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FA/3554/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3554 of 2009
With
CIVIL
APPLICATION No. 9872 of 2009
In
FIRST
APPEAL No. 3554 of 2009
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 civil judge ?
=========================================================
NATIONAL
INSURANCE COMPANY - Appellant(s)
Versus
RASIKBHAI
POPATLAL DARJI & 2 Respondent(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Appellant(s) : 1,
MR PARESH M DARJI for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 11/02/2010
ORAL JUDGMENT
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This
Appeal preferred under Section 173 of the Motor Vehicles Act, 1988
arises from the judgment and order dated 29th November
2008 passed by the Motor Accident Claims Tribunal, Ahmedabad (Rural)
and Fast Track Court, in Motor Accident Claim Petition No.236 of
1994.
In
an incident of road accident on 11th October 1993, the
respondent No.1 received injuries. The respondent No.1 lodged above
referred Motor Accident Claim Petition No.236 of 1994 in the Motor
Accident Claims Tribunal, Ahmedabad (Rural) for compensation in the
sum of Rs.3,00,000/-. The said claim was, latter at the time of the
judgment, enhanced to Rs.20,00,000/-. The learned Tribunal has by
impugned judgment and order awarded compensation of Rs.11,44,000/-
and interest at the rate of 9%. While calculating the just
compensation, the learned Tribunal took into considering the 38
years’ age of the claimant and the annual income of Rs.30,000/- to
Rs.35,000/-. However, while computing the total compensation, the
learned Tribunal considered Rs.30,000/- monthly income of the
respondent. On that basis, the future loss of income was calculated
at Rs.11,88,000/- and the actual loss of income at Rs.1,80,000/-.
This
error was brought to the notice of the Tribunal by the appellant
insurance company by filing review application Ex.51. The Tribunal by
its order dated 16th April 2009 did accept Considering
the arguments and having perused the proof of income produced with
list at Exh.46, this tribunal is of the view that the aggregate
yearly income of the petitioner comes to Rs.35,842.33 ps.
Nevertheless, the Tribunal refused to interfere. The
Tribunal held:-
8. This
tribunal also believes and is aware that of course the Motor Vehicles
Act is beneficiary law to victims who have suffered a loss in
vehicular accident but at the same time it cannot help to
dependents/injured who are in fact having all means to earn and to
live luxurious life by fruits to be earned from death/injury caused
in accident.
9. Thus,
in view of over all evidence on record and in view of the facts and
circumstances of the case, the question as to what is just
compensation to be awarded by this tribunal being compensation in the
petition has remained to be decided by the tribunal.
10. In
this regard, it may be stated that Section 168 of Motor Vehicles Act
empowers the Claims Tribunal
to make an award determining the amount of compensation which
appears to it to be just . Therefore, the only requirement for
determining the compensation is that it must be just . There is
no other limitation or restriction on its power for awarding just
compensation. The function of the Tribunal is to award just
compensation which is
reasonable on the basis of evidence produced on record.
11. Moreover,
this tribunal further believes that in an appropriate case where from
the evidence brought on record if the Tribunal considers that the
claimants are entitled to get more compensation than claimed, the
Tribunal may also pass such award. The only embargo is it should
be JUST compensation that is to say, it should be neither
arbitrary nor fanciful nor unjustifiable from the evidence. Section
166 provides that an application for compensation arising out of an
accident involving the death of or bodily injury to, persons arising
out of the use of motor vehicles could be made by the person who has
sustained the injury; or by the owner of property i.e. vehicle
involved in the accident or where death has resulted from the
accident, by all or any of the legal representatives of the deceased
or by any of the legal representatives of the deceased as the case
may be. This tribunal is also of the opinion that the compensation to
a victim of a motor vehicle accident or in case of a fatal accident
to the legal representatives is awarded under two heads, viz. special
damages which are suffered by the victim or the legal
representatives and general damages which include compensation
for pain and suffering, loss of amenities, earning capacity and
prospective expenses including expenses for medical treatment. These
views of the tribunal are supported by the case of Nagappa Vs.
Gurudayal Singh and Ors. of Hon’ble Supreme Court of India reported
in 2003(1) G.L.R. (S.C.) p. 897 : 2003(2) SCC P.274.
12. Thus,
in view of the aforesaid discussions and observations as well as in
the light of the binding principle of law enunciated by the different
Hon’ble High Courts including the Hon’ble Apex Court, this tribunal
is not impressed by the arguments of the opponent insurance company
with respect to reducing the assessment of monthly income of
petitioner and accordingly it does not find any substance to review
the judgment on this aspect and thus, the application fails with
regard to assessment of monthly income of petitioner without entering
into issue of maintainable of the application and hence the following
order is passed:
Feeling
aggrieved, the insurer of the offending vehicle has preferred the
present Appeal.
Learned
advocate Mr. Mehta has appeared for the appellant. He has submitted
that the respondent No.1 had produced evidence on record which shows
annual income at Rs.30,000/-. The Tribunal also held that the annual
income of the respondent was Rs.30,000/-. Nevertheless, while
computing the actual loss of income and the future loss of income,
the Tribunal took into considering the monthly income of Rs.30,000/-
which has resulted into inflation of the amount of compensation. The
said error ought to have been rectified in review application.
However, in review application, though the Tribunal agreed that it
was an error, refused to interfere under misconception of law.
Learned
advocate Mr. Darji has contested the Appeal. He has submitted that
the respondent No.1 did produce evidence of his income. He has relied
upon the Income Tax Return filed by the respondent No.1. Copy of the
return placed on record of this Appeal clearly shows the annual gross
income of the respondent to be around Rs.35,000/-.
It
is evident that the Tribunal indeed committed a mistake while
computing actual loss of income and future loss of income suffered by
the respondent No.1 claimant. Instead of accepting the mistake
gracefully and rectifying the error, the learned Tribunal has, under
misconception of law, refused to rectify the error as reflected in
the order made on review application.
For
the aforesaid reason, we allow this Appeal. The impugned judgment and
order dated 29th
November 2008 passed by the Motor Accident Claims Tribunal, Ahmedabad
(Rural) in Motor Accident Claim Petition No.236
of 1994 is quashed and set aside. Consequently, the order dated 16th
April 2009 made below review application Exh.51 is also quashed and
set aside. The Motor Accident Claim Petition No.236 of 1994 is
remanded to the Tribunal below for hearing and decision afresh. In
view of the above order, Civil Application stands disposed of.
The
sum of Rs.3,23,455/- including the proportionate interest and cost on
the sum of Rs. 1,75,000/- lying in the Tribunal below be remitted to
the respondent No.1 claimant. The said sum shall be adjusted against
the amount of compensation, which may be ordered to be paid to the
claimant by the Tribunal.
The
parties will bear their own cost.
[Ms.
R.M.Doshit, J.]
[K.M.Thaker,
J.]
kdc
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