Gujarat High Court
New India Assurance Company Lt vs Bhanuben Pragneshkumar Soni on 18 April, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2443 of 2008
With
R/FIRST APPEAL NO. 2444 of 2008
With
R/FIRST APPEAL NO. 2445 of 2008
With
R/FIRST APPEAL NO. 3096 of 2008
With
R/FIRST APPEAL NO. 3097 of 2008
With
R/FIRST APPEAL NO. 3098 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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NEW INDIA ASSURANCE COMPANY LT
Versus
BHANUBEN PRAGNESHKUMAR SONI & 5 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the New India Assurance Company
Limited
MS MAITRI P PATEL(8126) for the original claimants
MR VIBHUTI NANAVATI(513) for the Oriental Insurance Company Limited
RULE NOT RECD BACK for the Defendant(s) No. 4,5
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C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/04/2022
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common judgment and award dated 20.12.2007 passed by the Motor Accident Claims Tribunal (Aux), City Civil Court no.12, Ahmedabad in MACP nos.625, 622 and 623/02, the insurance Company i.e. New India Assurance Company Limited has filed First Appeal nos.2443/08, 2444/08 and 2445/08 and the original claimants of the Motor Accident Claim Petition nos.625/02, 623/02 and 622/02 have preferred First Appeal nos.3096/08, 3097/08 and 3098/08 respectively under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
2. Following facts emerge from the record of the appeal:-
2.1 That on 24.5.2002, the original claimant no.1-
Bhanuben along with her husband, her son and daughter were going from Ahmedabad to Abu Road in Maruti Van bearing registration No.GJ-1 HH- 8341, which was owned by deceased himself. It Page 2 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 was the case of the original claimants that deceased - Pragneshkumar was driving the said Maruti Van on the left side of the road with moderate speed. It was the case of the original claimants that when they were passing near Hebatpura Village at about 10.00 AM, the offending Motor Truck bearing registration no. HR-44 GA-0293 came with an excessive speed, in rash and negligent manner, endangering human life, dashed with the Maruti Van, due to which, all persons traveling in the Maruti Van sustained severe injuries and the deceased died on the spot and others were seriously injured and were admitted in the hospital. It was the case of the original claimants that deceased initially joined as Technician in ONGC and thereafter, he was promoted as Executive Engineer. An FIR was lodged with the jurisdictional police station. The original claimants preferred claim petition under Section 166 of the Act. Oral as well as documentary evidence were led by the original claimants. The Tribunal, after appreciating the manner in which the accident occurred, came to the conclusion that the driver of the Maruti Van involved in the accident was negligent to the extent of 10% and partly allowed the claim petitions as under:-
Page 3 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 MACP No. Amount of compensation 622 of 2002 Rs.4,56,000/-
623 of 2002 Rs.3,95,000/-
625 of 2002 Rs.30,15,000/-
2.2 The aforesaid award carried interest at the rate of 7% per annum from the date of filing of the claim petition till its realization.
Being aggrieved and dissatisfied with the same, the insurance Company i.e. New India Assurance Company Limited has filed First Appeal nos.2443/08, 2444/08 and 2445/08 and the original claimants have preferred First Appeal nos.3096/08, 3097/08 and 3098/08.
3. Heard Mr. Palak Thakkar, learned advocate for the New India Assurance Company Limited, Ms. Maitri Patel, learned advocate for the original claimants and Mr. Vibhuti Nanavati, learned advocate for the Oriental Insurance Company Limited in these appeals. The Tribunal has considered the evidence on record and by common judgment and award dated 20.12.2007 was pleased to partly allow the claim petitions and hence, all the appeals were heard together and are disposed of by this common judgment and order.
4. Mr. Palak Thakkar, learned advocate for the insurance Company i.e. New India Assurance Page 4 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 Company Limited has contended that in all the 3 cases, owner of Maruti Van was not impleaded in the claim petitions before the Tribunal. It was contended by Mr. Thakkar that in absence of owner of Maruti Van, the insurance Company i.e. New India Assurance Company Limited cannot be held to be liable. Mr. Thakkar has relied upon the Division Bench judgment of this Court in the case of the Oriental Fire and General Insurance Company Vs. Aminbhai Pirmohamad Master & Ors., reported in 1986 GLH 463 to buttress his contention. It was thus contended by Mr. Thakkar that the appeals filed by the insurance Company i.e. New India Assurance Company Limited may be allowed.
