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FA/296/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 296 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
============================================================================
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 ?
=====================================================
THE
NEW INDIA ASSURANCE COMPANY LIMITED - Appellant(s)
Versus
BHARATIBEN
RAMESHBHAI PATEL & 6 - Defendant(s)
=====================================================
Appearance
:
MR VIBHUTI NANAVATI for
Appellant(s) : 1,
MR HITESH N ACHARYA for Defendant(s) : 1 -
5.
RULE SERVED for Defendant(s) : 6,
MR NP CHAUDHARY for
Defendant(s) : 7,
MR TUSHAR CHAUDHARY for Defendant(s) :
7,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. Heard
learned Advocate Mr. Vibhuti Nanavati for the Appellant and Mr.
Hitesh N. Acharya for the respondents.
2. This
First Appeal is preferred by the appellant -Insurance Company against
the judgment and award passed by the Motor Accident Claims Tribunal
(Auxi.), Fast Track Court No. 5, Palanpur, on 20.7.2007 in MAC
Petition No. 231/1993.
3. Mr.
Vibhuti Nanavati learned advocate appearing for the appellant ?
Insurance Company has contended that the judgment and award passed
by the Tribunal is contrary to law, facts and weight of evidence on
record. It is also contended by Mr. Nanavati that Tribunal has not
properly interpreted the contents of panchnama of scene of offence
Ex. 27 and the accident marks in the panchnama found at 6 ½
feet off the road, meaning thereby, the collision between the
vehicles took place in the middle of the road, yet, the Tribunal has
not considered the said issue. It is proved and established by the
Insurance Company before the Tribunal that scooterist was totally
negligent and was driving his scooter in a rash and negligent manner,
and therefore, he was fully liable for the said accident. It is also
contended by Mr. Nanavati that the Tribunal has not considered the
income of the deceased in a proper way and manner. The deceased was
working as a managerial capacity for the sole business of
agricultural, cattle and dairy products. It is also argued by Mr.
Nanavati that in light of the latest decision of the Hon’ble Apex
Court, the Tribunal has not considered the rate of interest properly.
He has also contended that the Tribunal ought to have awarded rate of
interest as 7.5% instead of 9.00% because the rate of interest would
depend upon the facts and circumstances of each case and the award of
interest would normally depend upon the bank rate prevailing at the
relevant time. Mr. Nanavati has submitted that the respondents are
not entitled to get any compensatory amount from the Insurance
Company.
4. We
have gone through the contentions raised by Mr.Vibhuti Nanavati
learned advocate appearing for the appellant and Mr. Hitesh N Acharya
learned advocate appearing for the ori. Claimants ? respondents. It
is true that original claimants have also preferred an appeal for
enhancement of quantum of compensation awarded to them, whereas, the
present appeal is filed by the Insurance Company. We have perused the
documentary as well as oral evidence adduced by both the sides before
the Tribunal. We have not found any error committed by the Tribunal
while passing the award. It appears that the income of the deceased
is properly considered. It also appears that the amount which is
awarded to the present respondents ? original claimants is just,
proper, legal and reasonable. We have considered the submissions made
by Mr. Vibhuti Nanavati learned advocate appearing for the appellant
? Insurance Company. Mr. Nanavati has submitted that the rate of
interest may be reduced as the rate of interest awarded by the
Tribunal is on higher side. In the case of Dharampal & Ors vs.
U.P. State Road Transport Corporation, reported in 2008(7)
SCALE 360, wherein, the Hon’ble Apex Court has observed that
?Srate of interest would depend upon the facts and circumstances of
each case and the award of interest would normally depend upon the
bank rate prevailing at the relevant time.?? In light of the above
decision of Hon’ble Apex Court, we are of the opinion that the rate
of interest which is awarded as 9.00% by the Tribunal, is required to
be reduced to the extent of 7.5% considering the current bank rate
and rest of the award is required to be confirmed.
5. In
the result, this Appeal is partly allowed. The rate of interest 9.00%
awarded by the Tribunal in the impugned judgment and award dated
20.7.2007 in MAC Petition No. 231/1993, is hereby reduced to the
extent of 7.5%. Rest of the judgment and award dated 20.7.2007 passed
in MAC Petition No. 231/1993 by Motor Accident Claims Tribunal
(Auxi.), Fast Track Court No. 5, Palanpur, is hereby confirmed.
(J.R.
VORA, J.)
(Z.K.
SAIYED, J.)
mandora/
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