Gujarat High Court
National vs Bhagwati on 13 August, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/3650/2008 18/ 18 ORDER
IN THE
HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3650 of 2008
With
CIVIL
APPLICATION No. 9513 of 2008
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NATIONAL
INSURANCE CO LTD. - Appellant(s)
Versus
BHAGWATI
PRABHULAL TAILI (MINOR) RES. THROUGH GUARDIAN & 2 - Defendant(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1,1.2.1 - 2.
MR CB
DASTOOR for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/08/2008
ORAL
ORDER
1. Heard learned advocate Mr. Dakshesh Mehta appearing on behalf of appellant ? National Insurance Company Limited.
2. In this appeal, the appellant ? Insurance Company has challenged the award passed by Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No.1790 of 1993 vide Exh.66 dated 30th August 2002. The Claims Tribunal has awarded compensation of Rs.2,65,900/- with 9% interest in favour of respondent claimant.
3. Learned advocate Mr. Mehta raised contention that accident occurred on 6.6.1993 which was prior to amendment of 1994 and therefore, any person define in Section 147 including owner of the goods and representatives of the owners are not applicable to the facts of this case. He also submitted that looking to the terms and conditions of insurance policy, the risk of gratuitous passenger is not covered. He also raised contention that on the date of accident on 6.6.1993, the deceased was travelling in tempo bearing No.GJ-7-T-7036 as a gratuitous passenger by paying fare to the tempo driver and such travelling is not permissible under the terms of insurance policy and risk of such passenger is not covered, therefore, Tribunal has committed gross error in awarding compensation to the respondent claimant to be recovered from the appellant ? insurance company. He also submitted that the decision of Satpalsingh reported in 2000(1) SCC 237, which was subsequently by Larger Bench of the Apex Court in case of Asharani reported in 2003(2) SCC 223, overruled. Therefore, definition of any person now does not mean, except insured and insurer, all the persons which covered. Therefore, he submitted that the Tribunal has committed gross error by not accepting the contentions raised by insurance company and therefore, award passed by Tribunal is required interference by this Court. Except that, no other contention was raised by learned advocate Mr. Mehta before this Court.
4. I have considered the submissions made by learned advocate Mr. Mehta and I have perused the award passed by Claims Tribunal. On 6.6.1993, the claimant was travelling in one tempo bearing No.GJ-7-T-7036 along with 'Larry' for doing business of selling Paubhaji at Surat, from Nadiad to Surat and said tempo was driven by opponent No.1. Opponent No.1 was driving the said tempo in a rash and negligent manner and due to such type of driving, one vehicle had dashed form the behind to the tempo and opponent No.1 lost the control on his vehicle and tempo was fallen in the ditch beside road and claimant who was travelling in the said tempo sustained injury and fracture on his spinal cord. The claimant was earning Rs.2,000/- by doing business of selling 'Paubhaji', but, due to the permanent disability, he was unable to do the work and therefore, the claim petition was filed before the Claims Tribunal.
