Gujarat High Court
National Insurance Company Ltd vs Deputy Executive Engineer on 24 January, 2025
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C/FA/2160/2013 JUDGMENT DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2160 of 2013
With
R/FIRST APPEAL NO. 2170 of 2013
With
R/CROSS OBJECTION NO. 20 of 2014
In
R/FIRST APPEAL NO. 2160 of 2013
With
R/CROSS OBJECTION NO. 21 of 2014
In
R/FIRST APPEAL NO. 2170 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY LTD.
Versus
DEPUTY EXECUTIVE ENGINEER & ANR.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PARESH M DARJI(3700) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/01/2025
ORAL JUDGMENT
1. The First Appeals 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
30.03.2013 passed by the Motor Accident Claims Tribunal,
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Ahmedabad in Motor Accident Claim Petition No.473 of 2010,
and MACP No.306 of 2012.
2. In both the appeals, Cross Objections are filed by the
claimants for enhancement of compensation.
3. The appeals of Insurance Company is filed on the ground
of fastening full negligence on driver of trailer and exonerating
driver of maruti van from calculating negligence. Cross
Objections are filed by original claimants for enhancement in the
amount of compensation.
4. Claim petition No.473 of 2010 has been filed by Hajibhai
Patel. He was occupant of Maruti van and his leg was amputated
in the road accident. Claim Petition No.306 of 2012 has been
filed by legal heirs of Rasidbhai, who died while driving maruti
van. Both the claim petitions arise out of selfsame accident.
5. Facts of the case are as under :-
5.1. On 13.03.2010, deceased Rasidbhai along with his friend
Hajibhai were going in Maruti Van No.GJ.1820 to deliver electric
motor at Virochannnagar. While returning, on Sanand -
Viramgam Highway, when they reached near the place of
accident, at that time, one Trailer No.GRQ-5669 came with full
speed and rashly and collided with Maruti Van coming to wrong
side. Due to this accident, Rasidbhai sustained injuries and died
on the spot, whereas, Hajibhai sustained injuries. Therefore,
claim petitions are filed.
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6. I have heard learned advocate Mr.Vibhuti Nanavati for the
Insurance Company and learned advocate Mr.P.M.Darji for the
claimants.
7. Taking this Court through facts of the case, learned
advocate Mr.Nanavati would submit that accident took place in
such a way that Maruti van while overtaking truck, dashed with
on coming 26 wheeler vehicle having laden weight of 22 tons. It
is to be presume that it was running slow but the learned
Tribunal without discussing this issue relied on filing of charge-
sheet against driver of trailer and held him fully negligent in
causing road accident. It is submitted that trailer was going on
correct side on one way road and dashed with maruti van which
was on wrong side and therefore, looking to the scene of
accident, driver of Maruti van should also be held negligent to
some extent in causing road accident. It is submitted that it
would be issue of composite negligent so far as injured victim -
Hajibhai is concerned and would be case of contributory
negligence, where claim petition is preferred by legal heirs of
deceased Rashidbhai.
7.1. Mainly on above submissions, it is submitted to assess
contributory negligence of deceased being driver of Maruti van
and reduce compensation to that extent.
8. On the other hand, learned advocate Mr.Darji for the
claimants submitted that FIR and charge sheet of the accident
have been filed against driver of trailer. He further submitted
that driver admitted such aspect in his cross examination,
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moreover, RTO has suspended his driving license. This is also
coming out from cross examination. It is submitted that this two
aspects are sufficient to draw adverse inference against driver of
trailer, that he was fully negligent in causing road accident.
Learned advocate Mr.Darji referred to panchanama on record
and submitted that it does not disclose which vehicle was on
wrong side, even in deposition of driver of trailer, it is not clear
on which side trailer or maruti van was plying. It is submitted
that admittedly road was operating in one way as on other side
of road construction was going on. Therefore, it is submitted
that learned Tribunal has not committed any error in attributing
full negligence to the trailer driver in causing road accident. It is
submitted to dismiss the appeals filed by Insurance Company.
8.1. So far as Cross Objection filed by the claimant of MACP
No.473 of 2010 is concerned, learned advocate Mr.Darji would
submit that learned Tribunal has not granted compensation
under loss of future prospects to the injured victim and
therefore, claimant is seeking enhancement in compensation by
10% under head of future prospects as claimant was 50 years
old at the relevant time. Secondly, claimant is seeking
enhancement of compensation under head of pain, shock and
suffering as foot of the claimant was gashed (cut off). It is
submitted that though learned Tribunal has prepared
compensation under special diet and transportation, no
compensation has been granted under the said head. He
therefore, seeks compensation under said head.
