Gujarat High Court
Oriental vs Bhakulaben on 12 September, 2008
Bench: J.R.Vora, M.R. Shah
CA/5570/2008 15/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION - FOR STAY No. 5570 of 2008 In FIRST APPEAL No. 2303 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 CO LTD - Petitioner(s) Versus BHAKULABEN MAHESHBHAI SHANTILAL BHATT & 3 - Respondent(s) ========================================================= Appearance : MR RAJNI H MEHTA for Petitioner(s) : 1, MR ARPIT A KAPADIA for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 3. MR HARDIK C RAWAL for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/09/2008 ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE M.R. SHAH) Present Civil Application is preferred by the applicant ý original appellant/respondent No.2 ý Oriental Insurance Company Limited to stay the further execution, operation and implementation of the Judgement and Award dtd.6/10/2007 passed by the Motor Accident Claim Tribunal (Auxiliary), FTC No.3, Bharuch in Motor Accident Claim Petition No. 440 of 2004, during the pendency and final disposal of the First Appeal No.2303 of 2008.
The respondent No.1 ý original claimant had preferred Motor Accident Claim Petition No. 440 of 2004 before the Motor Accident Claim Tribunal (Auxiliary), Bharuch for getting compensation under the provisions of the Motor Vehicles Act, for the injuries and permanent partial disability sustained by her in the vehicular accident. Initially, the claimant claimed Rs.15 Lacs only and thereafter, after the evidence was over and even after the arguments were completed, the said claimant enhanced the claim from Rs.15 Lacs to Rs.30 Lacs and ultimately, the learned Motor Accident Claim Tribunal (Auxiliary), FTC No.3, Bharuch, by the impugned Judgement and Award dtd.6/10/2007 partly allowed the said application awarding compensation of Rs.21,30,767=00 with interest at the rate of 9% from the date of application i.e. 17/7/2004 till realisation and further directing the original opponent No.1 and the appellant Insurance Company to pay 90% of the said compensation and further directing the opponent Nos.3 and 4 to pay 10% of the compensation. The learned trial court further passed an order to invest 70% of the awarded amount in any Nationalised Bank for a period of five years and also directed to pay remaining 30% amount to the original claimant by Account Payee Cheque. Being aggrieved by and dissatisfied with the judgement and award, the appellant Insurance Company has preferred First Appeal No.2303 of 2008 which is admitted and the present Civil Application is preferred for stay of the further implementation, operation and execution of the Judgement and Award during the pendency and final hearing of the First Appeal.
Heard Mr.Rajni H. Mehta, learned advocate appearing on behalf of the applicant ý Insurance Company and Mr.Arpit Kapadia, learned advocate appearing on behalf of the original claimant.
The application is highly contested by the learned advocate appearing on behalf of the respective parties more particularly by Mr.Aripit Kapadia, learned advocate appearing on behalf of the respondent No.1 ý original claimant.
Mr.Mehta, learned advocate appearing on behalf of the applicant - Insurance Company has made the following submissions in support of his prayer to grant stay of further execution of the impugned judgement and award passed by the Motor Accident Claim Tribunal during the pendency and final disposal of the First Appeal;
The original claimant was/is residing at Ahmedabad and the accident had taken place within the territorial jurisdiction of Motor Accident Claim Tribunal, Vadodara and still the claim petition was submitted before the Motor Accident Claim Tribunal, Bharuch.
The original claim of the claimant was for compensation of Rs.15 Lacs only and even examination-in-chief of the claimant and even cross-examination of the original applicant by the appellant - Insurance Company was considering the claim of Rs.15 Lacs only and after the evidence was over and at the time of making oral submissions and at the fag end of the trial, the claim came to be enhanced from Rs.15 Lacs to Rs.30 Lacs and the learned Tribunal has awarded compensation of Rs.21,30,767=00 with 9% interest per annum.
The learned Motor Accident Claim Tribunal has awarded compensation of Rs. Rs.21,30,767=00 under the following different heads
(a) Rs.11,97,000=00 towards future economic loss.
(b) Rs.01,00,000=00 towards pain, shock and suffering.
(c) Rs.1,05,000=00 towards actual loss of income.
(d) Rs.4,49,767=00 towards medical expenditure.
(e) Rs.0,05,000=00 towards attendance charges & special diet.
(f) Rs.1,44,000=00 towards expenditure for artificial leg in future.
(g) Rs.1,30,000=00 towards transportation while taking treatment and for treatment in future.
