Gujarat High Court
Oriental Insruance Company Ltd vs Hasumatiben Mahendrabhai Makwana on 24 January, 2025
NEUTRAL CITATION
C/FA/1672/2015 ORDER DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1672 of 2015
With
R/CROSS OBJECTION NO. 109 of 2015
In R/FIRST APPEAL NO. 1672 of 2015
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ORIENTAL INSRUANCE COMPANY LTD
Versus
HASUMATIBEN MAHENDRABHAI MAKWANA & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
MR VISHAL MEHTA FOR MR MEHUL S SHAH(772) for the
Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 29.12.2014 passed by the Motor Accident
Claims Tribunal, Bhavnagar in Motor Accident Claim Petition
No.809 of 2007. The claimants have filed cross-objections in the
appeal.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
18.09.2007, when deceased was proceeding from Sihor to village
Sanosaara on his Bajaj Boxer motorcycle No.GJ-4-AA-9408 and
when he reached near the place of accident, driver of Tata Tempo
No.GJ-10-V-6685 came from opposite side in rash and negligent
manner and dashed with the motorcycle of the deceased and
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upon occurrence of the accident, deceased sustained fatal
injuries and later on died.
3. Heard learned advocate Ms.Dimple Thaker for the
appellant - Insurance Company and learned advocate Mr.Vishal
Mehta for the claimants who have filed cross-objections for
enhancement of the compensation.
4. Learned advocate Ms.Thaker for the appellant - Insurance
Company assailing the impugned judgment and award on the
ground that Tempo No.GJ-10-V-6685 has been implanted, as
some unidentified person has dashed with the motorcycle of
deceased. The FIR is filed against unknown person and in
panchnama presence of tempo is not noted. Therefore, she
submits that tempo is implanted with a view to get
compensation. She would submit that learned Tribunal has not
assessed the aspect properly and wrongly allowed the claim
petition against owner and insurer of Tata tempo. Upon above
submissions, she submits to allow the present appeal.
5. On the other hand, learned advocate Mr.Vishal Mehta for
the claimants while replying to the contentions of Ms.Thaker
fervently submits that chargesheet at Exhibit-66 is filed against
driver of Tata tempo which was not challenged by the driver,
owner or Insurance Company before learned Tribunal. He would
submit that while deciding claim petition under Sections 163A or
166 of Motor Vehicle Act, 1988, learned Tribunal is duty bound
to take holistic view and to see that whether on touchstone of
preponderance of probabilities, claimant establishes evidence,
involvement of vehicle and injury or death in road accident. In
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the present case, claimant has established involvement of Tata
tempo and therefore, he submits that appeal filed by Insurance
Company is required to be dismissed. He would further submit
that the cross-objections are filed only on the ground that
learned Tribunal has not granted compensation properly under
the head of consortium, loss of estate and funeral expenses and
claimants are seeking enhancement under these heads of
compensation.
6. 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 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
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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.
7. 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. Noticeably, the FIR does
not contain involvement of Tata tempo but the chargesheet filed
at Exhibit-66 categorically states involvement of Tata tempo in
road accident. Moreover, the owner of Tata tempo has filed
written statement at Exhibit-16 in claim petition and in reply
categorically admitted that accident took place between Bajaj
Boxer motorcycle and Tata tempo. He has alleged that the
accident took place due to sole negligence of the deceased. At
this juncture, let me refer to para 9 and 12 of the written
statement and as the same is in vernacular language Gujarati, it
is translated and reproduced as under :
"(9) The facts mentioned in para 10 of the application of
the applicant is not totally true and it is not accepted by
me. The fact is that this accident has taken place in the
evening on 18/09/2007 of near the farm of Hari
Golakiya between Iswariya and Sanosara villages on
Bhavnagar - Rajkot highway road is true. Such fact is
true that the deceased was riding Bajaj Boxer (motor
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cycle) and was going to Sanosara. But the deceased was
carefully riding his motor cycle at the left side in slow
speed and when he reached at the place of accident.
