Gujarat High Court
Bharti Axa General Insurance Co Ltd vs Gafurbhai Kalabhai Desai on 1 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 137, (2019) 4 ACC 550
Author: R.M.Chhaya
Bench: R.M.Chhaya, B.N. Karia
C/FA/1445/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1445 of 2014
With
R/CROSS OBJECTION NO. 22 of 2015
In
FIRST APPEAL NO. 1445 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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BHARTI AXA GENERAL INSURANCE CO LTD
Versus
GAFURBHAI KALABHAI DESAI & 4 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR VA MANSURI(2880) for the Defendant(s) No. 5.1,5.2,5.3,5.4,5.5
RULE SERVED(64) for the Defendant(s) No. 1
RULE UNSERVED(68) for the Defendant(s) No. 2,4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 01/07/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Page 1 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT Tribunal (Auxi), Sabarkantha in Motor Accident Claims Petition No. 1744 of 2013 (Old MACP No. 299 of 2011), the appellant - Bharti AXA General Insurance Company Limited has preferred this Appeal.
2.0. The short facts which can be culled out from the record of the main appeal are as under:
2.1. That, on 19.06.2010, at about 10:00 hours, the deceased driving Indica Car bearing Registration No.GJ1HD5038 and was traveling from Bayad to Ahmedabad and when deceased reached near village Antoli at that time, the Truck bearing Registration No.GJ14T4291 was lying on the left side of the road without any signal, indicator or reflectors and because of lights of oncoming vehicle from the opposite direction, deceased was dazzled and because of the same, deceased could not show the truck lying on the road and dashed in rear side of the truck. Due to the said accident, the deceased sustained serious injuries and died on the spot.
2.2. The respondents original claimants preferred present Claim Petition and claimed Rs. 25 lakh as compensation under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"). An FIR was lodged at Exh.39 with the jurisdictional police. The respondents original claimants also adduced following oral as well as documentary evidence before the Tribunal.
Exh.No. Particulars 33 Examination In chief of Meenaben Bhrahmbhatt 39 Complaint. Page 2 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT 40 Panchanama 41 Application given to the DGP 42 Reply given by the DGP 43 Copy of FIR 44 Tax Bill issued by the Ahmedabad Municipal Corporation 45 Copy of 7/12 extract 47 Possession letter of shop no.9 issued by the Hardik Builders. 48 Allotment letter of shop no.9 issued by the Shivkrupa Association 50 PM Note of deceased Dharmeshbhai 51 Purshis of evidence close 56 Copy of Insurance Policy 57 Copy of charge sheet
2.3. The Tribunal after appreciating the evidence on record and considering the submissions made by the respective parties, partly allowed the claim petition and it is held that the respondents -
original claimants are entitled to total compensation of Rs.15,01,000/ with 8% interest from the date of application till its realization from the respondents i.e. 50% of the original respondent nos. 1 to 3 and 50% of original respondent nos. 4 and 5.
2.4. Being aggrieved and dissatisfied with the judgment and award passed by the Tribunal, the appellant - Bharti AXA General Insurance Company Limited has preferred this appeal.
3.0. Heard Mr. Vibhuti Nanavti, learned advocate for the appellant - Bharti AXA General Insurance Company Limited, Mr. Page 3 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT Maulik Shelat, learned advocate for the respondent no.3 National Insurance Company Limited and Mr. MTM Hakim, learned advocate for Mr.V.A. Mansuri, learned advocate for the original claimants. Mr. Vibhuti Nanavati, learned advocate for the appellant - Bharti AXA General Insurance Company Limited further pointed out that as per the order dated 12.01.2015 passed by this Court in Civil Application No.12297 of 2014, respondent nos. 2 and 4 have been served by the substitution of service. However, according to Mr. Nanavati even their presence is not essential for deciding the present appeal.
