Gujarat High Court
New India Assurance Co. Ltd vs Parmar Janakben Deepakbhai on 12 February, 2025
NEUTRAL CITATION
C/FA/533/2016 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 533 of 2016
With
R/CROSS OBJECTION NO. 129 of 2016
In
R/FIRST APPEAL NO. 533 of 2016
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NEW INDIA ASSURANCE CO. LTD.
Versus
PARMAR JANAKBEN DEEPAKBHAI & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant being aggrieved
and dissatisfied with the judgment and award dated 21.11.2015
passed by the Motor Accident Claims Tribunal, Surendranagar
in Motor Accident Claim Petition No.57 of 2009 for reduction of
the compensation.
2. The present cross objectionis preferred by the appellants -
original claimants being aggrieved and dissatisfied with the
judgment and award dated 21.11.2015 passed by the Motor
Accident Claims Tribunal, Surendranagar in Motor Accident
Claim Petition No.57 of 2009 for enhancement of the
compensation.
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3. Brief facts of the case are that on 07-10-2008 at about 2-
00 a.m., the deceased, Deepakbhai was driving the Maruti car
No.GJ-5-A-6574 belonging to the Opponent no.1 and 2 and
insured by the opponent No.3 and was going from Ahmedabad to
Wadhwan. At relevant time, as he reached near village of
Ramnagar at Ahmedabad Rajkot highway, when he applied
break, a steering was locked and the car turned turtled. Thus,
the deceased sustained severe injuries and died at spot. The
accident has occurred within the territorial jurisdiction of
Bawala Police Station and therefore, the complaint has been filed
before the said Police Station.
3.1 The learned Tribunal vide its judgment and award granted
compensation to the tune of Rs.2,98,100/- with 9% interest from
the date of filing the claim petition till realization. The insurance
company has filed present First Appeal for reduction of the
compensation, whereas the claimants have filed the cross
objection for enhancement of compensation.
4. Heard learned advocate Mr. Palak Thakkar for the
appellant - insurance company and learned advocate Ms. Amrita
Ajmera for the appellants - original claimants.
5. Learned advocate Mr. Palak Thakkar has challenged the
impugned judgment and award on the ground that the deceased
has stepped into the shoes of the owner, as he has borrowed
vehicle from the owner and ridden it at the time of road accident
and therefore, the deceased was not third party and thus, the
claim petition is not maintainable. Upon such submission, he
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prays to allow the First Appeal.
6. On the other hand, learned advocate Ms. Ajmera for the
claimants challenged the judgment and award on the ground
that the learned Tribunal has granted compensation on the
lower side. She would further submit that some strange method
has been adopted by the learned Tribunal to count the
compensation. Thus, she submits to allow the cross objection.
7. Having heard learned advocates for both the sides, what
could be noticed that the issue raised in the present matters are
squarely covered by the judgment of the Coordinate Bench of
this Court in case of United India Insurance Company Limited
Versus Kasubhai Desabhai Vala Legal Heirs Of Decd, 2022 (0)
JX(Guj) 293. Para 5 thereof reads as under:-
"5. I have considered various submissions made by the
parties. I have also perused the record and proceedings
of the Tribunal. It is true that the deceased was himself
driving the vehicle and due to some mechanical defect,
deceased lost the control on the vehicle resultantly, he
has fallen down and received the injuries and ultimately
died. Therefore, the present claim petition is filed under
Section 163 A of the Motor Vehicles Act. The provisions
of Section 163 A of the Motor Vehicles act, 1988 reads
as under :-
"(1) Notwithstanding anything contained in this
Act or in any other law for the time being in force
or instrument having the force of law, the owner of
the motor vehicle or the authorised insurer shall
be liable to pay in the case of death or permanent
disablement due to accident arising out of the use
of motor vehicle, compensation, as indicated in the
Second Schedule, to the legal heirs or the victim,
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as the case may be. Explanation.-For the purposes
of this sub-section, "permanent disability" shall
have the same meaning and extent as in the
Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-
section (1), the claimant shall not be required to
plead or establish that the death or permanent
disablement in respect of which the claim has
been made was due to any wrongful act or neglect
or default of the owner of the vehicle or vehicles
concerned or of any other person.