5. Per contra, Ms. Maitri Patel, learned advocate for the original claimants has submitted that the Tribunal has come to the conclusion that it is a fit case of composite negligence and even if this Court finds that the insurance Company i.e. New India Assurance Company Limited is not liable to satisfy the award to the extent of 10% as per the negligence determined and fixed by the Tribunal, the other respondent-insurance Company i.e. Oriental Insurance Company Limited i.e. insurance Company of the truck is liable to satisfy the award.
Page 5 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 5.1 Ms. Patel, referring to First Appeal no.2444/08 being Motor Accident Claim Petition no. 622/02, contended that the Tribunal has committed an error in determining the income of the injured - original claimant who was 17 years old on the date of the accident. Ms. Patel further contended that the injured- claimant was studying in First Year B. Com. and had a bright future. Ms. Patel further contended that even if minimum wages payable to the skilled worker is taken into consideration, the income of the injured- claimant would come to Rs.4,846/-. Ms. Patel further contended that the Tribunal has committed a gross error in not considering any prospective income even though the injuries are such that the injured - claimant has become completely disabled. Ms. Patel further contended that the Tribunal has not appreciated the medical evidence on record and has committed an error in considering permanent disability of the body as a whole to the extent of 80% only. Ms. Patel, relying upon the medical evidence on record, contended that the injured - claimant is completely depends on others and is bedridden, that too, from the tender age of 17 years and therefore, this Court may consider 100% disability of the body as a whole. It was further contended that the Tribunal has also committed an error in Page 6 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 applying multiplier of 15 which, even according to the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, should be 18 years. It was also contended that the Tribunal has committed an error in granting a meager amount of Rs.75,000/- as compensation under the head of pain, shock and suffering, which should be enhanced to Rs.10,00,000/-. It was contended by Ms. Patel that the Tribunal has also committed an error in granting compensation of Rs.80,000/- only under the head of attendance charges, special diet and transportation, which deserves to be enhanced to Rs.2,00,000/-. It was also contended that the Tribunal has committed an error in not granting any compensation under the head of loss of amenities of life and loss of marriage prospects. Ms. Patel further contended that considering the Panchnama at Exh.110 and the manner in which the accident has occurred and so also the fact that the charge-sheet was filed against the driver of the truck, the Tribunal has also committed an error in considering that it is a case of composite negligence. Ms. Patel also contended that the evidence clearly speaks of the fact that the accident occurred only because of the Page 7 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 sheer negligence of the driver of the truck and therefore, the driver of the truck deserves to be held to be solely negligent. On the aforesaid grounds, it was contended by Ms. Patel that the award passed by the Tribunal in Motor Accident Claim Petition no.622/02 deserves to be modified.
