In the present case, the claimants are the victims
and are the third party for the respondents, who were
travelling as authorised passengers, which is undisputed fact.
The Tribunal has observed that when the situation is such
where the claimants have to undergo for the long litigation,
it is not desirable to compel for another battle of recovery of
the amount of compensation from the owner of the bus, who
has not even taken care to remain present before the
Tribunal. Therefore, the Tribunal has passed an order of
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jointly and severally liable, at least for the payment of
compensation and thereby liberty is given to the insurance
company to recover the said amount of compensation from
the owner of the Luxury Bus in accordance with law. This
Court finds that the Tribunal has not committed any error.
In fact, the Tribunal has tried to balance the equity between
the parties, in which, this Court does not warrant any
interference. The impugned judgment and award is just,
proper and balanced.
6.3.1 With regard to the Cross-First Appeal No.2058 of
2011 filed by one of the claimant for enhancement is
concerned, from the record, it transpires that the claimant
was aged about 36 years at the time of accident and was
serving in Chahna Processor as Dyer as well as doing
agriculture activities and his monthly income is required to
be considered Rs.2,500/- at the relevant point of time, which
would be just and proper monthly income of the injured,
which was not properly considered by the Tribunal. Therefore,
it should be considered as monthly income of the injured and
considering the decision of the Hon'ble Apex Court, by adding
40% prospective income, which was not calculated by the
Tribunal, it would come to Rs.1,000/-, and therefore, total
income comes to Rs.3,500/- per month. Since the injured is
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aged about 36 years and has disability to the extent 100%
functional with regard to earning capacity as there is
amputation of left leg above knee then from hip, therefore,
Rs.3,500/- would be considered as loss of income per month.
Hence, Rs.3,500/- per month multiplied by 12 months would
come to Rs.42,000/- and applying 15 multiplier as per the
schedule of the Motor Vehicles Act as well as the ratio laid
down by the Hon'ble Apex Court in the case of Sarla Verma
versus Delhi Transport Corporation reported in (2009) 6 SCC
121, it would come to Rs.6,30,000/- as future loss of income,
which is required to be awarded to the claimant/s.
6.3.2 Since there is no dispute with regard to the
medical expenses, this Court does not want to interfere in it
and the same is confirmed.
6.3.3 Further, under the head of loss of amenities /
enjoyment of life is concerned, the Tribunal has not awarded
compensation, which should be Rs.1 lakh looking to the
injures and amputation. Further, under the head of pain,
shock and suffering as well as special diet, attendant charges
and transportation, as per the various decisions of the
Hon'ble Apex Court, it should be Rs.1,25,000/- and
Rs.46,000/-, respectively, which should be awarded to the
claimant. Further, considering the nature of accident and
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injuries, Rs.50,000/- should be awarded towards future
medical expenses.
6.3.4 Under the circumstances, and in view of the ratio
laid down by the Hon'ble Apex Court noted above, the
claimants are entitled to get more compensation as noted
above. Hence, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 6,30,000/-
Loss of amenities / enjoyment of life 1,00,000/-
Pain, Shock and Suffering 1,25,000/-
Special Diet, Attendant Charges and 46,000/-
Transportation
(Rs.18,000/- + Rs.18,000/- + Rs.10,000/-)
Medical Expenses 50,700/-
Future Medical Expenses 50,000/-
Total... 10,01,700/-
Less : Amount which is already awarded 5,50,700/-
Additional amount which is to be 4,51,000/-
awarded...
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7. Therefore, I hold that the claimant of First Appeal
No.2058 of 2011 is entitled to get the total amount of
compensation as mentioned hereinabove, which would meet
the ends of justice.
8. For the reasons recorded above, the following order
is passed.
8.1 The appeals filed by the Insurance Company are
disposed of to the aforesaid extent. The appeal filed by the
claimant is partly allowed.
8.2 The Insurance Company is directed to deposit the
entire awarded amount, if yet not deposited, including the
enhanced amount, as noted above, qua all the appeals as
well as qua Cross-Appeal filed by the claimant, with interest
and cost as decided by the Tribunal, from the date of claim
petition till its realisation, within a period of six weeks from
the date of receipt of this order. Rest of the direction(s) of
the Tribunal remain same. It would be open for the
Insurance Company to recover the said amount from the
owner of the Luxury Bus i.e. original opponent No.1 -
Kalpesh Bhaskarrai Jaiswal, in accordance with law.
8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal (including
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enhanced amount), with accrued interest thereon, if any, to
the respective claimant/s, by account payee cheque / NEFT /
RTGS, after proper verification and after following due
procedure.
8.4 While making the payment, the Tribunal shall
deduct the court fees, if not paid, in accordance with
rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
