Gujarat High Court
National Insurance Company vs Kokilaben Budhabhai Solanki on 14 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2896/2010 JUDGMENT DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2896 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 or any order made thereunder ?
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NATIONAL INSURANCE COMPANY
Versus
KOKILABEN BUDHABHAI SOLANKI & 6 other(s)
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Appearance:
DR RUSHANG MEHTA for MR DAKSHESH MEHTA(2430) for the
Appellant(s) No. 1
MR SHAILESH C SHARMA(3450) for the Defendant(s) No. 1,5
MR VISHRUT R JANI for RC JANI AND ASSOCIATE(6436) for the
Defendant(s) No. 1,3,4,5
RULE SERVED(64) for the Defendant(s) No. 2,6,7
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 14/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021
1. Feeling aggrieved and dissatisfied by the judgment and award dated 3.3.2010 passed by the Motor Accident Claims Tribunal (Aux), Anand in MACP no.6362/06, the appellant- insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
2. Heard Dr. Rushang Mehta, learned advocate for the appellant - insurance Company and Mr. Vishrut R. Jani, learned advocate for the original claimants.
3. Following facts emerge from the record of the appeal:-
3.1 It is the case of the original claimants that on 6.2.2004, the deceased - Budhabhai was returning back from Village Kantharia towards his Village and was standing inside the road waiting for the vehicle. It is further the case of the original claimants that the respondent no.1 herein who was driving the tractor bearing registration no. GJ-7 AA-6658 came from the other side. It is further the case of the respondents - original claimants that as the tractor was being driven in a rash and negligent manner and at an excessive speed that too on the wrong side of the road, the Page 2 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 same ran over the deceased - Budhabhai who was standing besides the road and Budhabhai succumbed to the same on the spot. An FIR was lodged with the jurisdictional Police Station and the present claim petition was filed by the original claimants - wife, 3 minor children and mother under Section 166 of the Act and claimed compensation of Rs.15,00,000/-
which was enhanced to Rs.25,00,000/-.
3.2 It is the case of the original claimants that the deceased was 35 years old on the date of the accident and was serving as Assistant Teacher in Primary School at Haldari and has monthly salary was Rs.10,023/-. Written statement was filed by the appellant, wherein it was contended that the driver of the tractor did not have valid license to drive the tractor. It was also specifically contended that the deceased was traveling as gratuitous passenger and was sitting on the mudguard as stated in the FIR and Panchnama and also denied the fact that the appellant - insurance Company would be liable to indemnify the original claimants. The wife of the deceased was examined at Exh.19 and the original claimants also relied upon the documentary evidences, such as, FIR Exh.32, Panchnama Exh.33, charge-sheet Exh.43, salary certificate at Exh.38 in particular. The Page 3 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 Tribunal came to the conclusion that the driver of the tractor was solely negligent and the Tribunal determined the income of the deceased at Rs.10,023/- as per the salary certificate and ultimately, after applying multiplier of 16, awarded a sum of Rs.19,20,000/- as compensation under the head of loss of dependency. Over and above that, the Tribunal was pleased to award Rs.32,000/- as compensation under conventional heads including funeral charges and awarded Rs.19,52,000/- with 9% interest per annum from the date of filing of the claim petition till its realization while partly allowing the claim petition. Being aggrieved by the same, the present appeal is filed.
4. Dr. Rushang Mehta, learned advocate for the appellant - insurance Company relying upon the version of the first informant in FIR at Exh.32, contended that the deceased was not standing on the road, but was traveling on the mudguard as gratuitous passenger. Dr. Mehta contended that the Tribunal has not considered the version in the FIR and even in the Panchnama while considering the aspect of liability. Dr. Mehta further contended that the salary certificate at Exh.38 is misread as pay slip by the Tribunal and therefore, the very basis of determining the income of the Page 4 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 deceased is erroneous. According to Dr. Mehta, the insurance Company is not liable at all. On both the grounds, it was contended that the Tribunal has committed an obvious error and contended that the appeal be allowed as prayed for.