5.2 Ms. Patel, referring to First Appeal no.2445/08 being Motor Accident Claim Petition no.623/02, contended that the Tribunal has committed an error in determining the income of the injured-original claimant at Rs.11,000/-. Ms. Patel further contended that the original claimant was 43 years old on the date of the accident and was working in Bapunagar General Hospital and her salary was Rs.11,810/-. Ms. Patel further contended that the Tribunal has also committed an error in not granting any prospective income relying upon the judgment of the Hon'ble Apex Court in the case of Pappu Deo Yadav Vs. Naresh Kumar & Ors., rendered in Civil Appeal no.2567/20. It was contended by Ms. Patel that considering the injuries sustained by the original claimant, she would be entitled to prospective income. It was contended by Ms. Patel that the Tribunal has committed an error in applying multiplier of 5 and that the appropriate multiplier would be of 14 on the ground that Page 8 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 the salary of the original claimant has increased. It was therefore contended by Ms. Patel that the Tribunal has committed an error in considering the compensation under the head of future loss of income. Referring to Exhs.73 and 74 of the paper book, it was contended by Ms. Patel that the Tribunal has also committed an error in considering the period for actual loss of income. Relying upon the said piece of evidence, namely, Exhs.73, 74 and 75, it was contended by Ms. Patel that the said evidence clearly establishes the fact that the original claimant had remained on leave for a period of 621 days because of the injuries sustained in the accident and therefore, she would be entitled to actual loss of income for 20 months. Ms. Patel also contended that the Tribunal has committed an error in granting a meager amount of Rs.21,000/- under the head of pain, shock and suffering which is in total disregard with the injuries sustained and the extensive treatment which the original claimant had to take after the accident because of the injuries sustained in the accident. It was also contended by Ms. Patel that similarly, the Tribunal has granted a meager amount of Rs.20,000/- as compensation under the head of attendance charges, special diet and transportation, which deserves to be enhanced. Ms. Patel further contended that Page 9 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 considering the Panchnama at Exh.110 and the manner in which the accident has occurred and so also the fact that the charge-sheet was filed against the driver of the truck, the Tribunal has also committed an error in considering that it is a case of composite negligence. Ms. Patel also contended that the evidence clearly speaks of the fact that the accident occurred only because of the sheer negligence of the driver of the truck and therefore, the driver of the truck deserves to be held to be solely negligent. On the aforesaid grounds, it was contended by Ms. Patel that the award passed by the Tribunal in Motor Accident Claim Petition no.623/02 deserves to be modified.
5.3 Referring to the award passed by the Tribunal in Motor Accident Claim Petition no.625/02 being First Appeal no.2443/08, it was contended by Ms. Patel that the Tribunal has committed an error in determining the income of the deceased. Ms. Patel further contended that the Tribunal has also committed an error in not granting any prospective income. It was contended by Ms. Patel that considering the fact that the deceased died on the spot, the original claimants would be entitled to prospective income. Ms. Patel relying upon the judgment of the Hon'ble Apex Court in the case Page 10 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 and has submitted that the Tribunal has wrongly awarded compensation of Rs.38,000/- under the conventional heads, which may suitably be modified. Further, relying upon the judgments 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, it was contended by Ms. Patel that the original claimants would be entitled to further compensation under the head of consortium and filial consortium as well as loss of estate and funeral expenses. Ms. Patel also contended that the Tribunal has not granted any compensation under the head of pain, shock and suffering. Ms. Patel further contended that considering the Panchnama at Exh.110 and the manner in which the accident has occurred and so also the fact that the charge-sheet was filed against the driver of the truck, the Tribunal has also committed an error in considering that it is a case of composite negligence. Ms. Patel also contended that the evidence clearly speaks of the fact that the Page 11 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 accident occurred only because of the sheer negligence of the driver of the truck and therefore, the driver of the truck deserves to be held to be solely negligent. On the aforesaid grounds, it was contended by Ms. Patel that the award passed by the Tribunal in Motor Accident Claim Petition no.625/02 deserves to be modified.
6. Mr. Vibhuti Nanavati, learned advocate for the Oriental Insurance Company Limited has opposed all the appeals. It was submitted by Mr. Nanavati that the Tribunal has committed no error in coming to the conclusion that the driver of both the truck and Maruti Van are liable to the extent of 90:10 and no error is committed by the Tribunal. Mr. Nanavati further submitted that as far as quantum is concerned, the Tribunal has awarded just and adequate compensation and no modification is required. Mr. Nanavati referring to all the 3 appeals filed by the original claimants submitted that in case of both the injured claimants, the Tribunal has rightly considered the disability and has also applied multiplier of 5. In facts of this case, it was contended by Mr. Nanavati that it is a matter of fact that the injured - claimant in First Appeal no.2445/08 is working in Bapunagar General Hospital and her salary has increased and as Page 12 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 such there is no loss of income. According to Mr. Nanavati, learned advocate for the Oriental Insurance Company Limited, the appeals filed by the insurance Company i.e. New India Assurance Company Limited as well as the original claimants are merit-less and all the appeals deserve to be dismissed.
7. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.
8. In all these 6 appeals, following questions arise for consideration of this Court:-
(i) Whether the Tribunal has committed an error in coming to the conclusion that the insurance Company of Maruti Van would also be liable to the extent of 10% in absence of owner of Maruti Van being made party to the claim petition or not?
(ii) Whether the Tribunal has committed an error in coming to the conclusion that the accident was occurred because of the negligence of both the drivers of the Maruti Van and the truck in the ratio of 10:90 or not?Page 13 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022
C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
(iii)Whether the original claimants are entitled to any enhanced compensation or not in 3 appeals filed by the original claimants?
9. Considering the sole ground raised and on perusal of the record and proceedings of the case, it is a matter of fact that the owner of the Maruti Van was not impleaded as a party and in absence of the owner of Maruti Van, the insurance Company i.e. New India Assurance Company Limited cannot be held to be liable. We are fortified in our view that the judgment of the Division Bench of this Court in the case of Oriental Fire and General Insurance Company Vs. Aminbhai Pirmohamad Master & Ors., reported in 1986 GLH 463, wherein the Division Bench has held thus:-
"7. The grievance of the insurance Company as the insurer of the motorcycle is that the owner of the motorcycle was not made a party to the petition and therefore, no award could have been passed against the insurance Company. It is a fact that the owner of the motorcycle Dwarkadas Bhagwanbhai who was himself driving the said vehicle was not made a party to Claim Petition NO.9 of 1976. It is clear on the face of it that no award could have been passed against the insurance Company in absence of the owner because the owner is to be indemnified against the award which is likely to be passed against the Page 14 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 owner. Mr. B.J. Shethna, appearing for the respondents submitted that the insurance Company had not taken up any such contention either in the written statement or at any stage before the Tribunal and therefore, the insurance Company is not entitled to raise any such contention by filing the appeal. He also submitted that such a technical contention should not be permitted to be raised on behalf of the insurance Company in the appeal when such a contention was not raised before the Tribunal.
8. xxx xxx xxx
9. Mr. Shethna also drew our attention to a decision of the Himachal Pradesh High Court reported in the case of Mangal Chand v. The Forest Department through Divisional Forest Officer, Nichar, ILR 1984 Himachal Pradesh 259. The learned Chief Justice of the Himachal Pradesh High Court has observed therein that tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might result in injustice by a meritorious case being thrown out without trial, condonation of delay would at the highest result in decision of the case on merits. We fail to understand how this decision of the Himachal Pradesh High Court is of any assistance in the present case.
The contention which is raised by filing this appeal cannot be said to be of a technical nature. The insurance Company has insured the owner of the motorcycle. By insuring the owner of the motorcycle, the Page 15 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 insurance Company has agreed to indemnify whatever compensation he might have to pay for the injuries caused by the vehicle in question. The question of the insurance Company paying the amount of compensation will arise only if and when there is some award passed against the owner of the vehicle. When the owner of the vehicle is not made a party, the question of passing any award against the insurance Company does not arise. No award could have been passed and the Tribunal had even no jurisdiction to pass such an award against the insurance Company in absence of the owner. The question which is raised by filing the appeal thus goes to the very root of the matter. It is true that the insurance Company did not raise any such contention either in the written statement or at any stage before the Tribunal, but it cannot be said that the insurance Company in any way made any concession that it was liable to pay. The question of waiver also does not arise because this is a pure question of law which again goes to the very root or the matter."
