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FA/655/2011 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 655 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
UNITED
INDIA INSURANCE CO LTD, REGISTERED OFFICE AT CHENNAI - Appellant(s)
Versus
JIVANBHAI
KANABHAI PATEL & 2 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
MR MTM HAKIM for Defendant(s) : 1,
None for
Defendant(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 13/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Draft
amendment granted.
The
short facts of the case are that on 21.10.2002, when the claimant
was going on the scooter bearing Registration No.GJ-6-F-6626 towards
Gorva and at that time, one Tanker bearing Registration No.GTK-4053
dashed with the scooter and the wheel of the Tanker had passed over
the leg of the deceased and he sustained serious injuries. As a
result thereof, one leg was to be amputated and other leg sustained
serious damage and disability. The claim petition was filed
initially for a compensation of Rs.10 lac, which ultimately came to
be enhanced to Rs.40 lac as per the amendment granted by the
Tribunal. The tribunal after considering the evidence on record
awarded the compensation of Rs.19,67,000/- with the interest at the
rate of 7.5% per annum. It is under these circumstances, the
present appeal before this Court.
We
have heard Mr.Rajni Mehta, learned Counsel for the appellant and
Mr.Hakim, learned Counsel appearing for the original claimant by
caveat.
The
first contention raised by the learned Counsel for the appellant is
that after the award was passed by the Tribunal, in the
investigation through some private agency, the appellant has found
that the original claimant was also having insurance as per the
Company’s Group Insurance Policy with New India Insurance Company
Limited and on account of the injury, the said Company i.e.,
Employer, M/s.Gujarat State Financial Corporation Limited had paid
the amount of Rs.8,96,970/- to the original claimant and it was
submitted that under these circumstances, the said amount of
Rs.8,96,970/- paid by the employer of the claimant to him is
required to be deducted from the compensation awarded by the
Tribunal. The learned Counsel also submitted that to bring on
record the aforesaid evidence, Civil Application No.4378 of 2011 has
been filed for additional evidence in the present proceedings. It
was submitted that in view of the decision of the Apex Court in the
case of Helen C. Rebello and Ors. v. Maharashtra State
Road Transport Corporation and Anr., reported in (1999) 1 SCC 90,
since the said amount has not been deducted, which is paid by the
employer, it can be said that the Tribunal has committed error,
which may be considered in the present appeal. The learned Counsel
further relied upon the subsequent decision of the Apex Court in
case of United India Insurance Co. Ltd. v. Patricia Jean
Mahajan and Ors., reported in (2002) 6 SCC, 281,
wherein as per him, the Apex Court has reiterated the same principle
as was laid down by it in the earlier decision in case of Helen
Rebello (Supra). It was
submitted that, therefore, this Court may interfere.
We
may record that one of the similar contentions came to be raised for
deduction of the amount of compensation on the ground of
availability of the pension on account of the death of the deceased
in First Appeal No.1083 of 2011 decided on 4.4.2011 and this Court
in the aforesaid matter considered and negatived the said contention
by making observations at paragraphs 7 and 8 as under:-
“7. As
observed earlier, the Tribunal has taken
note of the loss being suffered by the family of the deceased on
account of the death of the deceased which includes the pay
revision, loss of pension, provident fund as well as gratuity which
comes to about Rs 8 lakhs. If the pay revision is considered, the
dependency benefit would be double. Under these circumstances, the
pension being available to the deceased if not considered, could not
be said to be erroneous approach on the part of the Tribunal. Apart
from the above, we may record that this Court in the case of Revaben
and others Vs. Kantibhai Narottambhai Gohil reported at 1995 ACJ 548
has found that the approach on the part of the Tribunal of deduction
of pensionary benefit in the compensation is erroneous. The
observations were made by the Division Bench of this Court (Coram:
C.K.Thakker & Y.B.Bhatt, J.J.) in the aforesaid decision at para
5.2, reads as under:
“5.2 Having
considered the submissions made by both the counsel and having
perused with care the approach of the Tribunal in this regard, the
only conclusion we can draw is that the entire approach is based on
certain surmises and inferences which are not justified. Moreover,
on a question of principle itself, no deduction could have been made
from the damages awardable under this head, on account of the family
pension which would be available to the claimants on account of the
death of the deceased. We have no doubt that no such deduction was
permissible. The basic principle underlying the inadmissibility of
such deductions is that the damages for the tortuous act which are
awardable to the claimants are on the basis that the tortfeasor has
committed the acts in question for which he is liable to pay damages.
