Gujarat High Court
Iffco Tokio General Insurance Company ... vs Wahed Rahimna Sama on 23 April, 2025
NEUTRAL CITATION
C/FA/2076/2017 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2076 of 2017
With
R/CROSS OBJECTION NO. 295 of 2024
In
R/FIRST APPEAL NO. 2076 of 2017
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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
Versus
WAHED RAHIMNA SAMA & ORS.
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Appearance:
MR KRUNAL R SAKSENA(5915) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/04/2025
ORAL ORDER
1. Heard Mr. Krunal R. Saksena, learned advocate for
the Appellant and Mr. Hiren M. Modi, learned advocate
for the Respondent No.1. Though rule served, nobody
appeared for and on behalf of respondent Nos.2, 3 and 4.
Perused the record.
2. The challenge in the present appeal is by the
original opponent No.4 challenging the judgment and
award dated 24.11.2016 passed by the learned Motor
Accident Claims Tribunal (Auxi. 3) at Bhuj-Kutch in
M.A.C.P. No. 478 of 2012.
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3. The brief facts of the case are as under:
3.1 The applicant was travelling in Truck No. GJ-12T-
7693 on 11.11.2012 as a labourer. Opponent No.1, being
the driver of the said Truck was rash and negligent and
all of a sudden he lost control over the steering which
resulted into an accident and because of the rash and
negligent driving of the driver of the Truck, the Truck
turned turtle. Resultuntly, the claimant as well as other
labourers sitting in the Truck got injured.
3.2 FIR was lodged against the driver of the Truck.
Claimant filed Claim Petition claiming compensation of
Rs. 15 lakhs. Opponent Nos.1, 2 and 3 who are the
driver and owners of the vehicle, though served, did not
contest the application. Opponent No.4 insurance company
resisted the claim by filing written statement at Exh.
18B. Claimant examined himself at Exh. 24 and also
examined Doctor Suresh Doshi at Exh. 26, claimant
examined eye witness who was sitting in the said Truck
at Ex-46. Claimant produced FIR, Punchnama, Certificate
issued by G. K. General Hospital, Bhuj, Discharge Card
issued by Civil Hospital, Ahmedabad, case papers of G.
K. General Hospital, Bhuj, Discharge Card issued by G.
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K. General Hospital, Bhuj, Discharge Summary issued by
Orthopedic Surgeon, Doctor Suthar, Disability Certificate
issued by Doctor Suresh Doshi, Charge-sheet, Medical
Bills and other relevant documents in support of claim
petition. After considering the evidence on record, learned
Tribunal partly allowed the claim petition granting
compensation of Rs.13,48,393/- in favour of claimants and
against all opponents with 9% interest to be deposited
from the date of petition till realisation.
4. Being aggrieved and dissatisfied with the impugned
judgment and award, opponent No.4 - insurance company
filed the present First Appeal and the cross objections
are filed by claimants for enhancement of compensation.
5. Learned advocate for the appellant submitted that
the insurance company is not liable to satisfy the award
as no premium is paid by the owner of the vehicle
covering the risk of the employees. It is further
submitted that claimant was a gratuitous passenger and
therefore the insurance company cannot be held liable to
pay compensation for the reason of breach of terms and
conditions of the policy. It is also submitted that in the
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cross-examination, claimant has admitted that he was not
travelling in the Truck with goods. Even the FIR also
does not state that the claimant was travelling with
any goods and the punchnama also support the fact that
claimant was not having any goods at the time of
accident and therefore the claimant was a gratuitous
passenger.
6. Learned advocate for the appellant has placed
reliance upon the copy of the policy and submitted that
no premium is charged for the employees and personal
accident to passengers. It is also submitted that the
claimant was sitting in the loading area of the Truck
and therefore there is no reason not to believe that the
claimant was a gratuitous passenger. Claimant has not
examined the employer and no other co-employees are
examined by the claimant and therefore, the claimant
cannot be said to be an employee travelling in the
Truck. Hence, there is a clear breach of the terms and
conditions of the policy as well as the provisions of the
Motor Vehicles Act, more particularly, Section 166 of the
Motor Vehicles, Act. Insurance company has wrongly
been held liable for the compensation.
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7. Per contra, learned advocate for the respondent No.1
- claimant has submitted that the claimant was an
employee of opponent No.2 and was doing labour work
on the Truck. On the date of accident, claimant was
travelling as a labourer and as opponent No.1 lost
control over the Truck due to rash and negligent driving,
the Truck turned turtle. Resultantly, claimant sustained
serious bodily injuries such as fracture on waist, on both
legs and buttocks and the place of defecate was severely
damaged. Claimant was initially taken to G.K. General
Hospital, Bhuj, where he was admitted as an indoor
patient from 11/11/2012 to 12/11/2012 and was treated.