Mr.Mehta, learned advocate appearing on behalf of the applicant ý Insurance Company has vehemently submitted that the appellant Insurance Company is challenging the award of the Motor Accident Claim Tribunal in so far as awarding Rs.11,97,000 under the head of future economic loss; Rs.1,05,000 towards actual loss of income and Rs.1,30,000 towards transportation during treatment and for treatment in future.
Mr.Mehta, learned advocate appearing on behalf of the applicant has submitted that the claimant was serving as a head clerk in one Vivekanand College of Arts and was earning Rs.15,370=00 at the time of accident and it has come on evidence and it is admitted by the claimant in her cross-examination that she was serving as Head Clerk in Vivekanand College of Arts at the time of accident and she is still in service and in fact her salary has been increased after the date of accident and there is no reduction in her salary and/or earning due to the accident and therefore, when there is no actual loss of income and/or likelihood of future loss of income, the impugned judgement and award passed by the trial court awarding future economic loss as well as the actual loss of income, deserves to be quashed and set aside. It is also further submitted by Mr.Mehta, learned advocate for the Insurance Company that the Motor Accident Claim Tribunal has awarded Rs.1,05,000=00 towards the actual loss of income. However, there is no actual loss of income caused to the claimant as she got full salary for the period during which she was on leave while she was hospitalised and was taking treatment. It is also further submitted that considering the age of the original claimant of 50 years at the time of accident, the learned Tribunal has committed an error in even applying the multiplier of 11.
It is also further submitted by Mr.Mehta, that the learned Motor Accident Claim Tribunal has further erred in awarding Rs.1.30,000=00 towards transportation expenditure while going to office for seven years at the rate of 18,000=00 per annum. Thus, it is submitted that the impugned judgement and award passed by the tribunal is exorbitant and therefore, it is requested to grant interim stay against the impugned Judgement and Award during the the pendency and final disposal of the First Appeal and the claimant may not be permitted to withdraw 30% of the amount of award which comes to approximately Rs.10 Lacs and even withdrawal of such a huge amount would not be in the interest of the original claimant.
Present Civil Application is opposed by Mr.Arpit Kapadia, learned advocate appearing on behalf of the original claimant. Number of authorities have been cited by him in support of his submission that just compensation is awarded by the Motor Accident Claim Tribunal and even the claim can be enhanced at any time and therefore, no illegality has been committed when the claim came to be enhanced from Rs.15 Lacs to Rs.30 Lacs. It is also further submitted by Mr.Kapadia, learned advocate appearing on behalf of the original claimant that the original claimant had temporarily shifted to village Sajod, District ; Bharuch and therefore, under the provisions of the Motor Vehicles Act, claim petition can be filed at the place where the claimant is residing and therefore, no illegality is committed when the claim petition came to be filed before the Motor Accident Claim Tribunal, Bharuch. It is also further submitted that the claimant has sustained permanent partial disability to the extent of 95% and both the legs of the original claimants came to be amputed and therefore, her earning capacity can be said to be reduced and therefore, irrespective of the fact that whether there is any actual loss of income and/or likelihood of future loss of income, the amount of compensation can be awarded under the head of future economic loss. He has relied upon the decision of the Calcutta High Court in the case of Parvat Chandra Maity Vs. Oriental Insurance Co.Ltd. and Ors., reported in 2008 ACJ 53, and decision of the Division Bench of this Court in the case of Mahendrakumar Manilal Patel & Anr. Vs. Ramjibhai Dalsibhai Chaudhary & Ors., reported in 2006(1) GLR 637, in support of his submission that the Motor Accident Claim Tribunal has not committed any error in awarding future economic loss and actual loss of income insptie of the fact that the claimant has been continued in service, her salary has been increased and/or her earning has not been affected due to accident. It is also further submitted by him that as such even the impugned award by the learned Motor Accident Claim Tribunal is on the lower side and the original claimant proposes to file cross-examination and/or cross appeal. By making above submissions, it is requested not to grant interim relief as prayed for.