Obviously, the tortfeasor cannot be permitted to take advantage of
his own wrong. If in fact deductions were made on account of certain
benefits which may accrue to the claimants on account of the death of
the deceased and if a set-off is given in respect of these amounts
against the damages awardable, it would amount to conferring an
advantage upon the tortfeasor. Even on basic principles, no such
deduction can be made inasmuch as the benefits which would accrue to
the dependents of the deceased are benefits which would even
otherwise have accrued to the claimants on the death of the deceased,
irrespective of how he had died. These principles are by now well
settled and do not merit a lengthy discussion Suffice it to say that
these principles have been settled by a Division Bench of this court
in the case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji, 1982,
ACJ 316(Gujarat) and also in the case of Arunaben v. Mehmoodbhai
Imamali Kaji, 1983 ACJ 409 (Gujarat).”
8. Under
these circumstances, it is not possible to accept the contention of
the learned counsel for the appellant that for the purpose of
dependency benefit, the assessment of the income by the Tribunal was
erroneous. Hence, the said contention deserves to be rejected and
therefore, rejected.”
It
is worth noting that as recorded in the above referred observations,
three Division Benches of this Court; one in the case Brevaben
v. Kantibhai N. Gohil, reported in 1995 ACJ 548; another
in case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji,
reported in 1982 ACJ 316 (Gujarat);
and third one in case of Arunaben v. Mehmoodbhai Imamali
Kaji, reported in 1983 ACJ 409 (Gujarat),
have taken the view that the tortfeasor cannot be permitted to take
advantage of his own wrong and if a set-off is given in respect of
these amounts against the damages awardable, it would amount to
conferring an advantage upon the tortfeasor. It has also been
observed that no such deduction can be made inasmuch as the
benefits, which would accrue to the dependent of the deceased are
benefits which would even otherwise have accrued to the claimants on
the death of the deceased irrespective of how he had died and such
principles as per the above referred decision of the Division
Benches of this Court are well settled.
Further,
even if the contention is considered for the sake of examination
that any amount was paid by the employer to the claimant on account
of the Group Insurance Scheme, there was no evidence on record to
show that the premium was not
being deducted from the employee concerned, towards the Group
Insurance scheme or that the expenses of such purpose were not
passed over. Apart from the above, if the employer has taken the
insurance of its employee, may be of Group Insurance Policy and if
the employee concerned has claimed the compensation on account of
the accident from the employer, who may be one of the tortfeasor, it
might attract a different consideration, but in a case where the
tortfeasor, who is appellant herein is not at all concerned with the
contract of the Group Insurance, cannot be earn to have premium of
its own wrong for the very statutory liability to compensate the
injury of the third party as per the provisions of the Motor Vehicle
Act read with the contract of Insurance with the owner of the
vehicle through which the injury is sustained to the claimant.
The
reliance placed upon the decision of the Apex Court in case of Helen
C. Rebello (supra) is
ill-founded inasmuch as the principles laid down in the said
decision by the Apex Court is not that the deduction is to be made,
but on the contrary the
conclusion recorded by the Apex Court in paragraph 36 the relevant
of which reads as under:-
“36. …
How can an amount of loss and gain of one contract could be made
applicable to the loss and gain of another contract. Similarly, how
an amount receivable under a statute has
any correlation with an amount earned by an individual. Principle
of loss and gain has to be on the same place within the same sphere,
of course, subject to the contract to the contrary or, any
provisions of
law.”
Further,
at paragraph 38, it was found by the Apex Court, relevant of which
reads as under:-
“We
have no hesitation to conclude that the set of decisions, which
applied the principle
of no deduction of the life insurance amount, should be accepted and
the other set, which interpreted to deduct, is to be rejected. For
all these considerations, we have no hesitation to hold that such
High Courts were wrong in deducting the amount paid or payable under
the life insurance by
giving restricted meaning
to the provisions of the Motor
Vehicles Act
basing mostly on the language of English statutes and not taking
into consideration the changed language and intents of the
legislature under various provisions of the Motor Vehicles Act,
1939.”
