Gujarat High Court
Oriental vs Bhagwatiben on 23 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
FA/430/2010 13/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 430 of 2010
With
CIVIL
APPLICATION No. 2187 of 2010
In
FIRST APPEAL No. 430 of 2010
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ORIENTAL
INSURANCE COMPANY LTDTHRO'ITS MANAGER(HUB) - Appellant(s)
Versus
BHAGWATIBEN
RAJUBHAI PARMAR THRO'KIRTIBEN RAVJIBHAI PARMAR & 5 - Defendant(s)
=========================================================
Appearance
:
MR
VASANT S SHAH for
Appellant(s) : 1,
None for Defendant(s) : 1 - 6.
MR TUSHAR L
SHETH for Defendant(s) : 1.2.1, 1.2.2,1.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/02/2010
ORAL
ORDER
1. Heard learned advocate Mr.Vasant S. Shah for appellant Insurance Co. and learned advocate Mr.Tushar L. Sheth for respondents claimants.
2. With consent, the matter is taken up for final hearing today.
3. The appellant Insurance Co. has challenged common award passed by MAC Tribunal, Gondal in MACP No.50 to 53 of 2001 and 115 of 2001, dated 24.1.2008. In this appeal, appellant has challenged award passed in MACP No.52 of 2001 only.
4. Learned advocate Mr.Vasant S. Shah for appellant Insurance Co. submitted that in all, 18 passengers were travelling in rickshaw and out of that, 8 persons probably died and some had received injuries in accident. In such circumstances, the only question raised by learned advocate Mr.Shah before this Court challenging common award in respect to MACP No.52 of 2001 deceased Mayur that whether minor brother and sister of those minor, who died in accident, entitled any amount of compensation from appellant Insurance Co. or not ? The question is that in accident which took place on 12.11.2000 where deceased Rajeshbhai @ Rajubhai Lavjibhai Parmar along with other applicants who happened to be the wife and children of deceased Rajubhai were traveling in the rickshaw bearing No.GJ-3-X-8968 which was driven by deceased Rajubhai and they were going to Chotila and when the rickshaw was proceeding on Rajkot-Ahmedabad National Highway No.8 and was passing from near village Bamanbor, at that time truck bearing No.GJ-3-U-4544 being driven by its driver in fast and hectic speed, rashly and negligently on the wrong side of the road, so as to endanger humna life on a public road came from the opposite direction and tried to overtake matador lying ahead of truck dashed with rickshaw No.GJ-3-X-8968 and thereafter dashed with the ambassador car coming from behind the rickshaw and as a result of which, serious accident took place and deceased lost their lives and other applicants have sustained serious injuries. After the accident all injured persons were taken to the Government hospital, Chotila and postmortem of deceased was carried out there. The complaint regarding the accident was lodged against the driver of truck and concerned police was also carried out panchnama of scene of occurrence. The applicants of all the claim petitions have averred that accident in question had happened due to sole and sheer negligence on the part of driver of truck No.GJ-3-U-4544. That if the accident would not have occurred then persons would not have died and injured would have not sustained injuries and they will be much helpful to their family.
5. After considering written statement filed by Insurance Co. Exh.14 and Exh.15, issues have been framed by claims Tribunal, Gondal and ultimately, on basis of evidence, claims Tribunal has come to conclusion that in respect to deciding Issue No.1 in the affirmative so far as the driver of truck No.GJ-3-U-4544 is concerned and in the negative so far as the driver of rickshaw No.GJ-3-X-8968 and ambassador car No.GJ-10-T-1721. Means driver of truck has been held solely responsible for accident and due to his negligence, accident occurred.
6. Learned advocate Mr.Shah has not challenged question of negligence which has been decided by claims Tribunal, Gondal. The only contention is raised before this Court that deceased Mayur, who was aged about 8 years and minor at the relevant time of accident, whether remaining minor brother and sister entitle any amount of compensation when father and mother both have died in accident.
6.1 This being a short issue raised by learned advocate Mr.Shah relying upon decision of Apex Court in case of Manjuri Bera (Smt.) v. Oriental Insurance Co. Ltd. & Anr. reported in (2007) 10 SCC 643. Relying upon said decision, Mr.Shah submitted that three minors those who are brother and sister of deceased minor Mayur are not dependent of minor and therefore, they are not entitled any amount of compensation. Therefore, claims Tribunal has committed gross error in awarding compensation to minor brother and sister of deceased minor brother. He also submitted that in case of married daughter, the Apex Court has observed that she was entitled to receive compensation under ' no fault liability' in terms of Section 140 of the Act and it is confined only to the 'no fault liability' and in other cases, either 166 or 163-A, married daughter not being a dependent of his father, residing separately with the husband, not entitled any compensation for loss of dependency because of death of her father. Similarly, he relied upon aforesaid decisions on basis of facts of present case.