5. This claim petition was filed by the claimant ? the Insurance Company raising the contention before the Claims Tribunal denying the averments made in claim petition and also raised contention that insurance policy does not cover the risk of the claimant for travelling in the goods vehicle, hence, alternatively, insurance company is not liable to pay any compensation to the claimant. The reply Exh.15 was filed by insurance company and also denied the facts stated in the claim petition and also disputed the facts stated in claim petition. Thereafter, the issues were framed by Tribunal vide Exh.20. The Claims Tribunal has examined the matter that accident having taken place of the vehicle in which the claimant was travelling and one another truck which had dashed the tempo from behind and opponent No.1 should not control his tempo and his tempo was fallen down in the ditch beside the road, but, the opponent driver nor the owner have stepped into the witness box nor the insurance company had examined them on oath before the Tribunal. Except the verification made by the officer of the insurance company, no adversary to the claimant has entered the witness box nor have they produced any documentary evidence to prove that other truck which had dashed behind the tempo, was only in negligent. The reply made on verification at Exh.15 is the only statement in rebuttal made by the opponent No.3. Opponents No.1 and 2 though served have not filed their written statement nor are they represented by any advocates. The claimant was examined vide Exh.21 stated that he was doing the business since long and on 6.6.1993 at about 4-00 pm incident took place when he was travelling with his 'Lorry' in tempo bearing No.GJ-7-T-7036. Dineshbhai ? opponent No.1 was the driver of the said tempo and Babubhai was the owner of the said tempo. The said tempo was insured by the National Insurance Company Limited and this accident was occurred between Miyagam and Palej on National Highway. After receiving the injury, the claimant was rushed to Civil Hospital, Bharuch. FIR and Panchnama were produced on record which goes to show that the vehicle was involved in the accident. Even order below under Section 140 of the MV Act confirms this fact. The arguments of advocate of respondent No.3 are that the driver of tempo is not at all negligent, but, the driver of the unknown truck who dashed with the said tempo and ran away is at all negligent and in his absence, no negligence can be proved. But, Tribunal has considered the FIR, Panchnama and oral evidence of the claimant and come to conclusion that because of rash and negligent driving of opponent No.1, the tempo was fallen down in the ditch of the road. There was no negligence on the part of the claimant, because, he was travelling in the tempo with 'Larry'. Thereafter, Tribunal has examined the question of negligence and come to conclusion while considering the contention raised by insurance company that another tortfeasor is not joined as a party that has been examined by the Tribunal and according to Tribunal, claimant will entitled to recover the damage from opponent No.1 as opponent No.1 is a tortfeasor and hence, the accident took place due to the negligence of the driver who has not controlled his vehicle and in these circumstances, the issue No.1 is decided affirmative by the Claims Tribunal.
6. According to Tribunal, driver of the truck who dashed on the back of the tempo was at all negligent, then, it would be the injury by the composite negligence which means negligence by other person other than negligence of the victim and therefore, the petitioner is entitled to sue all or any of the negligent person and it is no concern of the petitioner whether there is contribution of those persons and he would have a right to recover the full amount of damage from any of the tortfeasor joined. Therefore, contention raised by insurance company has been rejected by the Claims Tribunal.
7. Thereafter, Tribunal has examined the quantum of compensation and relying upon the certain decisions of this Court in Para 12 and thereafter, Tribunal has, after considering the documents on record, assessed the income of the claimant Rs.1,000/- per month with future prospect and other relevant aspect of the business, it comes to Rs.1200/- per month and 100% disablement for the body as a whole as per medical certificate at Exh.29 when due to injury, the claimant was paralysed and therefore, Tribunal has worked out the compensation while applying 16 multiplier and Rs.1,44,000/- being a loss caused to the claimant comes to Rs.2,33,400/-. Para 21 is, therefore, quoted as under and accordingly, Tribunal has awarded Rs.2,65,900/- :
?S21. Calculating the compensation of the various heads as follow :
Rs.4,500/-
Medical treatment and medical bills.
Rs.20,000/-
pain, shock and suffering.
Rs.3,000/-
attendant charges.
Rs.4,000/-
special diet, transportation allowance.
Rs.2,30,400/-
Loss of future income.
Rs.4,000/-
actual loss of income.