But as his treatment was not possible there, he was
referred to the Higher-Center Civil Hospital, Ahmedabad
for specific treatment, where he was admitted as an
indoor patient and an operation was performed on his
stomach and a tube was inserted in the stomach for
defecation. He was admitted as an indoor patient from
12/11/2012 to 02/12/2012, after which he was again taken
to General Hospital, Bhuj and there he was admitted as
an indoor patient from 03/12/2012 to 01/01/2013, from
where he was again shifted for special treatment to
Patel Hospital and Super Specialty Center, Bhuj, where
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he was admitted as an indoor patient and plastic
surgery was done on his excretory area and he was
admitted as an indoor patient from 01/01/2013 to
20/02/2013, from where he was taken for special
treatment to Dr. Deepak Suthar, a private orthopedic
surgeon in Bhuj, where he was admitted as an indoor
patient and his right leg and waist were operated. He
was admitted as an indoor patient from 20/02/2013 to
03/05/2013. Claimant is still undergoing treatment and he
is not able to defecate (passing of stool) naturally, but
he has to defecate (pass the stool) through a tube
inserted in his stomach and a bag for defecation (passing
of stool) has to be tied and attached to his stomach
continuously. As per the medical evidence, claimant will
have to live with a bag for defecation (passing the
stools) for the rest of his life.
8. With regard to injuries, the claimant has produced
certified copy of the MLC certificate issued by General
Hospital, Bhuj, original discharge card issued by Civil
Hospital, Ahmedabad regarding the injuries and
treatment he has undergone, original copy of the case-
paper book given by General Hospital, Bhuj regarding
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the treatment given to him, the original discharge card
given by Patel Hospital and Super Specialty Center, Bhuj
regarding the treatment given to him, the original
discharge summary given by Orthopedic Surgeon Dr.
Deepak Suthar regarding his treatment is produced. All
these documents are requested to be taken into
consideration.
9. It is submitted that because of the accidental
injuries, claimant was admitted in various hospitals and
the documents such as treatment papers and discharge
papers are placed on record. Disability certificate issued
by Doctor Suresh Doshi which is produced at Exh. 36
has assessed disability at 80%, however, learned Tribunal
has considered disability at 70% without any contrary
evidence. Considering the injuries and the disability, the
claimant cannot walk independently and has defects in
attending nature's call. Considering the aforesaid
disabilities, earning capacity be considered accordingly.
10. Claimant on the date of accident was aged about 33
years and was a labourer. In absence of any
documentary evidence, learned Tribunal ought to have
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considered the rates of minimum wages prevailing on the
date of accident. On the date of accident, rates of
minimum wages was Rs.5020/- p.m. however, learned
Tribunal has assessed income at Rs.3,000/- p.m. which is
on a lower side. In catena of decisions, the law has been
laid down that while considering the income of victim, in
absence of any documentary evidence, the yardstick for
considering the income is rates of minimum wages. It is
further contended by learned advocate for the claimant
that the pain which claimant has undergone because of
the injuries, the period of hospitalization, learned
Tribunal has assessed less compensation under the head
of pain, shock and sufferings. The claim under such head
would be Rs.1,50,000/-. So far as loss of amenities is
concerned, the injuries are such that the claimant could
be deprived of living natural life.
11. The photographs of claimant which are placed on
record at page no. 79 of the paper book are also relied
upon by the learned advocate for the claimant. In
nutshell, the submission canvassed by learned advocate
for the claimant is that the amount of compensation
which has been awarded is not just and proper.
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12. I have considered the submissions and perused the
record and proceedings. The questions involved in the
appeal are mainly with regard to the liability of
insurance company to indemnify the owner of the vehicle
in absence of coverage of risk, the assessment of income
of the claimant, the loss of earning capacity of claimant,
and compensation awarded under the head of pain, shock
and suffering is whether just and reasonable and non-
granting of loss of amenities by learned Tribunal
requires interference or not. It appears that the claimant
was 33 years of age and was doing a labour work on
the Truck which is owned by the opponent No.2. The
deposition of the claimant to the effect of his nature of
work has not been contradicted by the insurance
company in cross examination. In absence of any
contrary evidence, learned Tribunal believed that the
claimant is a labourer and was doing labour work on
the Truck. The policy which is placed on record, at page
rd
No.24 of the paper book reveals that the risk of 3
party is covered under the policy. However, no premium
to cover risk of employee and personal accident of the
passenger is covered.