(3) The Central Government may, keeping in view
the cost of living by notification in the Official
Gazette, from time to time amend the Second
Schedule"
Therefore in my opinion, the Tribunal has not
committed any error by keeping in mind the
factual aspect of the matter and also keeping in
mind the judgment of Fahim Ahmad (supra) as
well as the judgment of Chandrakanta Tiwari
(supra) and the judgement of this Court in the
First Appeal No.1129 of 2013 whereby the Court
has found that the Insurance Company should be
held liable in the facts and circumstances of the
case and where the premium is paid to the driver
as well as owner of the vehicle. Mr. Hemal Shah
has also relied on the judgment of this Court in
the First Appeal No.14 of 2010 as well as in the
First Appeal No.2932 of 2007 which are also
helpful to the case of present respondents. The
judgment of Ramkhiladi (supra) could not be
applicable squarely in the facts of the present case
as in the present case, the amount of the premium
for the risk of the driver as well as the owner is
paid and looking to the various judgments of the
Hon'ble Apex Court on the aspects like matter
under Section 163-A, the negligence is not
required to be proved and when the Insurance
Company has charged the premium for the risk of
the driver and the owner of the vehicle, in my
opinion the Tribunal has not committed any error
in holding the present appellant - Insurance
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Company liable to pay the amount of
compensation. Accordingly, I found that there is
no merit in the submission made by the advocate
for the appellant about the limited liability to the
extent of personal accident in the present case.
Therefore, I found that in view of the above
discussion, the appeal of the Insurance Company
is meritless. The Tribunal has given cogent and
convincing evidence, therefore, there is no reason
to interfere in the finding of the Tribunal."
8. Since, the issue is no more res integra in view of the
findings of the aforestated judgment of the Coordinate Bench of
this Court, the contention raised by the insurance company
failed to sustain.
9. Apt to note that the Motor Vehicle Act, 1988 is a beneficial
piece of Legislation. The concept of just and fair compensation is
integral and seminal to the MV Act. The compensation to be
awarded under the principle of just and fair compensation to the
injured of the road accident or the legal representative/s of the
deceased person is based on the principle of fairness,
reasonableness and equability. Anguish of the heart or for mental
turbulence being consequential result of the road accident cannot
be actually compensated, but the quint essentiality lies in
adopting holistic and pragmatic view to the computation of the
compensation for the loss sustained, which is to be in the realm of
realistic approximation. Although exact or perfect arithmetical
calculation of compensation for reparation of the loss arrived from
the road accident is almost impossible. The Tribunal is bestowed
with duty to make an endevour to award just compensation
regardless of the amount claimed by the claimants. The
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determination of the quantum of compensation therefore, must be
liberal and not niggardly since the law values life and limb in a
free country in generous scale. Needless to state that money may
be awarded, so that something tangible may be procured to reach
something else of the like nature, which has been destroyed or
lost, but money cannot renew physical frame that has been
battered and shattered being a result of the road accident. Yet
Tribunal to endavour to bring back victim to stage of pre-road
accident as far as possible Thus, the award must be reasonable
and cannot be assessed with moderation though it cannot at the
same time be pity and what could be granted must be just, fair
and equitable compensation.
10. So far as cross objection is concerned, 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 learned Tribunal.
From the record, it transpires that it is a fit case to grant
enhanced compensation under the head of global compensation of
Rs.3,50,000/- in total.
11. For the foregoing reasons, following order is passed.
11.1 The First Appeal filed by the insurance company stands
dismissed.
11.2 The cross objection is party allowed.
11.3 The insurance company is directed to deposit the enhanced
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amount of Rs.51,900/- with 9% p.a. interest from the date of
claim petition till its realization before the concerned Tribunal,
within a period of six weeks from the date of receipt of this order.
11.4 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 claimants, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
11.5 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
11.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
