Gujarat High Court
Sbi General Insurance Company Limited vs Vinodsinh Laxmansinh Zala on 23 April, 2025
NEUTRAL CITATION
C/FA/5429/2019 JUDGMENT DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5429 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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SBI GENERAL INSURANCE COMPANY LIMITED
Versus
VINODSINH LAXMANSINH ZALA & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 3,4,5,6,7
NOTICE SERVED for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Vibhuti Nanavati for the
appellant and learned advocate Mr. J. M. Barot for
respondent Nos.3 to 7. Though served, none appeared for
and on behalf of the respondent No.1 while notice could
not be served upon respondent No.2. Perused the record.
2. The challenge in the present appeal is by the appellant -
Insurance Company challenging the judgment and award
dated 28.6.2019 passed by learned Motor Accident Claims
Tribunal (Main), Patan in M.A.C.P. No.139 of 2017.
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3. The facts in brief of the case are as under:
* On 30.3.2017 at about 8.30 am, deceased
Ratilal Raval was going towards Harij road from signboard
of village Sodhav by foot on the left side of road to do
agriculture work and when he reached near the place of
accident, opponent No.1 driver of Truck bearing
registration No.GJ-3-W-8591 came in a rash and negligent
manner and dashed with the deceased. Resultantly, the
deceased sustained serious injuries and succumbed.
* Claimants being the legal heirs of the
deceased filed claim petition for a compensation of
Rs.20,00,000/- from the opponents. Opponents were
served with summons. Opponent nos.1 and 2 did not
contest the claim petition. Opponent No.3 - insurance
company contested the claim petition by filing Written
Statement at Exh.17. After framing of issues, claimant
No.1 - widow of deceased submitted her deposition at
Exh.22 and produced FIR, Panchnama, PM report and
other documentary evidence in support of claim petition.
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* After considering the evidence, learned
Tribunal partly allowed the claim petition by directing
opponents to pay an amount of Rs.13,62,792/- to the
claimants with interest @ 9% p.a. from the date of
application till realisation.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the appellant - insurance
company has filed the present appeal.
4. Learned advocate for the appellant has submitted that
learned tribunal has not considered the age of deceased
properly. It is submitted that learned tribunal has erred in
considering the age of deceased as 45. The claimant in the
claim petition as well as in the examination in chief has
stated age of deceased as 52 years. The election card
which is produced by the claimant indicates the birth year
of deceased as 1962 whereas the Aadhaar card of
deceased indicates the date of birth as 1.1.1972. The
inquest Panchnama which is placed on record at Exh. 25
also indicates age of deceased as 52 years. When there is
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discrepancy of age of deceased, medical evidence is
required to be considered.
5. Learned advocate for the appellant has placed reliance
upon the following judgment/order of the Coordinate
Bench of this Court:
A decision dated 22.11.2021 in First Appeal
No.3338 of 2021 in the case of The New
India Assurance Co. Ltd. v. Hamirbhai
Hajabhai Kamalia,
6. By relying upon the aforesaid decision, it is held that in the
case of discrepancy with regard to age of deceased,
medical evidence is best evidence which cannot be
brushed aside. No other submissions are made, except
above submissions.
7. Per contra, learned advocate for the respondent has
submitted that the claimants have mentioned the age of
deceased as 52 years in the claim petition as well as in the
oral examination. The Aadhaar card which has been
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produced by claimant indicates the age of deceased as 45.
The learned tribunal has rightly considered the age of
deceased as 45 years and, therefore, no interference is
required.
8. I have considered the submissions of learned advocates
for the respective parties and perused the Record and
Proceedings. It appears that only question for
consideration is what was the age of deceased on the date
of accident. The claimant in the examination in chief which
is recorded at Exh.22 has stated in paragraph No.6 that
the age of deceased was 52 years. Even, inquest
Panchnama which is produced at Exh.25 also supports the
say of claimant. When the best medical evidence was
available with learned Tribunal, the other evidences such
as Aadhaar card or election card is of no relevant. The
medical evidence cannot be brushed aside in considering
the age of victim.
9. In view of the decision The New India Assurance Co.
Ltd. v. Hamirbhai Hajabhai Kamalia (Supra), it has
been held that when the best medical evidence is
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available, learned tribunal ought not to have brushed
aside and the same is required to be considered.
10. In view of the above facts and circumstances, the claimant
is entitled to following amount of compensation under the
different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income :
Income per month 7700
(Plus)
Prospective Income (10%)
7700+770 8470
(Minus)
Personal Expenses
8470 X 1/4th = 6353 2117
(8470-2117 = 6293)
(Rs.6353 X 12 X 11) 8,38,596/-
2. Consortium (Rs.48,400 X 5) 2,42,000/-
3. Estate 18,150/-
4. Funeral Expenses 18,150/-
Total Compensation 11,16,896/-
(-) Awarded Amount 13,62,792/-
Excess Compensation / 2,45,896/-
Refund
11. Therefore, total amount of compensation would come to
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Rs.11,16,896/-, which is required to be awarded with 9%
p.a. interest from the date of claim petition till its
realisation, which would meet the ends of justice. It is
pertinent to note that learned Tribunal has awarded
Rs.13,62,792/- to the claimant, therefore, Rs.2,45,896/-
(Rs.13,62,792 - Rs.11,16,896) is required to be refunded
with 9% p.a. interest.
12. For the reasons recorded above, the following order is
passed:
[A] The present appeal is allowed
accordingly in above terms.
[B] The Insurance Company is entitled to
refund for an amount of Rs.2,45,896/- with
accrued interest thereon from the date of claim
petition till its realisation before the concerned
Tribunal, within a period of Four Weeks from the
date of receipt of this order.
[C] The Tribunal shall refund the excess to
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the appellant by `Account Payee Cheque' / `RTGS' /
'NEFT', after proper verification and after following
due procedure.
[D] Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith. No order
as to costs.
(D. M. DESAI,J)
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