-----------
Total Rs.2,65,900/-
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The petitioner is entitled for Rs.2,65,900/- as total compensation.?S
8. The Tribunal has considered that on the date on which accident occurred, insurance policy was in force and cover note was not objected by advocate of insurance company. Therefore, liability held on insurance company by the Claims Tribunal as discussed in Para 22 which is quoted as under :
?S22. LIABILITY :
As stated above, the accident occurred due to rash and negligent driving on the part of opponent no.1, opponent no.2 is the owner of the said tempo. A cover ;note of the policy is produced at Ex.28 which shows that the tempo was owned by opponent no.2 at the time of accident and it was insured with opponent no.3 and that the policy was in force at the time of accident. This cover note is not objected. Therefore, all the three opponents are liable to pay compensation to the petitioner jointly and severally, hence, so far as for issue no.2 is concerned, I hold that the petitioner is entitled for the compensation of Rs.2,65,900/- from opponents no.1 and 3 jointly and severally, hence, I answer this issue accordingly.?S
9. It is necessary to note that because of injury received by the claimant which has been certified in medical certificate vide Exh.29, where, claimant was paralysed and was having 100% disablement for the body as a whole, meaning thereby that, he was not able to do any kind of work for maintaining himself and for his family. As a consequence of the injury received by the claimant on 6.6.1993, he died on 22.04.2001 as death certificate is produced by learned advocate Mr. F.B. Brahmbhaat by letter dated 7th September 2007 addressed to learned advocate Mr. Mehta. Now, only a minor daughter Bhagwati Prabhulal Taili is remained as a legal heirs and representative of Prabhulal Taili. Therefore, now, minor daughter is remained which has been joined as a party to the present proceedings.
10. The contention which has been raised by learned advocate Mr. Mehta that claimant was travelling in a goods vehicle as a gratuitous passenger and therefore, insurance company is not liable for payment of compensation as risk of claimant is not covered under the policy, because, no additional premium was paid by the insured owner. No doubt, in written statement, only contention was raised that insurance policy does not covered the risk of applicant claimant for travelling in goods vehicle and alternatively, it was mentioned that insurance company is not liable to pay any compensation to claimant. But, it is necessary to note one important aspect that from entire award, no such submission was made by the advocate of the insurance company raising the contention that risk of the gratuitous passenger is not covered in the insurance policy and claimant was gratuitous passenger travelling in the tempo means goods vehicle. The contention which has been raised in written statement by the insurance company is not enough, because, in written statement, number of contentions were raised by the party, but, it is relevant that how many contentions were argued before the Court by the party and if, out of 50 contentions raised in written statement, if, one or two contentions were argued before the Court, then, Court is required to consider only those contentions which were argued before the Court, not each contentions raised by the party in the written statement.
11. Similarly, after perusing the entire award, no such contention was raised by learned advocate of the insurance company before the Claims Tribunal except it is mentioned in written statement, meaning thereby that, at the time of hearing of claim petition, such contention may not be raised by the learned advocate of the insurance company or it may be waived by advocate of the insurance company. This view has taken by Apex Court in case of State of Maharashtra versus Ramdas Shrinivas Nayak and another reported in AIR 1982 SC 1249, the apex court has taken view that the Judge's record is conclusive, neither lawyer nor litigant may claim to contradict it except before the Judge himself but nowhere else. Relevant observations made by the apex court in para 4,5,6 and 7 of the said judgment are reproduced as under:
4.
When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled 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 to 'the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of makingthe concession as recorded in the judgment.
4-A. In R. v. Mellor (1858) 7 Cox CC 454 Martin B was reported to have said : "We must consider the statement of the learned judge as absolute verity and we ought to take. his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."
5. In King. Emperor v. Barendra Kumar Ghose, (1924) 28 Cal WN 170 : (AIR 1924 Cal 257) (FB), Page, J. said.
".............these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version."
6. In Sarat Chandra v. Bibhabati Debi (1921) 34 Cal LJ 302 : (AIR 1921 Cal 584), Sir Asutosh Mookherjee explained what had to be done :
"It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge, without delay and ask for rectification or review of the judgment".
7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else.??
12. Similarly, in the matter of Daman Singh and others v. State of Punjab and others, etc. reported in AIR 1985 SC 973, Five Judges' Bench of the Hon'ble Apex Court observed the same in Para 13 of the said judgment, which is quoted as under :
?S13.
The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but later, confine themselves in the course of arguments to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not. ???
13. Considering the above two judgments, the Apex Court has held the said view in case of Shankar K. Mandal and Others v. State of Bihar and Others reported in (2003) 9 SCC 519. The relevant observation is quoted as under :
?SHeld : It is not open for the appellants to take such stand before the Supreme Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands or a different stand was taken, the only course open to the appellant was to move the High Court. 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 the Supreme Court to the contrary. It is also not open to contend that a plea raised was not considered.??