6.2 In the said accident, father, mother and minor brother died and three minors remained, who claim amount of compensation because of death of minor Mayur, who died in accident. Except that, no other submission is made by learned advocate Mr.Shah before this Court.
7. Learned advocate Mr.Tushar L. Sheth for respondents claimants submitted that written arguments was filed by appellant Insurance Co. before claims Tribunal vide Exh.46. He also submitted that Claim Case No.52 of 2001 where deceased Mayurbhai who died in accident, aged 8 years. The suggestion was made by appellant Insurance Co. in written argument vide Exh.46 that Rs.900/- is considered to be a prospective income, multiplied by 12 and then multiplier of 16 to be applied and 2/3rd amount is to be deducted, then it comes to Rs.1,14,000/- and Rs.2000/- for funeral expenses and Rs.5000/- for love and affection, in all it comes to Rs.1,21,000/- which has been suggested by appellant Insurance Co. before claims Tribunal. He submitted that contention which has been raised by Mr.Shah before this Court is a contention raised for the first time and same contention was not raised by appellant Insurance Co. before claims Tribunal. Therefore, he submitted that first time such contention which has been raised before this Court, cannot be entertained by this Court because before claims Tribunal, appellant Insurance Co. suggested the amount of compensation in written argument Exh.46 for death of Mayur, who was minor at Rs.1,21,000/- and now, to raise such contention before this Court first time which was not raised before claims Tribunal by appellant Insurance Co. Therefore, such contention should not be entertained by this Court and Exh.46 written argument made by appellant amounts to admission and no appellant is estopped to raise first time such new contention before this Court.
8. I have considered submissions made by both learned advocates and also perused the award passed by claims Tribunal and also considered written argument Exh.46 filed by appellant - Insurance Co. before claims Tribunal in respect to claim case No.52 of 2001 and also considering written statements filed by appellant Insurance Co. before claims Tribunal, first time such contention raised before this Court which was not raised before claims Tribunal by appellant Insurance Co., therefore, such contention cannot be permitted to be raised first time before this Court, considering recent decision of Apex Court in case of National Insurance Co. Ltd. v. Saroj and others reported in 2009 ACJ 2161. Relevant para 17 is quoted as under:
17.
Contention raised on behalf of the appellant that the claimant had not disclosed as to what amount they had received from the insurance company with whom the scooter driven by the deceased was insured cannot be considered by us for the first time as no such contention has been raised before the courts below. The legal representatives of the deceased examined themselves as witnesses. They should have cross-examined on the said question. The insurance company could have found out from other insurance company also as to whether, in fact, a claim had been advanced and whether insurance company paid any amount to them.
9. It is necessary to note that learned advocate Mr.Shah fairly admitted before this Court that contention which has been raised before this Court about entitlement of compensation to three minors for the death of their minor brother was not raised before claims Tribunal. In light of this background, whether such new plea which was not raised before claims Tribunal, can it be entertained by this Court or not. Such question has been examined by Apex Court in case of Ex.Constable Ramvir Singh v. Union of India & Ors. reported in 2009 AIR SCW
163. Relevant observations are in Para.9 which is quoted as under :
9.
The question as to whether he was discriminated against vis-`-vis the aforementioned Kalipada Mandal having not been raised by him before the High Court, we are of the opinion that it is not possible for us to consider the said contention which has been raised for the first time. Mr. Pandey submitted that such a contention had been raised in the Writ Petition. It might have been raised but it does not appear from the impugned judgment that the same was pressed before the High Court. This Court is bound by the Judge s record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attention thereto. Apart from the fact that the said procedure was not adopted by appellant, even before us, neither the counsel appearing in the High Court nor the appellant, affirmed any affidavit that such a contention, in fact, had been raised before the High Court. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant vis-a-vis the said Kalipada Mandal was raised.
10. The Apex Court has recently examined aforesaid issue in case of Mohd. Akram Ansari v. Chief Election Officer & Ors. reported in 2008 AIR SCW 416. Relevant observations are in Para.14 and 15 are quoted as under :
14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed.
Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.
