Oriental Insurance Co Ltd vs Virbhadrasinh Dilipsinh Sunava

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

1. Both the appeals arise out of the same accident and common judgment and award passed by the tribunal, hence both the appeals are heard together and are disposed of by this common judgment and order.

2. Being aggrieved by the common judgment and award dated 7.4.2015 passed by the Motor Accident Claim Tribunal (Main) Narmada at Rajpipla in Motor Accident Claim Petitions No.120 and 178 of 2013 the Insurance Company has preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 ( hereinafter referred to as 'the Act' for sake of brevity).

3. The following facts emerge from the record of the appeals.

3.1 The accident occurred on 26.2.2013 between Chamariya Patiya to Bhiloda Patiya situated near Valiya, Dist. Narmada. As per the record, the accident took place between a Dumper bearing RTO Registration No.GJ­16­VV­ 8672 and a Maruti­Van bearing Registration No.GJ­16­AP­5901. The M.A.C.P No.120 of 2013 came to be filed by the driver of the Maruti­ Page 2 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT Van who was injured in the accident and M.A.C.P. No.178 of 2013 came to be filed by the persons traveling in the same vehicle. The claimants preferred the said application under Section 166 of the Act and claimed compensation of Rs.25 lakhs and Rs.10 lakhs respectively. The respondents - original claimants examined claimant ­ Vrajsinh at Ex.21, Virbhadrasinh at Ex.41, one witness Pravinsinh Ramsinh Yadav at Ex.46, another witness Ranjitsinh Motisinh Pilodariya at Ex.47 and over and above the same relied upon the documentary evidence such as FIR at Ex.59, panchnama of the scene of occurrence at Ex.60, driving license of the driver of the Maruti­Van, one of the claimants at Ex.62, disability certificate of Virbhadrasinh at Ex.75, case­memo of ambulance at Ex.79, disability certificate of Vanrajsinh at Ex.78 and medical bills of both the injured being Ex.80 to 83 and 85 to 88.

4. It was the case of the original claimant in M.A.C.P No.120 of 2013 that he was doing agriculture work and was earning Rs.7500/­ p.m. Relying upon the degree of the injuries received and more particularly the disability certificate at Ex.75 the Insurance Company as well as the original claimant agreed before Page 3 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT the tribunal that the disability of the body as a whole as far as Virbhadrasinh is 15% and the tribunal considered the income of the injured original claimant at Rs.4,000/­ p.m. and applied 18 multiplier and awarded a sum of Rs.2,16,000/­ as compensation under the head of future loss of income, Rs.24,000/­ as actual loss of income (for six months), Rs.75,000/­ as compensation under the head of pain, shock and suffering, Rs.50,000/­ as loss of amenities, Rs.75,000/­ under the head of special diet, attendance and transportation etc., and Rs.5 lakhs as medical expenses and thus awarded total compensation of Rs.9,40,000/­ to the original claimants of M.A.C.P. No.120 of 2013 alongwith 9% interest from the date of claim petition till its realization.

5. As far as claimant of M.A.C.P. No.178 of 2013 is concerned, the tribunal relied upon the oral deposition of the said claimant at Ex.21 and considered the income of the injured at Rs.4,000/­ p.m. and considered the disability of the body as a whole to the tune of 9% and applying multiplier of 15 awarded a sum of Rs.1,44,000/­ as compensation under the head of future loss of income and Rs.8,000/­ as compensation under the head of Page 4 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT actual loss of income (for two months) Rs.20,000/­ under the head of pain, shock and suffering, Rs.9,000/­ as medical expenses and Rs.20,000/­ under the head of special diet, attendance and transportation etc., and thus awarded a sum of Rs.2,10,000/­ as total compensation with interest at the rate of 9% p.a. from the date of filing of the claim petition till its realization.

6. Being aggrieved by the common judgment and award passed in Motor Accident Claim Petitions No.120 and 178 of 2013 the Insurance Company has preferred these appeals.

7. Heard Ms. Karuna V. Rahevar, the learned advocate for the appellant in both the appeals, Mr. R. E. Variava, learned advocate for the original claimant, Mr. Kashyap R. Joshi, learned advocate for the owner of the dumper and Mr. Nikunt K. Raval, learned advocate for other Insurance Company and have also perused original record and proceedings.

8. Ms. Rahevar, learned advocate appearing for the appellant has taken this Court through the impugned judgment and award and has contended as under :­ Page 5 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT 8.1 That the tribunal has wrongly come to the conclusion that the driver of the dumper was negligent to the tune of 90%. Relying upon the deposition of Savilal Kolibhai Vasava - driver of the dumper at Ex.54 and panchnama of scene of occurrence at Ex.60 Ms. Rahevar contended that the accident occurred because of the negligence of the driver of the Maruti­Van as he came from the other side i.e. from Netrang village on the main road in a full speed. Ms. Rahevar contended that the panchnama shows that the dumper was being driven in a slow speed and according to Ms. Rahevar the accident occurred only because of negligence on part of the driver of the Maruti­Van. Ms. Rahevar therefore submitted that the tribunal has committed an error and has misinterpreted the evidence on record in coming to the conclusion that the driver of the dumper was negligent to the extent of 90%.