14. In view of aforesaid observations made by Apex Court in three cases referred as above, this Court has perused the award, but, nowhere, such contention was raised by lawyer of the insurance company is found and therefore, the Tribunal has rightly examined it as the same was not raised by the advocate of the insurance company before the claims Tribunal. Therefore, contentions raised by learned advocate Mr. Mehta cannot be accepted and therefore, same is rejected.
15. Looking to the merits of the matter, according to my opinion, Tribunal has rightly assessed the income with future prospect Rs.1200/- per month and looking to the age of claimant 20 years, 16 multiplier has been rightly applied and 100% disability because of paralysis certificate by Doctor concerned vide Exh.29 and on that basis, Rs.2,33,400/- has been rightly awarded and Rs.4,500/- for medical treatment and medical bills, Rs.20,000/- for pain, shock and suffering and Rs.3,000/- for attendance charges, Rs.4,000/- for actual loss to income and Rs.4,000/- for special diet and transport allowance. Therefore, according to my opinion, Tribunal has rightly assessed the income and multiplier by awarding compensation in favour of claimant.
16. The Tribunal has not committed any error in passing the award in favour of claimant. The Tribunal has decided the matter on the basis of the record and reasoning given by Tribunal cannot consider to be a perverse. The Tribunal has rightly relied upon the decisions as referred in Para 12 which is quoted as under :
?S12. Ld. Advocates of the petitioner and opponent no.3 are heard. Ld. Advocate of the petitioner has relied upon the judgments in case of Mansukhlal Bhanjibhai Dabhi v. Pithalal Popatlal Hithadia reported in 1997 ACJ 813, Ashwin Kumar Mishra v. P. Muniam Babu ? 1999 ACJ 1105 & Bhanuben P. Joshi v. Kantilal B. Parmar ? 1993(1) GLR. ?S
17. Therefore, according to my opinion, Tribunal has rightly assessed the income and awarded compensation to the respondent claimant. For that, no error is committed which requires interference by this Court.
18. Therefore, there is no substance in the present appeal. Accordingly, present appeal is dismissed.
19. The insurance company has deposited Rs.25,000/- before this Court.
Therefore, registry is directed to transmit the same to the Claims Tribunal concerned immediately.
20. The insurance company appellant is directed to deposit the entire amount awarded together with cost and interest till the date of deposit before the Claims Tribunal concerned within a period of six weeks from the date of receiving the copy of the said order.
21. The accident is occurred on 6.6.1993, the appeal is filed in the year 2002 which remained pending for about five years for removing the office objection and thereafter, it has been moved. Meanwhile, claimant is died in the year 2001. Now, only Bhagwati is a minor daughter remains through her guardian and grand-father ? Ruplal Kaluji Taili. Learned advocate Mr. Brahmbhatt is appearing on behalf of respondent No.1/1 ? Bhagwati through her guardian and grand-father.
22. Therefore, it is directed to Claims Tribunal concerned to pay Rs.30,000/- to Ruplal Kaluji Taili ? grand-father of minor Bhagwati Prabhulal Taili by account payee cheque and rest of all the amount is to be invested in the name of minor Bhagwati Prabhulal Taili initially for a period of five years in any nationalised bank with a periodical renewal till minor Bhagwati attains the age of majority and meanwhile, the minor girl Bhagwati Taili is entitled to receive the periodical interest through her grand-father Ruplal Kaluji Taili from the said FDR and such FDR is to be remained with Nazir of the Claims Tribunal and it is directed to Claims Tribunal concerned to see that the amount which has been invested in the name of minor will not be misuse by grand-father in any manner and also see the interest of minor girl Bhagwati Taili till she becomes major.
23. Accordingly, First Appeal is dismissed.
24. As the First Appeal has been dismissed by this Court, no order is required to be passed in Civil Application and therefore, Civil Application is disposed of accordingly.
[H.K. RATHOD, J.] #Dave Top