4.0. Mr. Nanavati, learned advocate for the appellant - Bharti AXA General Insurance Company Limited contended as under:
(I). Mr. Nanavati referring to the deposition of the original claimant - wife of the deceased at Exh.33 contended that the Indica Car bearing Registration No.GJ1HD5038 was of the ownership of the one Hemant Ganeshbhai Thapa respondent no.4 herein as per the registration book and deceased Dharmeshbhai was not paid driver. Mr. Nanavati further submitted that the original claimant wife of the deceased has admitted the fact that Dharmeshbhai was the owner of the said car and was driving the car on the date of accident and therefore, it was contended by the Nanavati that deceased Dharmeshbhai cannot be said to be paid driver of the vehicle involved in the accident and the Tribunal has therefore, misread the oral evidence at Exh.33 and has wrongly come to the conclusion that the deceased Dharmeshbhai was the paid driver. (II). Mr. Nanavati also refers to the original claim petition filed by the respondents - original claimants and has submitted that the Page 4 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT case of the original claimants respondents before the Tribunal was that the deceased was carrying the business of readymade garments in the name and style of M/s. Maintri Corporation and was having agriculture income also. Mr. Nanavti further submitted that the original claimants have relied upon the income tax return filed by the deceased wherein it is shown that the deceased was a businessman. Mr. Nanavti again further referring to the claim petition that it was nowhere case of original claimants that the deceased was a paid driver and th said fact is not proved by any evidence whatsoever.
(III). Mr. Nanavati, therfore, submitted that the Tribunal has erred in coming to the conclusion that deceased was paid driver and has therefore, committed error in deciding legal liability of the appellant Insurance Company. Mr. Nanavati also submitted that even though the policy of the Indica Car shows that Rs.25/ additional premium was paid to cover the risk of the paid driver, the deceased was not paid driver and the said fact is not proved by the original claimants. Again referring to the deposition of the wife of the deceased at Exh.33, Mr. Nanavati contended that as such said witness has admitted the fact that deceased was owner of the car and was plying car as owner of the vehicle.
(IV). Relying upon the judgment of this Court in the case of United India Insurance Company Limited vs. Jagatsinh Valsinh reported in 1985 GLH 573, Mr. Nanavati contended that the tort feasor himself cannot take advantage of his own wrong. On the aforesaid ground, Mr. Nanavati contended that appellant Bharti AXA General Insurance Company Limited is not liable to satisfy the award and be exonerated by allowing the appeal.Page 5 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019
C/FA/1445/2014 JUDGMENT (V). Mr. Nanavati has also drawn attention of this Court to the order dated 10.07.2014 passed by this Court in Civil Application No.5644 of 2014 and further submitted that in case if this Court comes to the conclusion that the appellant Bharti AXA General Insurance Company Limited is not liable to satisfy the award, appropriate order for refund of the amount deposited as per the order passed by this Court be passed while allowing the appeal including proportionate interest.
5.0. Per Contra, Mr. MTM Hakim, learned advocate for the respondents original claimants has supported the impugned judgment and award as far as liability of the appellant is concerned. Mr. Hakim however further contended that the Tribunal has considered the prospective income only to the extent of 30% whereas considering the age of the deceased on the date of accident, according to Mr. Hakim the same could be considered to be 40% following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680. It was further contended by Mr. Hakim that considering the number of dependents, the Tribunal has committed an error in deducting 1/3rd amount towards personal expenses, which could be 1/4th following the judgment of the Hon'ble Supreme Court in the case of Smt. Sarla Verma and ors vs. Delhi Road Transport Corporation and Anr reported in (2009) 6 SCC 121.
5.1. Referring to the panchnama of the occurrence and the FIR at Exh.43, it was contended by Mr. Hakim that the Tribunal has Page 6 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT wrongly come to the conclusion that the driver of both the vehicles are equally negligent. Mr. Hakim further submitted that FIR at Exh.43 was filed against the driver of the truck under Sections, 122, 141 and 190 of the Motor Vehicles Act, 1988 and the record indicates that the driver confessed to commission of offence while parking in vehicle in dangerous position on the road without any signal, reflector or indicator and in fact has paid fine of Rs.250/. Relying upon the judgment of this Court in the case of Oriental Insurance Company Limited vs. Chirag Nayankumar Shah reported in 2015(3) AICJ 348 driver of the truck involved in the accident should be held to be more liable and according Mr. Hakim the same should be in the ratio of 70% : 30% as decided by the Hon'ble Supreme Court in the case of National Insurance Company Limited (supra).
5.2. Mr. Hakim also further submitted that following the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra) compensation under the different conventional heads deserve to be enhanced from Rs.25000/ to Rs.70,000/. On the aforesaid ground, it was contended by Mr. Hakim Cross Objection be allowed.