Then our driver Jayendrasinh Gohil drove our Tata 407
Tempo at full speed, with gross negligence, in a manner
that endangered human life, violated highway traffic
rules, then came on the wrong side, hit a motorcycle of
the deceased hard, seriously injured him, and caused
him a tragic and gruesome death on the spot. The fact
that the accident occurred in this manner is not true and
we do not accept it. The fact that this accident occurred
due to our driver's mistake, negligence, or failure to
perform his duties as a good driver is not true and we do
not accept it. It is true that the Songadh police have filed
a charge-sheet in the Shihore court against our driver
regarding this accident. The fact is true that, I am the
owner of the Tempo and the opponent no. 2 is our
Insurance Company, but the fact that we are jointly and
severally responsible to pay the amount of Accident
compensation is not true and it is not accepted by me.
**** **** ****
According to the true facts, our driver Jayendrasinh
Ranjitsinh was driving our TATA -407 - GJ-10-V-6685
towards Shihor, he driving slowly and carefully on its
left side, when the deceased drove his Bajaj Boxer
(motorcycle) at full speed, recklessly, and in a manner
that endangered human life, and collided with our
tempo, causing an accident. Although our driver tried to
take all the necessary precautions to prevent an
accident, but the accident occurred due to the own error,
negligence, and fault of the deceased (passerby). There
was no any mistake or negligence of our driver. The
Songadh Police have filed the charge-sheet in Sinhore
Court against our driver by doing one side investigation.
But we declare that the said Criminal Case is pending /
not-decided till date. Our driver Jayendrasinh was
having a legal and valid Driving License at the time of
accident and the Insurance of our Tempo was taken from
the opponent no. -2, which was continued at the time of
accident. If any compensation is to be paid to the
applicants in any circumstances then its legal
responsibility to pay the insurance lies with our
Insurance Company - i.e. the opponent no. -2. Hence, it is
requested to quash the application against me and to
pay the amount of expenses incurred by me."
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8. The categorical admission on the part of owner of the Tata
tempo, which has not been challenged by the Insurance
Company by leading any evidence of driver or its own officer,
proves the case of the claimants that Tata tempo is involved in
the road accident. As far as issue of negligence of deceased is
concerned, since there is no challenge made by Insurance
Company, no discussion has been made. In view of the above
contention, let me refer recent judgment of Hon'ble Supreme
Court in case of ICICI Lombard General Insurance Company
Limited vs. Rajani Sahoo and others - 2025 Live Law (SC) 9,
held that chargesheet shows involvement of the driver driving
vehicle rashly and negligently. Relevant para 7 and 8 reads as
under :
"7. As regards the reliability of charge sheet and other
documents collected by the police during the
investigation in motor accident cases, this Court in the
case of Mangla Ram v. Oriental Insurance Co. Ltd. and
Ors.1, held in paragraph No.27, thus:-
"27. Another reason which weighed with the High
Court to interfere in the first appeal filed by
Respondents 2 & 3, was absence of finding by the
Tribunal about the factum of negligence of the driver of
the subject jeep. Factually, this view is untenable. Our
understanding of the analysis done by the Tribunal is
to hold that Jeep No. RST 4701 was driven rashly and
negligently by Respondent 2 when it collided with the
motorcycle of the appellant leading to the accident.
This can be discerned from the evidence of witnesses
and the contents of the charge-sheet filed by the
police, naming Respondent 2. This Court in a recent
decision in Dulcina Fernandes [Dulcina Fernandes v.
Joaquim Xavier Cruz, (2013) 10 SCC 646, noted that
the key of negligence on the part of the driver of the
offending vehicle as set up by the claimants was
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required to be decided by the Tribunal on the
touchstone of preponderance of probability and
certainly not by standard of proof beyond reasonable
doubt.
Suffice it to observe that the exposition in the
judgments already adverted to by us, filing of charge-
sheet against Respondent 2 prima facie points
towards his complicity in driving the vehicle
negligently and rashly. Further, even when the
accused were to be acquitted in the criminal case, this
Court opined that the same may be of no effect on the
assessment of the liability required in respect of motor
accident cases by the Tribunal".
