Gujarat High Court
Shriram General Insurance Co Ltd vs Patel Hiteshkumar Amrutlal on 23 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4245 of 2019
With
R/FIRST APPEAL NO. 3762 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No
==========================================================
SHRIRAM GENERAL INSURANCE CO LTD
Versus
PATEL HITESHKUMAR AMRUTLAL & ORS.
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The captioned First Appeals are preferred by the
respective appellants against the impugned common
judgment and award dated 21.04.2018 passed by the
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
learned Motor Accident Claims Tribunal (Main), Mahesana
in Motor Accident Claim Petition Nos.627, 628 and 629 of
2010 considering MACP No.627 of 2010 as main whereby
the learned tribunal has partly allowed the claim petitions.
2. Since the common issues are involved in the
captioned appeals and upon consent of learned advocates
appearing for the respective parties, the matters are taken
up for final hearing and decided by this common
judgment.
3. Heard learned advocate Mr.Rathin Raval and
learned advocate Mr.J.M.Barot for the respective parties in
the captioned First Appeals.
4. The brief facts of the case are as under:
4.1 On 13/06/2010, at about 3:15 PM, deceased
Kalpeshkumar Ramdas Patel, injured Hiteshkumar Amrutlal
Patel and deceased Anantkumar Babulal Patel (worker)
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
were going to Balasinor in the Optra Magnum car bearing
registration No.GJ-2-AP-2024 being driven by Hiteshkumar
Amrutlal Patel for their business purpose and while
returning from Balasinor. When the car reached at the
place of accident i.e. Balasinor-Kathlal road, the opponent
No.1-driver of truck bearing registration No.GJ-7-X-4950
came from opposite direction with full speed and in a rash
and negligent manner endangering life and safety of others
dashed with the car. Resultantly, all three of them
sustained serious injuries wherein deceased Kalpeshkumar
Ramdas Patel and deceased Anantkumar Babulal Patel
(worker) succumbed to their injuries on the spot, whereas
Hiteshkumar Amrutlal Patel sustained injuries.
4.2 The respondent Nos.1 to 5-original claimants
being legal heirs of deceased Kalpeshkumar Ramdas Patel
filed Motor Accident Claim Petition No.627 of 2010 for a
compensation of Rs.1,00,00,000/-and respondent No.8-
original claimant i.e. Hiteshkumar Amrutlal Patel filed
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
Motor Accident Claim Petition No.629 of 2010 for
compensation of Rs.19,00,000/- before the learned Motor
Accident Claim Tribunal (Main), Mahesana. The legal heirs
of deceased Anantkumar Babulal Patel (worker) also filed
Motor Accident Claim Petition No.628 of 2010 for
compensation of Rs.20,00,000/- before the learned Motor
Accident Claim Tribunal (Main), Mahesana. The learned
Tribunal consolidated all three claim petitions and decided
by common Judgment and award considering Motor
Accident Claim Petition No.627 of 2010 as main claim
petition.
4.3 Notices were duly served to all opponents.
Opponent Nos. 1 and 2-driver and owner of truck did not
appear before the Tribunal. Opponent No.3-Insurance
Company of truck appeared and filed Written Statement at
Exh-142 and denied allegations. Opponent No.4-
Hiteshkumar Amrutlal Patel driver of car appeared and
filed Written Statement at Exh-14 and denied his
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
negligence in causing accident. Opponent No.5-Insurance
Company of car appeared but did not file reply.
4.4 Thereafter, issues were framed at Exh-18 by the
learned Tribunal. In M.A.C.P.No.627/2010 - Patel Jalpaben
Kalpeshkumar has filed an affidavit in the form of
deposition, for the claim of compensation vide Exh.43. In
M.A.C.P.No.628/2010 - Patel Babulal Ramdas has filed an
affidavit in the form of deposition, for the claim of
compensation vide Exh.47 whereas in M.A.C.P.No.629/2010
- Patel Hiteshkumar Amrutlal has filed an affidavit in the
form of deposition, for the claim of compensation vide
Exh.44.
4.5 In MACP No.627 of 2010, FIR, spot panchnama,
Post mortem Note and Income tax returns (2007-08, 2008-
09, 2009-10 and 2010-11) has been produced at Exh-49,
50, 52 and 107, 108, 109 and 110 respectively. In MACP
No.628 of 2010, Post mortem Note has been produced at
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
Exh-57. In MACP No.629 of 2010, the injured has
produced Medical treatment Certificate at Exh-65.
