{"id":15663,"date":"2011-04-13T00:00:00","date_gmt":"2011-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/united-vs-jivanbhai-on-13-april-2011"},"modified":"2018-12-19T02:56:06","modified_gmt":"2018-12-18T21:26:06","slug":"united-vs-jivanbhai-on-13-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/united-vs-jivanbhai-on-13-april-2011","title":{"rendered":"United vs Jivanbhai on 13 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
United vs Jivanbhai on 13 April, 2011<\/div>\n
Author: Jayant Patel,&Nbsp;Mr.Justice G.B.Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/655\/2011\t 14\/ 14\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 655 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL \n\n \n\n \nHONOURABLE\nMR.JUSTICE G.B.SHAH\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nUNITED\nINDIA INSURANCE CO LTD, REGISTERED OFFICE AT CHENNAI - Appellant(s)\n \n\nVersus\n \n\nJIVANBHAI\nKANABHAI PATEL & 2 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nRAJNI H MEHTA for\nAppellant(s) : 1, \nMR MTM HAKIM for Defendant(s) : 1, \nNone for\nDefendant(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE G.B.SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/04\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE JAYANT PATEL)<\/p>\n
Draft
\n\tamendment granted.\n<\/p>\n
The
\n\tshort facts of the case are that on 21.10.2002, when the claimant
\n\twas going on the scooter bearing Registration No.GJ-6-F-6626 towards
\n\tGorva and at that time, one Tanker bearing Registration No.GTK-4053
\n\tdashed with the scooter and the wheel of the Tanker had passed over
\n\tthe leg of the deceased and he sustained serious injuries.  As a
\n\tresult thereof, one leg was to be amputated and other leg sustained
\n\tserious damage and disability.  The claim petition was filed
\n\tinitially for a compensation of Rs.10 lac, which ultimately came to
\n\tbe enhanced to Rs.40 lac as per the amendment granted by the
\n\tTribunal.  The tribunal after considering the evidence on record
\n\tawarded the compensation of Rs.19,67,000\/- with the interest at the
\n\trate of 7.5% per annum.  It is under these circumstances, the
\n\tpresent appeal before this Court.\n<\/p>\n
We
\n\thave heard Mr.Rajni Mehta, learned Counsel for the appellant and
\n\tMr.Hakim, learned Counsel appearing for the original claimant by
\n\tcaveat.\n<\/p>\n
The
\n\tfirst contention raised by the learned Counsel for the appellant is
\n\tthat after the award was passed by the Tribunal, in the
\n\tinvestigation through some private agency, the appellant has found
\n\tthat the original claimant was also having insurance as per the
\n\tCompany’s Group Insurance Policy with New India Insurance Company
\n\tLimited and on account of the injury, the said Company i.e.,
\n\tEmployer, M\/s.Gujarat State Financial Corporation Limited had paid
\n\tthe amount of Rs.8,96,970\/- to the original claimant and it was
\n\tsubmitted that under these circumstances, the said amount of
\n\tRs.8,96,970\/- paid by the employer of the claimant to him is
\n\trequired to be deducted from the compensation awarded by the
\n\tTribunal.  The learned Counsel also submitted that to bring on
\n\trecord the aforesaid evidence, Civil Application No.4378 of 2011 has
\n\tbeen filed for additional evidence in the present proceedings.  It
\n\twas submitted that in view of the decision of the Apex Court in the
\n\tcase of Helen C. Rebello and Ors. v. Maharashtra State
\n\tRoad Transport Corporation and Anr.,<\/a> reported in (1999) 1 SCC 90,
\n\tsince the said amount has not been deducted, which is paid by the
\n\temployer, it can be said that the Tribunal has committed error,
\n\twhich may be considered in the present appeal.  The learned Counsel
\n\tfurther relied upon the subsequent decision of the Apex Court in
\n\tcase of United India Insurance Co. Ltd. v. Patricia Jean
\n\tMahajan and Ors., reported in (2002) 6 SCC, 281,
\n\twherein as per him, the Apex Court has reiterated the same principle
\n\tas was laid down by it in the earlier decision in case of Helen
\n\tRebello (Supra).  It was
\n\tsubmitted that, therefore, this Court may interfere.\n<\/p>\n
\tWe
\n\tmay record that one of the similar contentions came to be raised for
\n\tdeduction of the amount of compensation on the ground of
\n\tavailability of the pension on account of the death of the deceased
\n\tin First Appeal No.1083 of 2011 decided on 4.4.2011 and this Court
\n\tin the aforesaid matter considered and negatived the said contention
\n\tby making observations at paragraphs 7 and 8 as under:-\n<\/p>\n
“7.\tAs
\n\tobserved earlier, the Tribunal has taken
\n\tnote of the loss being suffered by the family of the deceased on
\n\taccount of the death of the deceased which includes the pay
\n\trevision, loss of pension, provident fund as well as gratuity which
\n\tcomes to about Rs 8 lakhs. If the pay revision is considered, the
\n\tdependency benefit would be double.  Under these circumstances, the
\n\tpension being available to the deceased if not considered, could not
\n\tbe said to be erroneous approach on the part of the Tribunal.  Apart
\n\tfrom the above, we may record that this Court in the case of Revaben
\n\tand others Vs. Kantibhai Narottambhai Gohil reported at 1995 ACJ 548
\n\thas found that the approach on the part of the Tribunal of deduction
\n\tof pensionary benefit in the compensation is erroneous.  The
\n\tobservations were made by the Division Bench of this Court (Coram:
\n\tC.K.Thakker & Y.B.Bhatt, J.J.) in the aforesaid decision at para
\n\t5.2, reads as under:\n<\/p>\n
“5.2\tHaving
\nconsidered the submissions made by both the counsel and having
\nperused with care the approach of the Tribunal in this regard, the
\nonly conclusion we can draw is that the entire approach is based on
\ncertain surmises and inferences which are not justified.  Moreover,
\non a question of principle itself, no deduction could have been made
\nfrom the damages awardable under this head, on account of the family
\npension which would be available to the claimants on account of the
\ndeath of the deceased.  We have no doubt that no such deduction was
\npermissible.  The basic principle underlying the inadmissibility of
\nsuch deductions is that the damages for the tortuous act which are
\nawardable to the claimants are on the basis that the tortfeasor has
\ncommitted the acts in question for which he is liable to pay damages.