8.2. So far as Cross Objection filed by the claimant of MACP
No.306 of 2012 is concerned, learned advocate Mr.Darji would
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submit that learned Tribunal has not properly considered
income of the deceased. It is submitted that learned Tribunal in
absence of evidence, ought to have adopted rate of minimum
wages as income base for deciding dependency loss and future
prospects. It is submitted that learned Tribunal has considered
Rs.3000/- per month as income of the deceased, whereas, rate of
minimum wages was Rs.3880/- per month as per notification
issued at the relevant time. It is submitted that loss of
consortium is also not properly appreciated so also
compensation under the head of loss of estate and funeral
expenses and therefore, in view of judgment of Hon'ble Apex
Court in the case of National Insurance Company Ltd. v/s.
Pranay Sethi [2017 (16) SCC 680], compensation may be
enhanced.
8.3. Upon above submissions, it is submitted to allow Cross
Objections.
9. I have heard learned advocates for respective parties and
given anxious consideration to rival submissions made by both
the parties. Evidence has been re-looked into and re-appreciated.
Learned Tribunal while assessing issue of negligence mainly
referred to proposition that though driver of trailer entered into
witness box, he is to be treated as interested witness and to save
his skin, he entered into witness box. Hence, his deposition
cannot be fully believed in absence of corroboration of
independent evidence. Learned Tribunal heavily relied on
panchanama drawn post accident. Before I appreciate
panchamana produced on record at Exh.31, let me observe that
in cross examination, driver of trailer has accepted that FIR and
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charge-sheet is filed against him and later on RTO has
suspended his license for six months for such gruesome road
accident. Since panchanama is one of the important evidence to
draw issue of negligence, learned Tribunal referred to it, where it
is stated that truck was coming from opposite side and dashed
Maruti van and maruti van was also damaged due to road
accident. Investigating Officer though has stated lying of vehicle
on particular side, but on perusing panchnama, it could not be
visualize that which vehicle was on wrong side and which vehicle
was on correct side. This becomes more important when
argument is canvassed by both the sides that half of the road
was operating and other side of the road was not operating as
construction was going on. According to this Court, learned
Tribunal referred to panchnama in background of motor vehicle
act, being beneficial piece of legislation and rightly believed on
the surrounding circumstances that driver of trailer was fully
negligent. I see no reason to interfere with said finding.
10. Apt to note that learned MAC Tribunal generally found
difficulty to assess issue of negligence, in case where killer road
accident has taken away life or limb of the victim and where
more than one vehicle is involved in the road accident. Issue of
negligence is always touched therein and learned Tribunal is
required to decide the issue either being composite or
contributory negligence. Difficulty arise in deciding the issue of
negligence, more particularly, when no eye witness to the road
accident are available. In such cases, MAC Tribunal has to rely
on panchnama of spot or panchnama of place, where accident
took place. Generally, learned Tribunal is drawing decision from
the position of vehicle stated in panchnama but the difficulty
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arise that Court is not aware about topographical situation of
spot of accident. Drawing of sketch in panchamana in accident
cases is crucial for accurately depicting scene and it could be
visualized by learned Tribunal while assessing composite or
contributory negligence. Rough sketch can clearly document
accident site including position of vehicle, skid marks, debris
and other relevant material. Thus rough sketch has to be drawn
with the panchanama of spot. It may also include photographs
for cross reference to facilitate sketch being incorporated in
panchnama, it would be more helpful. In the State of Gujarat, it
is witnessed that in accident cases, which are registered under
section 279 or 304A of IPC or under both provisions and now
under corresponding provision in BNSS, 2023, Investigating
Officer are not drawing rough sketch, annotations and labels as
observed herein above in panchnama of place and it leaves
learned Tribunal and Criminal Courts in dilemma in deciding
issue of negligence. Therefore, it is right time to observe that
some modalities and guidelines are to be framed by State
Government or its Officer i.e. DGP to draw rough sketch in the
panchnama of place or spot, which may include annotations,
labels and other things as observed herein-above. It may help
Court in deciding the issue of negligence. It is expected from the
State Government or its Officer i.e. DGP to think over it and
issue necessary directions to the concerned to frame necessary
modalities or guidelines to incorporate rough sketch in
panchnama of place of accident including taking photographs,
annotations, labels and landmark etc., so that position of vehicle
can be identified in absence of oral evidence or eye witness.