4.6 After considering the evidence and material
placed on record, the learned Tribunal vide its judgment
dated 21/04/2018 and award dated 23/04/2018, partly
allowed all claim petitions and found negligence of truck
driver to the extent of 80% and of car driver to the extent
of 20%.
4.7 The learned tribunal in MACP No.627 of 2010
awarded a total compensation of Rs.45,35,072/-, and held
Opponents Nos. 1 to 3 jointly and severally liable, while
exonerated Opponents Nos. 4 and 5 and therefore awarded
Rs.36,28,058 (80% amount of Rs.45,35,072/-).
4.8 In MACP No.628 of 2010, the learned Tribunal
awarded a compensation of Rs.12,79,600/- and held
Opponents Nos. 1 to 6 jointly and severally liable.
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
4.9 In MACP No.629 of 2010, the learned Tribunal
awarded a total compensation of Rs.11,76,480/-, and
deducted 20% contributory negligence and awarded
Rs.9,41,184/- (80% amount of Rs.11,76,480) and held
Opponents Nos. 1 to 3 jointly and severally liable. Being
aggrieved, the appellant-insurance company / appellants-
original claimants with their respective First Appeals Nos.
before this Court. No appeal is preferred against Judgment
and award passed by learned Tribunal in MACP No.628 of
2010.
5. Learned advocate for the appellant/s- original
claimant/s in the respective matter submitted that granting
of compensation by the learned Tribunal is on a lower
side. The appellant was driving the car at a moderate
speed and without any specific and clear evidence
attributing negligence on the part of the appellant, learned
Tribunal has erred in holding appellant negligent to the
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
extent of 20% in the occurrence of accident. The finding
on the question of negligence is erroneous as the driver of
truck bearing Registration No.GJ-07-X-4590 has not
deposed on the question of negligence. It is submitted that
the driver of truck came from opposite direction with an
excessive speed and dashed with the car. A chargesheet
against the driver of truck was also filed which further
strengthen the case of the claimant that accident has
occurred due to sole negligence on the part of truck
driver.
5.1 It is further submitted that the claimant was
aged about 32 years at the time of accident and was
possessing degree of Diploma Mechanical Engineering.
Appellant was a Manager in Starline Cars and was earning
Rs.10,000/- p.m. by way of a salary. While considering the
income of the appellant, learned Tribunal has not
considered prospective income of the appellant as held in
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
the case National Insurance Company Limited Vs. Pranay
Sethi & Ors. reported in (2017)16 SCC 680. Looking to the
injury sustained to the appellant which is in the nature of
multiple fractures on the body, for disablement examined
by Dr.Kamlesh Gurjar at Ex.89, who has considered the
disability at 38.3% body as whole. A plastic surgeon
Dr.Kiritbhai Patel is also examined by claimant who has
considered disfigurement at 18%. While considering the
disability of appellant, learned Tribunal has considered
disability as body of whole as 28.15%. After deducting
20% negligence on the part of driver of the car, learned
Tribunal has awarded compensation of Rs.9,41,184/- (80%
of Rs.11,76,480/-).
6. Per contra, learned advocate for respondent No.3
- Insurance Company in the respective matter submitted
that the appellant has received an amount of Rs.2,58,014/-
from medical insurance from Employees State Insurance
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
Corporation. Ex.137 is the evidence which confirms the
payment under Employees State Insurance Corporation. It
is submitted that the said amount is liable to be deducted
from awarded compensation for the reason that the
claimant is not entitled to double payment for the same
cause which has arisen out of the same accident. The
further contention raised by the learned advocate for the
respondent is that the insured of the vehicle was not
holding a licence on the date of accident. The RTO Officer
who was examined at Ex.146 has deposed that the licence
at Ex.151 did not have the endorsement for the renewal
for the period of 04.03.2008 to 03.03.2011. It is therefore
submitted that when the driver of the vehicle was not
holding effective driving licence, the insurance company
cannot be saddled with the liability of making payment of
compensation.
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
7. We have considered the submissions canvassed
by learned advocates for the respective parties and also
perused record and proceedings. On the date of accident,
claimant Hiteshkumar Amurt Patel alongwith two other
persons namely Kalpeshkumar Ramdas Patel and
Anantkumar Babulal Patel traveling in car bearing No.GJ-
2-AP-2024 and car reached near the place of accident, a
truck coming from opposite direction dashed with the car.
Resultantly, claimant-Hiteshkumar Amrutlal Patel sustained
serious injuries and other two passengers namely
Kalpeshkumar Ramdas Patel and Anantkumar Babulal
Patel died because of accidental injuries.