15. Since no other point except the point of office of profit has been dealt with in the impugned judgment of the High Court, the presumption is that no other point was pressed before the High Court, even though the point may have been contained in the election petition. Hence we do not allow these points to be raised here.
11. The Apex Court has recently examined aforesaid issue in case of Md. Rafique @ Chachu v. State of West Bengal reported in 2008 (15) Scale
15. Relevant observations are in Para.5 are quoted as under :
5. It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or take a plea that no concession was given. This is clearly a case of sitting on the fence, and is not to be encouraged. If really there was no concession, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak (1982 (2) SCC 463). In a decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003 (2) SCC 111) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar v. Mohan Thedani (2003) 6 SCC 595).
11.1 Recently, Apex Court has considered same question in case of G. Suryakumari and Anr. v. B. Chandramouli and Ors. reported in 2010 AIR SCW 165. Relevant Para.16 to 21 are quoted as under :
16.
Learned Senior counsel for appellants, Mr. M.N. Rao, tried to advance before us some questions of law with regard to Order 9 Rule IX of the CPC, which were vehemently opposed by learned counsel for respondents on the ground, that this having not been taken earlier cannot be permitted to be taken up for the first time at this stage.
17. We have no doubt in our mind that at any point of time earlier it was neither raised nor argued or hammered at the stage of Trial Court, first appellate Court and High Court, thus it cannot be permitted to be taken up for consideration for the first time. Thus, we refrain from taking cognizance of those grounds which are sought to be taken now for the first time.
18. Learned senior counsel for the appellants has also strenuously submitted before us that as per O.9 R.IX, CPC, dismissal of earlier Suit filed before Junior Civil Judge, City Civil.A. @ S.L.P. (C) No.7296 of 2006 Court, Hyderabad against Gramodyog Cooperative Housing Society for injunction would create a bar against the present respondents/ plaintiffs to file fresh suit.
19. To put forth contentions further in this regard, learned counsel for appellants have placed reliance on a judgment reported in AIR 1949 Madras 882 titled, Yellapragada Gopalkrishnamurthi v. Pettu Poda Madireddi & Ors. and full Bench opinion of Punjab and Haryana High Court reported in AIR 1985 P&H 135 titled Gajpat Singh v. Sudhan (Died) Legal by L.Rs Hukam Chand.
20. We are afraid and as mentioned hereinabove that it would neither be proper nor permissible to raise this ground for the first time in this appeal before this Court. Admittedly, this ground was never taken by the appellants either before the Trial Court or First Appellate Court or in Second appeal in the High Court and has been tried to be advanced for the first time, which in our opinion is impermissible.
21. It is not necessary to deal this aspect of the matter as it stands concluded by various judgments of this Court, viz., (1) Municipal Corporation of Greater Mumbai & Anr. v. Kamla Mills Ltd., (2003) 6 SCC 315 : AIR 2003 SC 2998; (2) PanchugopalC.A. @ S.L.P. (C) No.7296 of 2006 Barua & Ors. v. Umesh Chandra Goswami & Ors. (1997) 4 SCC 713 : AIR 1997 SC 1041; (3) Nityananda Kar & Anr. v. State of Orissa & Ors. 1991 Supp (2) SCC 516; and (4) Ishwar Das Jain (Dead) Through LRs v. Sohan Lal (Dead) by LRs (2000) 1 SCC 434 : AIR 2000 SC 426.
(Also see Krishi Utpadan Mandli Samiti through its Secretary, Anand Nagar v. Arvind Chaubey and Anr. reported in 2003 I LLJ 507; Maharashtra State Mining Corpn. v. Sunit, S/p Pundikrao Pathak reported in 2006 SCC (L&S) 926, Orissa Industrial Infrasctructure Development Corporation v. Ashok Kumar Singh and Others reported in 2006 SCC (L&S) 999; National Fertilizers Ltd. & Ors. v. Somvir Singh reported in 2006 AIR SCW 2972.)