10. Thus, the insurance Company i.e. New India Assurance Company Limited cannot be held liable to indemnify and satisfy the award. Secondly, at this juncture, it would also be appropriate to refer to the evidence of Bhanuben at Exh.46 and so also the observations made by the Tribunal in Paragraph 21 of the impugned judgment and award. Even considering the deposition of Khusboo at Page 16 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 Exh.49, the manner in which the accident has occurred and as observed by the Tribunal, the insurance Company has not examined any driver as witness. Even while coming to the conclusion that it is a case of contributory negligence making driver of Maruti Van negligent to the extent of 10%, we find that no reason are given by the Tribunal. Upon re- appreciation of the evidence on record, more particularly, the Panchnama at Exh.110, depositions of Bhanuben at Exh.46 and Khusboo at Exh.49, the accident occurred only because of sole negligence of driver of the Truck. The record and proceedings also shows that the charge-sheet is filed against the driver of the Truck. Considering this piece of evidence, we are of the considered opinion that driver of the Truck was solely negligent. Having come to the aforesaid conclusion therefore, we allow the appeals and we hold that the respondent no.3-insurance Company of the Truck being registration No. HR-44 GA-293 i.e. the Oriental Insurance Company Limited involved in the accident is liable to satisfy the award.
11. As far as First Appeal no.2443/08 is concerned, the same relates to Pragneshkumar Kantilal Soni who died in the accident. Record indicates that the deceased was working as Superintending Engineer (Production) with Page 17 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 ONGC, Ahmedabad. The salary certificate at Exh.100 indicates that his gross salary was Rs.45,069.57. It also further says that the income-tax deducted from salary was Rs.8,000/- and other deductions of allowances and professional tax would come to Rs.935/-. Following the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the income of the deceased would mean gross salary minus tax, which comes to Rs.36,065/-. As the age of the deceased was 41 years old on the date of the accident, following the judgment of the Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), the original claimants would be entitled to increase in income by way of prospective income to the tune of 30%. The said fact is also proved by the original claimants by examining one Harjitsinh at Exh.97 who was working as Finance Department of ONGC. Considering the number of 3 dependents, one-third amount is required to be deducted towards personal expenses and appropriate multiplier would be that of 14 and thus, the future loss of dependency would be as under:-
Rs.36,065/- Income per month + Rs.10,819/- 30% prospective income = Rs.46,884/- Income per month Page 18 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
- Rs.15,628/- One-third deduction = Rs.31,256/- Income per month X 12 Yearly Rs.3,75,072/- Yearly income X 14 Multiplier Rs.52,51,008/- Compensation towards future loss of dependency
12. Over and above the same, following the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the original claimants would be entitled to compensation of Rs.30,000/- under conventional heads including funeral expenses and considering the ratio laid down in the cases of Magma General Insurance Company Limited (supra), Satinder Kaur @ Satwinder Kaur (supra) and Somwati (supra), all the 3 original claimants would be entitled to compensation of Rs.40,000/- each under the head of loss of consortium and thus, the original claimants would be entitled to compensation as under:-
Rs.52,51,008/- Compensation towards future loss of dependency + Rs.1,20,000/- Loss of consortium (Rs.40,000/- X 3) + Rs.30,000/- Conventional heads including funeral expenses = Rs.54,01,008/- Total compensation Page 19 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
13. As far as First Appeal no.2444/08 is concerned, the same relates to the original claimant who was injured in the accident and has almost become bedridden. Upon reappreciating the disability certificate at Exh.107 as well as the deposition of Dr. Haresh Shah at Exh.88, it clearly appears that the injuries sustained by the injured-claimant are of such a nature that he has become totally bedridden, that too, at the tender age of 17 years. Upon reappreciation of the evidence at Exh.107, the disability certificate issued by Dr. Haresh Shah and the degree of grievous injuries which are sustained by the injured-claimant, we deem it fit to hold that the injured - claimant suffers from 100% permanent disability of the body as a whole. The evidence on record indicates that the injured-claimant was 17 years old and was studying in First Year of B. Com. Though there is no evidence and we feel that there cannot be any evidence for a claimant aged 17 years as far as the income is concerned, however, considering the bright future of the injured-claimant, income determined by the Tribunal at Rs.1,250/- per month is much less and the same deserves to be enhanced based upon at least minimum wages standard which is payable to the skilled workman, which comes to Rs.4,000/- per month.