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13. FIR at Exh.27 also states that claimant as well as
other persons were travelling in the loading area of the
Truck for the purpose of labour work. The statement of
claimant which is produced at page 107 of the paper
book is also on the same line that the claimant was
travelling in the Truck as a labourer for loading
fertilizer. The statement of a co-passenger which is
placed on record at page no. 101 of the paper book also
reveals that the claimant and all persons were travelling
in the Truck as a labourer for loading fertilizer. The
Truck was used for travelling fertilizer. When the
claimant being a labourer siting in the Truck, can't be
expected to have any goods with him, more particularly,
opponent No.2 who is the owner of the Truck has chosen
not to defend the application. The factual aspect can
only be answered by opponent No.2. In the cross
examination of the claimant, nothing fruitful could be
extracted by the insurance company regarding the nature
and status of job. When owner of the Truck remains
silent on the question of the nature of work, there is no
reason not to believe the version of claimant that he
was travelling in the Truck as a labourer. The
contention of insurance company that the risk of
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employee and risk of personal accident of passenger are
not covered has no force considering the factual aspect
that the claimant being a labourer falls within the
definition of third party and the insurance company is
liable to indemnify the owner for risk of the third party.
14. Considering the injuries sustained by the claimant
and the nature of work which he was doing before the
date of the accident, it is amply clear that because of
the permanent disabilities sustained to the claimant
there are almost nil chances that the applicant could
now resume to its original work. The labourer is
accepted to do labour work during the course of his
employment and when the victim who suffers injuries
such as injuries found in the present facts, it is almost
impossible for the claimant to carry on the work which
he was doing prior to the date of accident.
15. So far as the injuries, disabilities and difficulties
which are stated in examination-in-chief of claimant,
there is no effective cross-examination, except general
denials. Resultantly, considering the facts in the present
case, it is the case of 100% functional disability (100%
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loss of earning capacity).
16. The injuries and the period of hospitalisation are
such that the claimant is required to be compensated to
the tune of Rs.1,25,000/- under the head of pain, shock
and sufferings. So far as loss of amenities are concerned,
the claimant is entitled to Rs.1,00,000/- under such head.
17. The First Appeal of insurance company fails and
the Cross Objections of claimant are partly allowed
accordingly. The Judgment and Award is modified to the
following extent. Claimant is entitled to following amount
of compensation:-
Head Amount (Rs.)
Future loss of Income 12,65,040/-
Monthly Income - 5020 X 12 = 60,240/-
Future rise in Income - (40%)
(60,240 X 40% = 24,096/-)
Total 60,240 + 24,096 = 84,336/-
Disability (100%)
Multiplier (15)
Total 84,336 x 15 = 12,65,040/-
Actual loss of Income 1,20,480/-
Pain, Shock & Suffering 1,25,000/-
Special diet, Transportation and 1,00,000/-
Attendant charges
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Loss of Amenities 1,00,000/-
Medical expenses 4,73,393/-
Total Compensation 21,83,913/-
(-) Awarded Amount by Tribunal 13,48,393/-
Enhanced Compensation
8,35,520/-
(Rate of Interest @ 9% p.a.)
18. Therefore, total amount of compensation would come
to Rs.21,83,913/-, which is required to be awarded with
9% p.a. interest from date of claim petition till its
realisation, which would meet the ends of justice. It is
pertinent to note that learned Tribunal has already
awarded Rs.13,48,393/- to the claimant, therefore,
Rs.8,35,520/- (Rs.21,83,913 - Rs.13,48,393) is required to
be enhanced with interest @ 9% p.a.
19. For the reasons recorded hereinabove, the following
order is passed:
[A]. The First Appeal fails and the Cross
Objections are partly allowed accordingly in above
terms.
[B]. The Insurance Company is directed to deposit
the enhanced amount 8,35,520/- with 9% p.a.
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interest from the date of claim petition till its
realisation before the concerned Tribunal, within a
period of 6 weeks from the date of receipt of this
order.
[C]. The Tribunal shall disburse the entire
awarded amount lying in the FDR and / or with
the Tribunal, with accrued interest thereon if any,
to the claimant, by 'Account Payee Cheque' /
RTGS / NEFT', after proper verification and after
following due procedure.
[D]. While making the payment, the Tribunal
shall deduct the Courts fees, if not paid, in
accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to
the concerned Tribunal, forthwith.
(D. M. DESAI,J)
MAYA