5. Per contra, Mr. Vishrut R. Jani, learned advocate for the original claimants opposed the appeal. Mr. Jani contended that the Tribunal has rightly appreciated the evidence on record and has awarded just and adequate compensation, which does not require any interference by this Court in this appeal. Mr. Jani contended that as the Tribunal has granted just and adequate compensation, the original claimants have not preferred any appeal and have accepted the quantum of compensation as awarded by the Tribunal. Mr. Jani thus contended that the appeal, being merit-less, deserves to be dismissed.
6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.
7. Upon reappreciation of the evidence on record, it is true that in FIR at Exh.32, version of the first informant - Ravjibhai Salambhai Page 5 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 Solanki claimed to be an eye-witness has stated that the deceased was sitting on the mudguard. Similar version is found from the Panchnama. However, the fact remains that after the investigation, the police found that the deceased was actually standing on the side of the road, which is not denied by the appellant-insurance Company. The first informant-Ravjibhai Salambhai Solanki was very much available as an eye-witness of the incident. However, the insurance Company has not examined the said first informant. In addition to that, the respondent no.1 herein was driving the tractor-trolley and was in fact ordered to be examined as witness and even though the application filed by the appellant - insurance Company under Section 170 of the Act, the appellant - insurance Company has not examined the respondent no.1 who was present and in knowledge of the appellant-insurance Company. Upon reappreciation of the evidence on record, the charge-sheet Exh.43 which is the final report after the investigation, the said charge-sheet recites that the deceased was standing on the side of the road. Moreover, upon reappreciation of the evidence on record being Panchnama Exh.33 clearly transpires that the tractor went came on the wrong side. Upon reappreciation of the evidence on record, we Page 6 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 are of the opinion that the contentions raised by the appellant that the deceased was traveling on mudguard is not true and on the contrary, the final charge-sheet does indicate that the deceased was standing along side the road. There is no other evidence to show, except FIR that the deceased was sitting on the mudguard. Thus, the first contention raised by Dr. Mehta deserves to be negatived. Upon reappreciation of the evidence on record and more particularly, the certificate issued by the school at Exh.38 is considered to be the basis for determination of the monthly income of the deceased. Though feeble attempt was made by Dr. Mehta, learned advocate for the appellant - insurance Company that nobody was examined on behalf of the school, the same is of no avail to the appellant as they have not cross-examined the wife of the deceased who came to be examined before the Tribunal on the aspect of the certificate at Exh.38. Upon reappreciation of such evidence on record at Exh.38, it clearly appears that it was the Village school and was under direct supervision of the District Collector and the office of the District Education Officer. The certificate issued is signed by the Head Teacher of that school which clearly establishes the fact that it being a Government school, even the contention raised Page 7 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 by Dr. Mehta that no one was examined from the school deserves to be negatived. It is not denied that the deceased was an Assistant Teacher in the school at the Village school which is a Government school as observed and noted by the Tribunal. Even otherwise, we find that the Tribunal has awarded lesser amount under conventional heads. There are 5 dependents i.e. wife, 3 minor children and mother. Record indicates that the deceased was the only earning member. Upon reappreciation of the evidence on record, we do not find that the Tribunal has committed any error in relying upon the said certificate for determining the income.
8. We may add that as per the judgment of this Court of the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, New India Assurance Company Ltd. Vs. Somwati, reported in (2020) 9 SCC 644 and United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, on the contrary, the original claimants would be entitled to further amount of consortium. However, as the original claimants have not preferred any appeal, there is no question of granting any further compensation under the consortium to Page 8 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022 C/FA/2896/2010 JUDGMENT DATED: 14/12/2021 the original claimants.
9. Resultantly, the appeal fails on both the grounds raised by Dr. Mehta, learned advocate for the appellant and is hereby dismissed. However, there shall be no order as to costs in this appeal. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) Maulik Page 9 of 9 Downloaded on : Wed Jan 12 10:01:47 IST 2022