Having heard the learned advocate appearing on behalf of the respective parties it prima facie appears to us that the impugned Judgement and Award passed by the Motor Accident Claim Tribunal awarding compensation of Rs.21,30,767=00 with interest at the rate of 9% from the date of application deserves to be stayed during the pendency and final disposal of the appeal on certain condition and it prima facie appears that the impugned judgement and award passed by the Motor Accident Claim Tribunal is exorbitant and on higher side. If the claimant is permitted to withdraw 30% of the amount of compensation as ordered by the Motor Accident Claim Tribunal, which would approximately comes to Rs.10 Lacs and if ultimately the applicant ý Insurance Company succeeds in the appeal, in that case, it will be difficult for the applicant ý Insurance Company to recover the said amount. The following are the prima facie observations for grant of the interim relief as prayed for;
The original claimant is permanent residing at Ahmedabad and is serving as Head Clerk in a college at Ahmedabad. The accident in question has taken place within the territorial jurisdiction of Motor Accident Claim Tribunal, Vadodara and the claim petition has been filed in Motor Accident Claim Tribunal, Bharuch and a show is made that temporarily the original claimant was residing at Village Sajod, District Bharuch. However, there is no supporting evidence, documentary evidence and/or any other evidence on record to prima facie satisfy that the claimant was even temporarily residing at Village Sajod, District ; Bharuch. The claimant is and was serving as a head clerk in Vivekanand College and was getting salary of Rs.15,000 and odd per month and it is admitted by the original claimant in the cross examination that her salary and/or income has not been affected due to the accident and in fact her salary has been increased even after the accident and she has been continued in service. It also appears that the original claimant has also got full salary for the period during which she was on leave and was taking treatment after accident and thus, there is no actual loss of income sustained by her. Thus, prima facie it appears that as such even as per the admission of the original claimant neither there was any actual loss of income nor there is any future loss of income and therefore, prima facie it appears that the tribunal has committed an error in awarding Rs.11,97,000=00 towards future economic loss and Rs.1,05,000=00 towards actual loss of income.
Now, so far as the reliance placed by the learned advocate appearing on behalf of the original claimant upon the decision of the Divisin Bench in the case of State of Gujarat Vs. Somabhai Dhudabhai Vs. Sindhara & Ors., reported in 1993(2) GLR 714 is concerned, it is to be noted that even in the said decision, the Division Bench has not awarded full amount of salary, as awarded by the learned Motor Accident Claim Tribunal in the present case. Even the copy of the entire said reported judgement is not produced before us, the copy of paragraph No.16 onwards of the said judgement is supplied to us.
The other judgements on which reliance has been placed by Mr.Kapadia, learned advocate appearing on behalf of the original claimants, are required to be considered and appreciated at the time of final hearing of the main First Appeal and any observation made by this Court on merits in detail dealing with the aforesaid decisions would ultimately affect the case of the parties in appeal and therefore, we refrain from discussing the judgments.
Considering the above, we are of the prima facie opinion that the impugned judgement and award passed by the Motor Accident Claim Tribunal require to be stayed on certain conditions and the original claimant cannot be permitted to withdraw 30% of the amount of compensation as awarded by the learned Tribunal, as ordered by the Motor Accident Claim Tribunal, which approximately comes to Rs.10 Lacs and as such the same will also not be in the interest of original claimant. It is reported that the original appellant - Insurance Company has deposited in all Rs.23,58,696=00 with the tribunal and therefore, while staying the operation and implementation of the impugned judgement and award, following directions are issued to meet with the ends of justice.
There shall be interim relief in terms of para 6(i) i.e. the further execution, operation and implementation of the impugned judgement and award dtd.6/10/2007 passed by the Motor Accident Claim Tribunal (Auxiliary), FTC No.3, Bharuch in Motor Accident Claim Petition No. 440 of 2004 is stayed during the pendency and final disposal of the First Appeal No.2303 of 2008 on condition that 50% of the amount awarded by the Motor Accident Claim Tribunal shall be invested by the Motor Accident Claim Tribunal in Fixed Deposit in any Nationalised Bank in the name of joint names of Nazir/Registrar of the Motor Accident Claim Tribunal and the original claimant, with cumulative effect, initially for a period of five years, meaning thereby the original claimant shall not be permitted to withdraw even periodical interest on the said Fixed Deposit. The Motor Accident Claim Tribunal is further directed to invest 40% of the awarded amount in Fixed Deposit in any Nationalised Bank in the name of the original claimant initially for a period of five years and the original claimant shall be entitled to periodical quarterly interest on the said amount. However, the Motor Accident Claim Tribunal is directed to see that there shall not be any loan or advance on the said Fixed Deposit. The Motor Accident Claim Tribunal is further directed to pay remaining 10% of the awarded amount of compensation to the original claimant by Account Payee Cheque only, after due verification and identification and the said cheque be handed over the original claimant personally after obtaining her signature against the receipt of such cheque.
In the facts and circumstances of the case and as the record and proceedings are available, the applicant/appellant ý Insurance Company is permitted to supply paper book within a period of three months from today. Registry is directed to notify main First Appeal No.2303 of 2008 for final hearing before the appropriate Court taking up such matters, as soon as the Paper Book is received. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
[J.R. VORA, J.] [M.R. SHAH, J.] rafik