6.0. Mr. Maulik Shelat, learned advocate for the Insurance Company National Insurance Company Limited - respondent no.3 herein has submitted that it is matter of fact that original claimants
- wife of the deceased had admitted in her cross examination that the deceased was owner of the Car. Mr. Shelat contended that record indicates that the respondent no.4 was the owner of Indica Page 7 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT Car and there is nothing on record to show that deceased was paid driver and even the record indicates that the premium of Rs.25 was paid. Mr. Shelat however contended that the Tribunal has rightly appreciated the evidence on record and has correctly come to the conclusion that the driver of both the vehicles were equally negligent and the same does not require any modification. As far as cross objection filed by the original claimants are concerned, Mr. Shelat contended that considering the ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), this Court may pass appropriate order.
7.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.
8.0. Having heard the learned advocates for the respective parties and upon considering the original record and proceedings, we may first examine the issue of liability of the appellant. In the deposition at Exh.33, the wife of the deceased has clearly admitted the fact that deceased was the owner of the car. There is no evidence on record to show that the deceased was paid driver. The Division Bench of this Court in the case of Jagatsinh Valsinh (supra) while considering the similar set of facts has come to the conclusion that the tort feasor cannot be take advantage of his own wrong. In view of the aforesaid facts and as deceased Dharmeshbhai cannot be said to be a paid driver and upon reappreciation of evidence on record, we find that the Tribunal has committed an error in coming to the conclusion that the Dharmeshbhai was a paid driver. In facts of this case, Dharmeshbhai was himself driving a Car and there is no iota Page 8 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT of evidence to show that he was paid driver of the owner - respondent no.4 herein. No evidence to said effect has been led and therefore, the appellant - Insurance Company Bharti AXA General Insurance Company Limited cannot be held to be liable. This Court in the case of United India Insurance Co Limited vs. Maganbhai Darubhai Parmar through legal heirs reported in 2016(3) GLR 2342 has observed thus:
"6.0. Heard learned advocates appearing for respective parties at length. I have reappreciated the entire evidence on record.
At the outset it is required to be noted that as pleaded by the original claimants even in the claim petition and even as deposed by the original claimant No.1 Ushaben, the deceased himself was driving the jeep. It is also so pleaded and so stated by the original claimant No.1 in her deposition that the deceased was serving as a driver of Tempo and earning Rs.2500/ per month. Nothing is on record that the deceased was employed as a driver of the jeep. At this stage it is required to be noted that as such the jeep involved in the accident was owned by the father of the deceased himself. Merely because the deceased was driving the jeep, he cannot be said to be the driver of the jeep of which the risk was covered on payment of the additional premium. Only in a case with respect to the employed driver of the jeep, the additional risk of such driver on payment of additional premium can be said to have been covered. The learned Tribunal has held the appellant herein insurance company liable to pay the compensation solely on the ground that as the deceased was driving the jeep and therefore, he can be said to be the driver of the jeep, which cannot be sustained. As observed hereinabove, there is no evidence on record that the deceased was employed as driver of the jeep that too by his father owner of the jeep. As observed herein above on the contrary it was the case on behalf of the original claimants so pleaded in the claim petition as well as so stated in the deposition that the deceased was serving as a driver of tempo. Under the circumstances, the learned Tribunal has materially erred in holding the appellant insurance company liable to pay the compensation considering the additional premium paid with respect to covering the additional risk of the driver.Page 9 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019
C/FA/1445/2014 JUDGMENT [6.1] Even otherwise the impugned judgment and award passed by the learned Tribunal holding the appellant insurance company liable to pay the compensation cannot be sustained. It is required to be noted that the deceased himself was driving the jeep, even as admitted by the original claimants. Even the learned Tribunal has also held that at the time of accident the jeep was being driven by the deceased himself. There is a specific finding recorded by the learned Tribunal that the deceased himself can be said to be negligent for the accident. In that view of the matter, the tort feasor cannot be permitted to take benefit of his own wrong and therefore also, the insurance company insurer could not have been held liable to pay the compensation. This view is supported by the decisions of the Honble Supreme Court in the case of Sadanand Mukhi & Ors. (Supra) and decisions of this Court in the case of Hiteshbhai Sureshbhai Patel (Supra) and Jagatsinh Valsinh (Supra).
In view of the above and for the reasons stated above, impugned judgment and award passed by the learned Tribunal holding the appellant insurance company liable to pay the compensation cannot be sustained and the same deserves to be quashed and set aside.