\n Obviously, the tortfeasor cannot be permitted to take advantage of
\nhis own wrong.  If in fact deductions were made on account of certain
\nbenefits which may accrue to the claimants on account of the death of
\nthe deceased and if a set-off is given in respect of these amounts
\nagainst the damages awardable, it would amount to conferring an
\nadvantage upon the tortfeasor.  Even on basic principles, no such
\ndeduction can be made inasmuch as the benefits which would accrue to
\nthe dependents of the deceased are benefits which would even
\notherwise have accrued to the claimants on the death of the deceased,
\nirrespective of how he had died.  These principles are by now well
\nsettled and do not merit a lengthy discussion  Suffice it to say that
\nthese principles have been settled by a Division Bench of this court
\nin the case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji,<\/a> 1982,
\nACJ 316(Gujarat) and also in the case of Arunaben v. Mehmoodbhai
\nImamali Kaji,<\/a> 1983 ACJ 409 (Gujarat).”\n<\/p>\n
\t8.\tUnder
\n\tthese circumstances, it is not possible to accept the contention of
\n\tthe learned counsel for the appellant that for the purpose of
\n\tdependency benefit, the assessment of the income by the Tribunal was
\n\terroneous.  Hence, the said contention deserves to be rejected and
\n\ttherefore, rejected.”\n<\/p>\n
It
\n\tis worth noting that as recorded in the above referred observations,
\n\tthree Division Benches of this Court; one in the case Brevaben
\n\tv. Kantibhai N. Gohil, reported in 1995 ACJ 548; another
\n\tin case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji,<\/a>
\n\treported in 1982 ACJ 316 (Gujarat);\n<\/p>\n
\tand third one in case of Arunaben v. Mehmoodbhai Imamali
\n\tKaji,<\/a> reported in 1983 ACJ 409 (Gujarat),
\n\thave taken the view that the tortfeasor cannot be permitted to take
\n\tadvantage  of his own wrong and if a set-off is given in respect of
\n\tthese amounts against the damages awardable, it would amount to
\n\tconferring an advantage upon the tortfeasor.  It has also been
\n\tobserved that no such deduction can be made inasmuch as the
\n\tbenefits, which would accrue to the dependent of the deceased are
\n\tbenefits which would even otherwise have accrued to the claimants on
\n\tthe death of the deceased irrespective of how he had died and such
\n\tprinciples as per the above referred decision of the Division
\n\tBenches of this Court are well settled.\n<\/p>\n
Further,
\n\teven if the contention is considered for the sake of examination
\n\tthat any amount was paid by the employer to the claimant on account
\n\tof the Group Insurance Scheme, there was no evidence on record to
\n\tshow that the premium was not
\n\tbeing deducted from the employee concerned, towards the Group
\n\tInsurance scheme or that the expenses of such purpose were not
\n\tpassed over.  Apart from the above, if the employer has taken the
\n\tinsurance of its employee, may be of Group Insurance Policy and if
\n\tthe employee concerned has claimed the compensation on account of
\n\tthe accident from the employer, who may be one of the tortfeasor, it
\n\tmight attract a different consideration, but in a case where the
\n\ttortfeasor, who is appellant herein is not at all concerned with the
\n\tcontract of the Group Insurance, cannot be earn to have premium of
\n\tits own wrong for the very statutory liability to compensate the
\n\tinjury of the third party as per the provisions of the Motor Vehicle
\n\tAct read with the contract of Insurance with the owner of the
\n\tvehicle through which the injury is sustained to the claimant.\n<\/p>\n
The
\n\treliance placed upon the decision of the Apex Court in case of Helen
\n\tC. Rebello (supra) is
\n\till-founded inasmuch as the principles laid down in the said
\n\tdecision by the Apex Court is not that the deduction is to be made,
\n\tbut on the contrary the
\n\tconclusion recorded by the Apex Court in paragraph 36 the relevant
\n\tof which reads as under:-\n<\/p>\n
“36.\t…\n<\/p>\n
\tHow can an amount of loss and gain of one contract could be made
\n\tapplicable to the loss and gain of another contract.  Similarly, how
\n\tan amount receivable under a statute has
\n\tany correlation with an amount earned by an individual.  Principle
\n\tof loss and gain has to be on the same place within the same sphere,
\n\tof course, subject to the contract to the contrary or, any