12. In view of above observations made by Apex Court and also considering written argument Exh.46 filed by appellant Insurance Co. before claims Tribunal giving concession for entitlement to minors to Rs.1,21,000/- because of death of Mayur Rajesh in claim case No.52 of 2001. Therefore, considering background of this case, that why decision has been taken by appellant Insurance Co. to file appeal because of observations made by this Court dated 17.8.2009 in SCA No.12793 of 2008. Thereafter, decision has been taken to file first appeal only on the ground that whether minors can claim amount of compensation for death of their brother, who was also minor. The minor claimants cannot consider to be dependent of minor, who died in accident. This specific contention was not raised before claims Tribunal. On the contrary, it was suggested giving concession by appellant Insurance Co. before claims Tribunal that claimants of claim case No.52 of 2001 are entitled to Rs.1,21,000/-. The larger issue which has been raised by Mr.Shah has been considered by Apex Court in case of GSRTC, Ahmedabad v. Ramanbhai Prabhatbhai and Anr. reported in 1987 ACJ 561 where decision of Division Bench of this Court in case of Megjibhai Khimji Vira v. Chaturbhai Taljabhai reported in 1977 ACJ 253 (Gujarat) has also been considered and in case of New India Assurance Co. Ltd. v. Ashwin Vrajlal Rajgor, Newphew of Late Kantilal D. Rajgor reported in 2005 (2) GLH 85 wherein also decision of Megjibhai Khimji Vira (supra) and GSRTC v. Ramanbhai (supra) have been considered by Division Bench of this Court. The relevant Para.4 and 5 are quoted as under :
4. On account of the close association which came to be established between India and Great Britain owing to the British rule which lasted for over two centuries, in the High Courts established in India the English Common Law which was based on principles of justice, equity and good conscience came to be applied wherever they were called upon to award damages or compensation for civil wrongs committed by the defendants in the suits. The application of the English Common Law, however, had to conform to Indian circumstances and conditions which necessarily involved a selective application of the English Law in India. The adoption of the rules of English Law by the Indian Courts observes M.C.Setalvad in his Common Law in India (The Hamlyn Lectures, Twelfth Series, Page 53) was neither automatic nor uncritical. Although they started with a presumption that a rule of English Law would be in accord- ance with the principles of justice, equity and good con- science, they bore in mind the reservation which was later expressed by the Privy Council in the words if found applicable to Indian society and circumstances. In the course of the application of the principles of the English Law of Torts in India the Indian courts came to recognise and apply the maxim action personalis moritur cum persona--a personal action dies with the parties to the cause of ac- tion. An action for a tort had to be begun in the joint lifetime of the wrongdoer and the person injured. The devel- opment of railways in England, led to a great upsurge in the number of accidents, many of which were fatal. When it was realised that the cause of action for recovery of damages for the death of a person caused by the wrongful act of another person did not survive on the death of the person to his legal representatives in England as a measure of law reform the Fatal Accidents Act, 1855 was passed for compen- sating the families of persons killed by accidents. That Act provided that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured . The said Act further provided that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shah have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before mentioned parties in such shares as the jury by their.verdict shall find and direct.
Within a few years after the passing of the said English Fatal Accidents Act, 1846, the Fatal Acci- dents Act, 1855-came to be passed on the 27th of March, 1855 in India. This Act contains in all five sections. Its pream- ble runs thus:
Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is often-times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him. It is enacted as follows:-
5. Sections 1A and 2 of that Act which are relevant for our present purpose read thus:
1A.
Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;
and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death tothe parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be cleivided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.
2. Provided always that not more than one action or suit shall be brought for and in respect of the same subject matter of com- plaint:
Provided that in any such action or suit the executor, administrator or represen- tative of the deceased may insert a claim for, and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased. (emphasis added)
13. Therefore, contention which has been raised by learned advocate Mr.Shah cannot be accepted in light of written argument and concession Exh.46 statement which has been made before claims Tribunal and also in light of the fact that no such contention was raised before claims Tribunal by appellant Insurance Co. Therefore, merely having some observations of this Court dated 17.8.2009 cannot be considered to be a ground to file first appeal and raise a new contention which was not raised by appellant Insurance Co. before claims Tribunal. On the contrary, a submission is made to the effect that claimants of claim case No.52 of 2001 are entitled to Rs.1,21,000/-. Therefore, in light of such admission of appellant Insurance Co. in written argument Exh.46, according to my opinion, appellant is estopped to raise such contention for the first time, cannot be entertained and therefore, that contention is rejected. The claims Tribunal has rightly examined the matter and passed the award in favour of claimants of MACP No.52 of 2001. For that, claims Tribunal has not committed any error which requires interference by this Court. Therefore, there is no substance in present first appeal. Accordingly, first appeal is dismissed.
14. Since main first appeal is dismissed, no order is required to be made in civil application for stay. Accordingly, civil application for stay is also dismissed.
(H.K.RATHOD,J.) (vipul) Top