9. Ms. Rahevar further contended that the tribunal has without any evidence on record has wrongly determined income of the injured claimants at Rs.4,000/­ p.m. Ms. Rahevar contended that even if the deposition of both the claimants is taken into consideration the income determined by the tribunal is much Page 6 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT excessive in nature which should be reduced. Ms. Rahevar also contended that as far as M.A.C.P. No.120 of 2013 is concerned, the tribunal has awarded excessive amount of Rs.75,000/­ as compensation under the head of special diet. Ms. Rahevar also contended that the tribunal has also awarded excessive amount under the head of pain, shock and suffering and loss of amenities. On the aforesaid grounds Ms. Rahevar contended that the appeals be allowed as prayed for and impugned judgment and award be modified.

10. Mr. Kashyap R. Joshi, learned advocate appearing for the owner of the dumper has adopted the arguments made by Ms. Rahevar. Mr. Nikunt K. Raval, learned advocate appearing for other Insurance Company i.e. the Insurance Company of Maruti­Van submitted that the Insurance Company of Maruti­Van has accepted the award and, therefore, this Court may pass appropriate order in appeal.

11. Mr. R. E. Variava, learned advocate appearing for the original claimants has opposed these appeals. Mr. Variava contended that the tribunal has rightly appreciated the evidence on record and after considering the manner in which the accident has occurred has Page 7 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT correctly come to the conclusion that Maruti­ Van though driven by the original claimant himself being a very small vehicle has been held to be negligent to the extent of 10% only. Mr. Variava contended that the tribunal has correctly appreciated the evidence on record. It was also further contended that no interference is called for. As far as income is concerned, Mr. Variava contended that even if the minimum wages standard is taken into consideration as prevailing on the date of accident the tribunal has on the contrary considered lesser income then such minimum wages standard and on that count also it was submitted by the learned advocate for the original claimant that both the appeals deserve to be dismissed.

12. No other or further submissions, contentions and or grounds are raised by learned advocates appearing for the parties.

13. Upon considering the submissions made it would be appropriate to refer to the panchnama at Ex.60. As per the panchnama, the impact of the accident was such that the Maruti­Van was completely damaged and pressed. The said fact clearly establishes the fact that the collusion was so severe Page 8 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020 C/FA/1565/2015 JUDGMENT that Maruti­Van almost collapsed because of the impact, though the learned advocate for the appellant has tried to rely upon the deposition of the driver of the dumper at Ex.54 Savilal Kolibhai Vasava. Upon reappreciating the evidence on record in form of the evidence of driver at Ex.54 as well as Ex.60 this Court finds that the tribunal has rightly appreciated the evidence on record and has correctly come to the conclusion that the driver of both the vehicles were composite negligent. The manner in which the accident has occurred as can be culled out from the evidence the tribunal has correctly assessed the same and the tribunal has committed no error in coming to the conclusion that the driver of the Maruti­Van being a smaller vehicle in comparison to a heavy huge vehicle like dumper is held to be negligent to the tune of 10% only. Upon reappreciating the evidence, more particularly considering the manner in which the accident has occurred this Court finds that the tribunal has committed no error and, therefore, the ground raised by the learned advocate for the appellant that the negligence is wrongly assessed by the tribunal deserves to be negatived.

C/FA/1565/2015 JUDGMENT

14. The second question which arises in these appeals is that in absence of any evidence, has tribunal committed any error in assessing the income of the respondent - original claimant at Rs.4,000/­ p.m.? Considering the evidence of original claimant at Ex.21 and Ex.78, it transpires that they were engaged in the vocation of agriculture. Though there is no documentary evidence to prove the extent of income as asserted by the original claimant before the tribunal, even if the minimum wages standard of an unskilled labourer is applied as stated on the date of accident the same would come to Rs.5100/­ p.m. as prevailing in the State of Gujarat. In light of the same, the income assessed by the tribunal at Rs.4,000/­ p.m. is proper and no interference is called for. As far as compensation awarded under the head of pain, shock and suffering and loss of amenities as well as special diet is concerned, it is a matter of record that the respondent - original claimant was aged 20/21 years on the date of accident and having incurred 15% permanent disability of the body as a whole in the facts of this case the tribunal has awarded just compensation which does not require any interference.

C/FA/1565/2015 JUDGMENT

15. Resultantly the appeals fail and are hereby dismissed. However, there shall be no order as to costs.

16. Registry shall remit back the original record and proceedings to the tribunal forthwith.

(R.M.CHHAYA, J) (VIRESHKUMAR B. MAYANI, J) K.K. SAIYED Page 11 of 11 Downloaded on : Thu Jan 09 00:21:18 IST 2020