10.1. In view of above, copy of this order deserves to be
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forwarded to learned PP Mr.Dave, High Court of Gujarat for
onward transmission to the State Government and DGP for
necessary compliance.
11. Coming back to the issue of deciding quantum. So far as
MACP No.473 of 2010 is concerned, on perusal of impugned
judgment passed by learned Tribunal, I find that learned
Tribunal has not granted compensation for loss of future
prospects to injured victim who is 50 years old, he is entitled to
get 10% for loss of future prospects and accordingly, it is
granted. For compensation under pain, shock and suffering,
learned Tribunal has granted Rs.50,000/-, I enhance to
Rs.1,00,000/-. No compensation is granted under head of
special diet, transportation expenses, looking to the fact
situation of case, where person lost his foot, I grant Rs.25,000/-.
12. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 3,43,200/-
Rs.4000/- per month + 10% = Rs.4400/- and
considering 50% disability, the amount
would be Rs.2200/- x 12 x 13, the total
amount would be Rs.3,43,200
Actual loss of income 16,000/-
Pain, shock and suffering 1,00,000/-
Medical expenses 1,50,000/-
Special diet and transportation expenses 25,000/-
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Total... 6,34,000/-
Less : Amount which is already awarded 5,28,000/-
Additional amount which is awarded 1,06,000/-
13. So far as MACP No.306 of 2012 is concerned, it appears
that learned Tribunal has assessed compensation on lower side.
It is settled principle of law that in absence of evidence, learned
Tribunal is required to take rate of minimum wages as yardstick
to calculate loss of dependency and loss of future prospects.
Accident took place on 13.03.2010. Rate of minimum wages was
Rs.3880/- at the relevant time. Learned Tribunal instead of
taking rate of minimum wages of deceased, taken up Rs.3000/-
which is clear error. Therefore, Rs.3880/- is considered as
income of the deceased. Deceased was 46 years old. He was
driver of school vardi van and taking this aspect having no
permanent source of income and being self employed, in view of
judgment of Hon'ble Apex Court in the case of Pranay Sethi
(supra), 25% towards future prospects is granted. Deceased is
survived by four persons and therefore, 1/4th is deducted
towards personal expenses. Multiplier of 13 is available and
granted. Loss of estate and loss of funeral expenses at
Rs.18,150/- each is granted. There are four claimants, each
claimant is entitled for loss of consortium at Rs.48,400/- in view
of judgment of Pranay Sethi (supra), later on explained in the
case of Magma General Insurance Company Limited v. Nanu
Ram @ Chuhru Ram & Ors. [2018 (18) SCC 130] and reiterated
in the case of United India Insurance Co. Ltd., versus Satinder
Kaur @ Satwinder Kaur reported in [(2021) 11 SCC 780].
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14. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 5,67,450/-
Rs.3880/- per month + 25% prospective
income = Rs.4850/- x 12 = Rs.58,200/- and
deducting 1/4 towards personal expenses,
the amount would be Rs.43,650/- per year
and applying 13 multiplier, total amount
would be Rs.5,67,450/-
Loss of estate 18,150/-
Loss of consortium (Rs.48,400/- x 4) 1,93,600/-
Funeral expenses 18,150/-
Total... 7,97,350/-
Less : Amount which is already awarded 3,76,000/-
Additional amount which is awarded 4,21,350/-
15. Therefore, I hold that the claimants of MACP No.473 of
2010 are entitled to get the enhanced compensation of
Rs.1,06,000/- and claimants of MACP No.306 of 2012 are
entitled to get enhanced compensation of Rs.4,21,350/- with
7.5% p.a. interest from the date of filing the claim petitions till
its realisation, which would meet the ends of justice. Rest of the
direction(s) of the Tribunal remain same.
16. For the reasons recorded above, the following order is
passed.
17. The present appeals filed by Insurance Company are
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dismissed. Cross objections filed by claimants are partly allowed
in aforesaid terms.
18. The Insurance Company is directed to deposit, the
enhanced amount of compensation with 7.5% p.a. interest from
the date of claim petitions till its realization before the concerned
Tribunal, within a period of six weeks from the date of receipt of
this order.
19. 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 /
NEFT / RTGS, after proper verification and after following due
procedure.
20. While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
20.1. Registrar General to take necessary steps to comply with
direction contained in para 10 and para 10.1 herein above.
21. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