Page 20 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 Considering the judgment of the Hon'ble Apex Court in the case of Kajal Vs. Jagdish Chand & Ors., reported in (2020) 4 SCC 413, the original claimant would be entitled to prospective income to the extent of 40% and the appropriate multiplier would be that of 18 and not 15 as granted by the Tribunal. Having come to the aforesaid conclusion therefore, the injured-claimant would be entitled to compensation under the head of future loss of income as under:-
Rs.4,000/- Income per month + Rs.1,600/- 40% prospective income = Rs.5,600/- Income per month X 100% Disability = Rs.5,600/- Income per month X 12 Yearly = Rs.67,200/- Yearly income X 18 Multiplier = Rs.12,09,600/- Compensation towards future loss of income
14. Upon reappreciation of the evidence on record and more particularly, the deposition of Dr. Haresh Shah as well as the deposition of the injured - claimant himself as well as the documentary evidence of the treatment taken at various hospitals by the injured - claimant, the Tribunal has awarded a meager amount under the head of pain, shock and suffering as well Page 21 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 as attendance charges, special diet and transportation. Upon reappreciation of such evidence on record, we deem it fit to quantify the compensation under the head of pain, shock and suffering at Rs.6,00,000/- and attendance charges, special diet and transportation at Rs.2,00,000/-. The evidence clearly show that the injured-claimant has sustained serious injuries which has resulted into 100% permanent disability of the body as a whole and it was almost unbelievable without any support, that too, at the tender age of 17, the injured-claimant has lost many amenities of life and therefore, the injured-claimant is entitled to compensation of Rs.1,00,000/- as loss of amenities of life. The injuries which are on record clearly speaks of the fact that because of the injuries, the injured-claimant has completely lost marriage prospects and the injured-claimant is also entitled to compensation of Rs.3,00,000/- under the head of loss of marriage prospects. The Tribunal has rightly granted medical bills of Rs.1,21,000/-. Upon reappreciation of the evidence on record and considering the state of health of the injured-claimant, we are of the opinion that the Tribunal has committed an error in not considering any compensation for future medical treatment and upon reappreciation of such evidence on record, we Page 22 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 deem it fit to quantify the same at Rs.5,00,000/-. However, such amount of compensation of Rs.5,00,000/- would not bear any interest following the ratio laid down by the Hon'ble Apex Court in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors., reported in (1995) 1 SCC 551. The Hon'ble Apex Court has observed thus:-
"18. So far the direction of the High Court regarding payment of interest at the rate of 6% over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount."
15. Even considering the ratio laid down by the Hon'ble Apex Court in the case of Master Ayush Vs. The Branch Manager, Reliance General Insurance Co. Ltd. & Anr. rendered in Civil Appeal nos. 2205-2206 of 2022 as well as the aforesaid quantification of award, even in case of no evidence, in opinion of this Court, Page 23 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 would constitute just and adequate compensation. Having come to the aforesaid conclusion therefore, the injured-claimant is entitled to total compensation as under:-
= Rs.12,09,600/- Compensation towards future loss of income + Rs.6,00,000/- Pain, shock and suffering + Rs.2,00,000/- Attendance charges, special diet and transportation + Rs.1,00,000/- Loss of amenities of life + Rs.3,00,000/- Loss of marriage prospects + Rs.1,21,000/- Medical bills + Rs.5,00,000/- Future medical treatment = Rs.30,30,600/- Total compensation
16. As far as First Appeal no.2445/08 is concerned, upon reappreciating the evidence on record, it is a matter of fact that the injured - claimant is working with Bapunagar General Hospital and her salary has increased. However, upon reappreciation of the evidence on record, the income of the injured-claimant is Rs.11,810/-. Following the ratio laid down by the Hon'ble Apex Court in the case of Pappu Deo Yadav (supra) and considering the gravity of injuries sustained, the injured-claimant would be entitled to prospective income to the extent of 30% as her age was 43 years old on the date of the accident. Though it was argued by Mr. Thakkar, learned advocate for the New India Assurance Company Limited and upon Page 24 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 reappreciation of the evidence on record i.e. Exh.106, the disability certificate as well as the deposition of Dr. Haresh Shah at Exh.88, the Tribunal has committed no error in coming to the conclusion that the injured-claimant has acquired 30% permanent disability of the body as a whole. As rightly considered by the Tribunal, the injured-claimant has continued her services and there is an increase in such salary/income and the Tribunal, following the ratio laid down by the Division Bench of this Court in the case of Rameshbhai Ramnikbhai Vyas Vs. Ismail Ibrahim and Suleman Ibrahim, rendered in First Appeal no.705 of 2012 dated 11.4.2012, has rightly applied multiplier of
