Gujarat High Court
Reliance General Insurance. Co. Ltd. vs Mumtazben Rasidbhai Alias Ahmed Rasid ... on 19 July, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/FA/2168/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2168 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
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 ?
==========================================================
RELIANCE GENERAL INSURANCE. CO. LTD.
Versus
MUMTAZBEN RASIDBHAI ALIAS AHMED RASID DESAI
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5,6,7
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 19/07/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Page 1 of 6 C/FA/2168/2018 JUDGMENT
1. This appeal is filed by the insurance company to challenge the judgment and award dated 12.02.2018 passed by the Motor Accident Claims Tribunal, Surat in MACP No.684 of 2012.
2. Brief facts are as under.
3. One Rasidbhai Desai was traveling on his motorcycle on 07.03.2012 on National High Way No.8 when near Siyalaj village, the motorcycle dashed by a dumper insured by the appellant insurance company causing fatal injuries to the motorcyclist. His dependents which included his widow, three children and aged parents therefore filed a Claim Petition seeking compensation of Rs.22 lakhs from the owner and insurer of the dumper.
4. The Claims Tribunal held that the accident occurred due to the sole negligence on the part of the driver of the dumper. The claimants had projected that the deceased was aged about 41 years who was serving as a driver in a transport company and was earning Rs.9,500/ per month inclusive of the allowances. The Tribunal believed the income of the deceased at Rs.8,000/, granted 25% increase for the Page 2 of 6 C/FA/2168/2018 JUDGMENT future rise, deducted 1/4th for the personal expenditure of the deceased and applied the prescribed multiplier of 14 to work out the loss of dependency benefit at Rs.12,60,000/, to which, the Tribunal added a sum of Rs.70,000/ towards conventional heads.
5. This award the insurance company has challenged on the ground of negligence as well as quantum of compensation. With respect to the nature of accident, counsel for the insurance company submitted that the dumper collided with a motorcycle from the left side when the motorcyclist suddenly left his lane and came to the right hand side to avoid a clash with a stationary vehicle parked on the side of the road. He therefore submitted that at least, part of the negligence should have been attached to the motorcyclist. He also argued that since though compulsorily the motorcyclist was not wearing a helmet, relying on the judgment of the Division Bench of Madras High Court in case of Branch Manager, Oriental Insurance Co. Ltd. v. Indirani and Ors. reported in 2018 ACJ 110, he submitted that this would be a valid ground for holding the deceased Page 3 of 6 C/FA/2168/2018 JUDGMENT negligent in causing the accident. With respect to the compensation, counsel submitted that there was no evidence of the income of the deceased of Rs.8,000/ per month. The Tribunal awarded compensation which was excessive.
6. We did not find any merits in this appeal. Perusal of the judgment of the Claims Tribunal would show that the dumper had dashed the motorcyclist causing serious injuries. The blood spots were on the left front wheel of the dumper. In the panchnama of the scene of incident, it was shown that the dumper was at about 500 meters of distance from the accident. Very clearly the dumper driver was driving the vehicle at an excessive speed. There is no other explanation why the dumper should have stopped half a kilometer after the accident. Further, the very fact that the left front wheel of the dumper had come in contact with the motorcycle, would show that the driver was in the process of overtaking motorcyclist. It was his duty to take all precautions to avoid the accident. It is true that wearing of helmet is compulsory as per the rules. However, the question in the present case is, did the fact of motorcyclist Page 4 of 6 C/FA/2168/2018 JUDGMENT not wearing the helmet caused or contributed to the accident? Very obviously, the answer is in the negative. If there was something on record to suggest that with the protection of helmet, the injuries on the head could have been lessened and therefore, the death could have been avoided, we could still have considered the contention of the insurance company. However, in the present case, the cause of death is hemorrhagic shock due to bleeding caused by injuries over the entire body. Very clearly the death was not due to head injury alone. We do not accept the contention that irrespective of the nature of accident and irrespective of the nature of injuries, mere fact of the injured or the deceased not wearing the helmet should be considered as a matter of contributory negligence.
7. In the context of computation of compensation, we see no possibility of reduction. The assessment of the income is quite reasonable. Such assessment is supported by the witness of the claimants one Azhar Mahommad. Equally importantly, there were as many as six dependents. The deduction for personal expenditure, if at all, could have been lesser. Page 5 of 6
C/FA/2168/2018 JUDGMENT
8. In the result, First Appeal is dismissed along with Civil Application.
(AKIL KURESHI, J) (B.N. KARIA, J) ANKIT SHAH Page 6 of 6