7.1 A question regarding holding claimant, who
happens to be driver of the car found negligent to the
extent of 20% is under challenge by the claimant. Learned
Tribunal has considered oral as well as documentary
evidence. The Panchnama which has been considered by
the learned Tribunal indicates that both the vehicles were
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
found negligent and responsible in the occurrence of
accident. When sufficient material is available for
determining the question of negligence, and in absence of
concrete evidence not to hold driver of the car negligent,
none examining the driver of truck is of no much
importance. Claimant has not led any evidence to
substantiate his contention of driving the car at a
moderate speed at the time of accident and what step he
take to avoid the accident. In absence of any convincing
material, we are not inclined to interfere in the finding of
negligence and therefore we confirm the negligence of the
truck driver at 80% and negligence of the car driver at
20%.
7.2 Ex.148 which is a copy of licence issued by
RTO. On perusal of same, it transpires that during the
period of accident, the car driver was having a valid
licence. It has been observed by the learned Tribunal that
Ex.148 which is original record of RTO, indicates that
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
there is an endorsement regarding renewal for the period
from 04.03.2008 to 03.03.2011. Thus, merely because in
the computerize record which is maintained by RTO by
one reason or other, does not mention about the renewal
of licence cannot lead to a conclusion that driver was
holding an effective licence. When the original record
maintained by RTO is produced by the witness from RTO
indicates that the licence was renewed, the contention of
the learned advocate for the insurance company has rightly
been rejected by the learned Tribunal.
7.3 While considering the income, learned Tribunal
has not taken into consideration the amount Rs.2,58,014/-
received by the claimant as part of medical expenses under
Employees State Insurance Corporation. The provisions of
Employees State Insurance Corporation is benevolent
legislation. It provides for certain benefits to employee in
case of sickness, maternity and employment injuries and to
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
make provisions for certain other matters in relation
thereto. The insurance fund is mainly derived contribution
from employer and workmen. The contributions payable in
respect of each workman based on his average wages and
in case of sickness or employment injuries, the benefits
under the Act are made available to the employee.
Whereas Motor Vehicles Act is a social welfare legislation
under which compensation is provided by way of award to
the people who sustained injuries or whose kit and kins
are killed are necessarily to be provided with a relief in
short time. The compensation which is paid under Motor
Vehicles Act has to be considered liberally. Both the
enactments function on different footings and merely
because the claimant has received some amount as part of
medical expenses under Employees State Insurance
Corporation, it will not debar the claimant from claiming
compensation under the head of medical expenses under
Motor Vehicles Act. We are therefore not inclined to
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
accept the contention of learned advocate for the Insurance
Company that it would be double payment to the claimant
if an amount of Rs.2,58,014/- is not deducted from the
award.
8. Looking to the nature of injuries sustained to
the claimant, the disability which has been assessed by the
learned Tribunal as 28.15% is modified and made a round
figure of 30% in the interest of justice.
9. In view of this, the judgment and award is
modified to the following extent.
Head Compensation
1 Monthly Income Rs. 10,000/-
Prospective income 40% Rs. 4,000/-
(Rs.10,000 X 40/100)
Total monthly income Rs. 14,000/-
(Rs.10,000/- + Rs.4,000/-)
2 Disability (30%) Rs. 42,00/-
Rs.14,000 x 30/100)
3 Future loss of income Rs.8,06,400/-
(Rs.4200x16x12)
4 Pain, shock and suffering Rs. 50,000/-
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
5 Medical expenses Rs.4,51,000/-
6 Disfigurement of face Rs. 50,000/-
7 Attendance Charges Rs. 15,000/-
8 Special and nutritious diet Rs. 15,000/-
9 Transportation expenses Rs. 15,000/-
10 Actual loss of income Rs. 40,000/-
Grand Total Rs.14,42,400/-
(-awarded amount by the Rs.11,76,480/-
Tribunal)
Enhanced amount Rs.2,65,920/-
Interest @ 9%
10. For the reasons recorded above, following order
is passed.
10.1 The appellant-original claimant/s are entitled to
enhanced amount of compensation of Rs.2,65,920/- @ 9%
interest per annum from the date of claim petition till
realization from Insurance Company.
10.2 The Insurance Company is directed to deposit
the enhanced amount of compensation with interest as
above within a period of Four Weeks from the date of
NEUTRAL CITATION
C/FA/4245/2019 JUDGMENT DATED: 23/01/2025
undefined
receipt of this order.
10.3 The present First Appeals are partly allowed.
The impugned common judgment and award dated
21.04.2018 passed by the learned Motor Accident Claims
Tribunal (Main), Mahesana, is modified to the aforesaid
extent. Record and proceedings be sent back to the
concerned Court/Tribunal.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