5. Having come to the aforesaid conclusion therefore, the injured-claimant would be entitled to compensation under the head of future loss of income as under:-
Rs.11,810/- Income per month + Rs.3,543/- 30% prospective income = Rs.15,353/- Income per month X 12 Yearly = Rs.1,84,236/- Yearly income X 5 Multiplier = Rs.9,21,180/- Compensation towards future loss of income
- Rs.6,44,826/- 30% permanent disability of the body as a whole = Rs.2,76,354/- Compensation towards future loss of income Page 25 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022
17. Upon reappreciation of the evidence on record at Exhs.73, 74 and 75, it clearly transpires that the injured-claimant had to take leave for 621 days in toto and therefore, she would be entitled to actual loss of income for 20 months, which comes to Rs.2,36,200/-
(Rs.11,810/- X 20). Similarly, she would be entitled to entitled to compensation of Rs.2,00,000/- as pain, shock and suffering as she had to undergo 7 fractures and other serious injuries and attendance charges, special diet and transportation in such circumstances is quantified at Rs.50,000/-. Having come to the aforesaid conclusion therefore, the injured - claimant would be entitled to total compensation as under:-
Rs.2,76,354/- Compensation towards future loss of income + Rs.2,36,200/- Actual loss of income (Rs.11,810/- X 20) + Rs.2,00,000/- Pain, shock and suffering + Rs.50,000/- Attendance charges, special diet and transportation + Rs.5,500/- Medical Bills = Rs.7,68,054/- Total compensation
18. Upon considering the aspect of negligence, it would be appropriate to reappreciate the evidence on record which exhibits the manner in which the accident has occurred. Firstly, it deserves to be noted that the charge-sheet Page 26 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 is filed against the Truck driver. Upon reappreciation of the evidence on record, the manner in which the accident has occurred and the Panchnama at Exh.110 and the damage caused to the Maruti Van and the position of the Truck, it clearly indicates that the accident occurred only because of sole negligence of the driver of the Truck. In addition to that, it also deserves to be appreciated that the insurance Company of the Truck has not examined the driver of the Truck and upon reappreciation of the evidence on record, the accident has occurred only because of the sole negligence of the driver of the Truck.
19. The questions therefore raised in these appeals are answered accordingly.
20. In light of the findings arrived at, the insurance Company of the Truck i.e. the Oriental Insurance Company Limited would alone be liable to satisfy the award. Thus, the appeals filed by the insurance Company of the Maruti Van i.e. the New India Assurance Company Limited being First Appeal nos.
2443/08, 2444/08 and 2445/08 are allowed and the insurance Company i.e. New India Assurance Company Limited stands exonerated even on the ground of negligence. The amount so deposited by the New India Assurance Company Limited Page 27 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022 C/FA/2443/2008 JUDGMENT DATED: 18/04/2022 shall be returned back to the said insurance Company. The Tribunal is directed to refund the said amount.
21. First Appeal nos.3096/08, 3097/08 and 3098/08 are partly allowed and the impugned judgment and award is modified to the aforesaid extent. The insurance Company of the Truck i.e. the Oriental Insurance Company Limited shall deposit the additional amount of compensation as awarded in each of the claim petitions with the Tribunal within a period of eight weeks from the date of receipt of this judgment and order. However, such additional amount shall bear interest only at the rate of 6% per annum from the date of filling of the claim petitions and following the judgment in the case of R.D. Hattangadi (supra), no interest is granted on the amount awarded as future medical treatment in First Appeal no.2444/08, as observed above. 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) (HEMANT M. PRACHCHHAK,J) Maulik Page 28 of 28 Downloaded on : Mon Apr 18 21:44:46 IST 2022