8.1. In view of the above, therefore, the appellant Insurance Company Bharti AXA General Insurance Company Limited cannot be held to be liable to satisfy the award and the appellant - Insurance Company Bharti AXA General Insurance Company Limited deserves to be exonerated.
9.0. As far as negligence is concerned, upon reappreciation of evidence on record, we find that the Truck being bigger vehicle was in stationary position that too without any sign or reflector. The driver of the truck had admitted in the criminal proceeding that the truck was parked in a dangerous position and therefore, in opinion of this Court, the Tribunal has committed an error in coming to the conclusion that the driver of both the vehicles i.e. Truck and the Indica Car were negligent equally i.e. 50% :50%. At this juncture, it Page 10 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT would be appropriate to refer to the judgment of this Court in the case of Chirag Nayankumar Shah(supra) wherein in similar facts and circumstances and similar set of evidence, the Division Bench has considered the contributory negligent of both the vehicles to the extent of 70% : 30%. Mr. Hakim, learned advocate for the original claimants candidly submitted that considering the FIR at Exh.43 and panchnama at Exh.40, the manner in which the accident has occurred, the driver of the Indica Car is required to be held negligent to the extent to 30% and driver of the truck is required to be held negligent to the extent of 70%. Mr. Shelat learned advocate for the National Insurance Company Limited is not able to point out anything contrary to the same. In facts of this case, therefore, we come to the conclusion that the driver of the truck was negligent to the extent of 70% and driver of the car - deceased was negligent to the extent of 30%.
9.1. Considering the contention raised by the original claimants in their Cross Objection are concerned, it is found that the Tribunal on appreciation of the evidence on record has considered the annual income of the deceased at Rs. 1,61,121/ p.a. The original claimants have adduced documentary evidence by way of filing Income Tax Returns for AY 200708, 200809 and 200910 wherein the net income after deduction of tax is shown as under:
Year of Income Tax Income after deduction of Tax Return 200708 1,15,021/ 200809 1,35,163/ 200910 1,77,450/ Page 11 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT 9.2 Considering the mean of the same, the annual income would come to Rs.1,42,324/. Similarly, following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) the age of the deceased was 36 years at the time of accident and was businessman, the original claimants would be entitled to prospective income to the extent of 40% and hence annual income would come to Rs.1,99,127/. As there are more than three dependents, deduction towards personal expenses would be 1/4th and not 1/3rd and thus, out of Rs.1,99,127/ there would be deduction of Rs.49,781/ and thus, net income per year would come to Rs.1,49,346/ and applying multiplier of 15, the original claimants would be entitled to compensation under the head of loss of future dependency at Rs.22,40,190/. Over and above this, original claimants would be entitled to Rs.70,000/ as compensation under the different conventional heads and thus, respondents original claimants would be entitled to total compensation of Rs.23,10,190/. As the Tribunal has awarded Rs.
15,01,000/, the original claimants would be entitled to additional amount of Rs. 8,09,190/.
9.3. As decided by this Court by this judgment, the respondent no.3 Insurance Company National Insurance Company would be liable to the extent of 70% as this Court has come to the conclusion that th driver of the truck was negligent to the extent of 70%. As the deceased is held to be negligent to the extent of 30%, the National Insurance Company respondent no.3 as well as driver and owner of the Truck would be jointly and severally required to pay Page 12 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019 C/FA/1445/2014 JUDGMENT Rs.16,70,133/ with interest at rate of 8% from the date of filing of claim petition till its realization.
10. The appeal filed by the appellant Insurance Company Bharti AXA General Insurance Company Limited is allowed as observed herein above and the Cross Objection filed by the original claimants is also allowed to the aforesaid extent. The impugned judgment and award is modified accordingly. The respondent no.3 National Insurance Company Limited shall deposit the remaining amount as per the present judgment passed by this Court within a period of three months from the date of receipt of the order. The appellant Insurance Company Bharti AXA General Insurance Company Limited shall be entitled to refund the amount deposited by it as per the order dated 10.07.2014 passed in Civil Application No. 5644 of 2014. The record and proceedings be remitted back to the Tribunal forthwith. However, there shall be no order as to costs.
sd/ (R.M.CHHAYA, J) sd/ (B.N. KARIA, J) KAUSHIK J. RATHOD Page 13 of 13 Downloaded on : Tue Jul 02 22:52:48 IST 2019