(Emphasis Supplied)
8. It is true that the Tribunal had looked into the oral and
documentary evidence including the FIR, final report and
such other documents prepared by the police in
connection with the accident in question. The Tribunal
had also taken note of the fact that based on the final
report, the driver of the offending truck was tried and
found guilty for rash and negligent driving. The High
Court took note of such aspects and found no illegality in
the procedure adopted by the Tribunal and consequently
dismissed the appeal. In the contextual situation it is
relevant to refer to a decision of this Court in Mathew
Alexander v. Mohammed Shafi & Anr.2, this Court held
thus:-
"12. A holistic view of the evidence has to be taken into
consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
claimants have to establish their case on the
touchstone of preponderance of probabilities. The
standard of proof beyond reasonable doubt cannot be
applied while considering the petition seeking
compensation on account of death or injury in a road
traffic accident. To the same effect is the observation
made by this Court in Dulcina Fernandes vs. Joaquim
Xavier Cruz, (2013) 10 SCC 646 which has referred to
the aforesaid judgment in Bimla Devi."
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9. In Mathew Alexander vs. Mohammed Shafi and another
- 2023 (13) SCC 510, the Hon'ble Supreme Court directed to
take holistic view of the evidence by the learned Tribunal and
further held that strict proof of accident caused by particular
vehicle in particular manner did not to be establish by the
claimant. The relevant para is as under :
"9. *** A holistic view of the evidence has to be taken into
consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
claimants have to establish their case on the touchstone
of preponderance of probabilities. The standard of proof
beyond reasonable doubt cannot be applied while
considering the petition seeking compensation on account
of death or injury in a road traffic accident. To the same
effect is the observation made by this Court in Dulcina
Fernandes vs. Joaquim Xavier Cruz, (2013) 10 SCC 646
which has referred to the aforesaid judgment in Bimla
Devi."
10. In the present case, claimant by sufficient evidence proved
that on ill-fated day while deceased was riding motorcycle, his
vehicle was hit by Tata tempo and the deceased died on the
spot. The driver of the tempo was statutorily liable to take
deceased to hospital deviated from his responsibility and fled
from the spot. Even the owner as stated hereinabove has
accepted involvement of the tempo in the road accident.
Accordingly, the contention raised by the Insurance Company
became boneless and they are, accordingly, rejected.
11. Learned Tribunal assessed Rs.10,000/- under the head of
consortium and Rs.25,000/- under the head of funeral
expenses. Explaining the term consortium, the Hon'ble Supreme
Court in case of Magma General Insurance Company Limited
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vs. Nanu Ram alias Chuhru Ram - 2018 (18) SCC 130, held
that compensation under the head of consortium may be granted
either to the spouse, parents or children as the case may be
individually. In the case of hand, claimant No.1 is widow,
claimant No.2 is adult daughter and claimant Nos.3 and 4 are
parents. Therefore, towards loss of consortium, there are four
dependents and therefore, Rs.48,400/- to each dependent
should be awarded as per the decision of the Hon'ble Apex Court
in the case of United India Insurance Co. Ltd., versus
Satinder Kaur @ Satwinder Kaur - (2021) 11 SCC 780.
Further, considering the ratio laid down by the Hon'ble Apex
Court in the case of National Insurance Company Ltd. Vs.
Pranay Shethi - (2017) 16 SCC 680, the general and non-
pecuniary damages, Rs.18,150/- each towards loss of estate and
funeral expenses should be awarded. The interest rat of 9% per
annum awarded by learned Tribunal is maintained.
11.1 Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 15,28,254/-
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Consortium (Rs.48,400/- x 4 dependents) 1,93,600/-
Total 17,58,154/-
Less: Amount which is already awarded 15,73,254/-
Additional amount which is awarded 1,84,900/-
12. Therefore, I hold that the claimants are entitled to get the
enhanced compensation of Rs.1,84,900/- with 9% p.a. interest
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from the date of filing the claim petition till its realization from
the opponents jointly and severally, which would meet the ends
of justice. Rest of the direction(s) of the Tribunal remain same.
13. For the reasons recorded above, the following order is
passed.
13.1 The present First Appeal No.1672 of 2015 filed by the
Oriental Insurance Company Limited is dismissed. Cross
objection No.109 of 2015 filed by the claimants are allowed in
aforesaid terms.
13.2 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of six weeks from the date of receipt of this order.
13.3 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 claimantss, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
13.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
13.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