The
same view has been reiterated in the subsequent decision of the Apex
Court in the case of United India Insurance Co. Ltd. v.
Patricia Jean Mahajan and Ors. (supra).
Under these circumstances, reliance upon the decision of the Apex
Court is misconceived and is of no help for showing the legal
position otherwise.
The
aforesaid is coupled with the circumstances that after the
conclusion of the case or the proceedings before the Tribunal a new
ground is sought to be canvassed, which would require essentially
the leading of evidence, including the opportunity of
cross-examination by the parties.
Under
the circumstances, the contention cannot be accepted and it cannot
be said that the Tribunal has committed error in not deducting the
amount, if any, paid by the employer to the claimant.
The
next contention raised by the learned Counsel for the appellant is
that the disability of the claimant concerned was not properly
assessed by the expert and the one who certifies the disability was
not the Orthopedic Surgeon competent for such purpose and,
therefore, it was submitted that the Tribunal has committed error in
relying upon the said evidence of the witness Dr.Uday Ramchandra
Puramdare – Ex.46.
We
have considered the evidence of the said witness. It is an admitted
position that one left leg has been amputated below the knee and the
other leg sustained serious disability. It has also come on record
that the claimant was Additional General manager with GSFC. If one
left leg is amputated such may result into 100% locomotive
disability in normal circumstances, but as per the said witness he
has relied upon the evidence of Workmen Compensation Act and the
disability has accordingly been certified.
In
our view, there is amputation of left leg and serious damage and
disability to the strength of the
right leg and if the Tribunal has relied upon the evidence of the
witness, which is less than
100% locomotive disability and has certified to the extent of 87%,
such an approach on the part of the Tribunal cannot be said to be
erroneous. The pertinent aspect is that the witness in the evidence
himself has stated that it could be treated as 100% locomotive
permanent disability, keeping in view the nature of work done by the
person concerned. Under these circumstances, the said contention
cannot be accepted.
It
was next contended by the learned Counsel for the appellant that the
multiplier of five given to the claimant is on higher side. It was
submitted that after a short period of one-and-a-half years’
service, he was to retire. Under these circumstances, the Tribunal
ought not to have given the multiplier of five.
The
age of the claimant as sought in the claim petition was 59 years.
If the multiplier for fatal case is considered as per the
observations of the Apex Court in the case of Sarla Verma
(Smt.) and Ors. v. Delhi Transport Corporation and Anr.,
reported in (2009) 6 SCC, 121,
more particularly the observations made at para 42, the
multiplier could be of 9. The another pertinent aspect is that the
deceased still had to undergo the next years of his life with one
leg with the poor strength and one leg totally amputated. Keeping
in view even the normal longevity of 65 to 70 years, if the
multiplier of 5 is applied by the Tribunal for assessing the
compensation, such an approach cannot be said to be unreasonable or
erroneous. Hence, the said contention deserves to be rejected and,
therefore, rejected.
It
was next contended by the learned Counsel for the appellant that for
next six months, the claimant had received salary from the employer.
It was, therefore, submitted that the Tribunal has committed error
on the said aspect.
It
deserves to be recorded that the total compensation awarded in
normal circumstances has to meet with the test on just compensation.
As observed earlier, there is 100% locomotive disability and the
claimant concerned could not discharge duty. The Tribunal has
considered the aspect of
monitory benefits by encashment of the leave, which may accrue to
the claimant in capacity as the employee of GSFC. Further, another
aspect is that the Tribunal has not considered the prospective
income while assessing the compensation. Under these circumstances,
keeping in view the facts of the present case, if the Tribunal has
assessed the compensation by including six months’ leave, which
otherwise could have been encashed upon the age of retirement, such
an approach cannot be said to be erroneous on the part of the
Tribunal.
Hence,
the appeal is meritless and, therefore, dismissed.
(Jayant Patel, J.)
(G. B. Shah, J.)
vinod
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