\n\tprovisions of
\n\tlaw.”\n<\/p>\n
\tFurther,
\n\tat paragraph 38, it was found by the Apex Court, relevant of which
\n\treads as under:-\n<\/p>\n
“We
\n\thave no hesitation to conclude that the set of decisions, which
\n\tapplied the principle
\n\tof no deduction of the life insurance amount, should be accepted and
\n\tthe other set, which interpreted to deduct, is to be rejected.  For
\n\tall these considerations, we have no hesitation to hold that such
\n\tHigh Courts were wrong in deducting the amount paid or payable under
\n\tthe life insurance by
\n\tgiving restricted meaning
\n\tto the provisions of the Motor
\n\tVehicles Act
\n\tbasing mostly on the language of English statutes and not taking
\n\tinto consideration the changed language and intents of the
\n\tlegislature under various provisions of the Motor Vehicles Act,
\n\t1939.”\n<\/p>\n
The
\n\tsame view has been reiterated in the subsequent decision of the Apex
\n\tCourt in the case of United India Insurance Co. Ltd. v.
\n\tPatricia Jean Mahajan and Ors. (supra).\n<\/p>\n
\t Under these circumstances, reliance upon the decision of the Apex
\n\tCourt is misconceived and is of no help for showing the legal
\n\tposition otherwise.\n<\/p>\n
\tThe
\n\taforesaid is coupled with the circumstances that after the
\n\tconclusion of the case or the proceedings before the Tribunal a new
\n\tground is sought to be canvassed, which would require essentially
\n\tthe leading of evidence, including the opportunity of
\n\tcross-examination by the parties.\n<\/p>\n
Under
\n\tthe circumstances, the contention cannot be accepted and it cannot
\n\tbe said that the Tribunal has committed error in not deducting the
\n\tamount, if any, paid by the employer to the claimant.\n<\/p>\n
\tThe
\n\tnext contention raised by the learned Counsel for the appellant is
\n\tthat the disability of the claimant concerned was not properly
\n\tassessed by the expert and the one who certifies the disability was
\n\tnot the Orthopedic Surgeon competent for such purpose and,
\n\ttherefore, it was submitted that the Tribunal has committed error in
\n\trelying upon the said evidence of the witness Dr.Uday Ramchandra
\n\tPuramdare – Ex.46.\n<\/p>\n
\tWe
\n\thave considered the evidence of the said witness.  It is an admitted
\n\tposition that one left leg has been amputated below the knee and the
\n\tother leg sustained serious disability.  It has also come on record
\n\tthat the claimant was Additional General manager with GSFC.  If one
\n\tleft leg is amputated such may result into 100% locomotive
\n\tdisability in normal circumstances, but as per the said witness he
\n\thas relied upon the evidence of Workmen Compensation Act and the
\n\tdisability has accordingly been certified.\n<\/p>\n
In
\n\tour view, there is amputation of left leg and serious damage and
\n\tdisability to the strength of the
\n\tright leg and if the Tribunal has relied upon the evidence of the
\n\twitness, which is less than
\n\t100% locomotive disability and has certified to the extent of 87%,
\n\tsuch an approach on the part of the Tribunal cannot be said to be
\n\terroneous.  The pertinent aspect is that the witness in the evidence
\n\thimself has stated that it could be treated as 100% locomotive
\n\tpermanent disability, keeping in view the nature of work done by the
\n\tperson concerned.  Under these circumstances, the said contention
\n\tcannot be accepted.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel for the appellant that the
\n\tmultiplier of five given to the claimant is on higher side.  It was
\n\tsubmitted that after a short period of one-and-a-half years’
\n\tservice, he was to retire.  Under these circumstances, the Tribunal
\n\tought not to have given the multiplier of five.\n<\/p>\n
The
\n\tage of the claimant as sought in the claim petition was 59 years.
\n\tIf the multiplier for fatal case is considered as per the
\n\tobservations of the Apex Court in the case of Sarla Verma
\n\t(Smt.) and Ors. v. Delhi Transport Corporation and Anr.,<\/a>
\n\treported in (2009) 6 SCC, 121,
\n\tmore particularly the observations made at para 42, the
\n\tmultiplier could be of 9.  The another pertinent aspect is that the
\n\tdeceased still had to undergo the next years of his life with one
\n\tleg with the poor strength and one leg totally amputated.  Keeping
\n\tin view even the normal longevity of 65 to 70 years, if the
\n\tmultiplier of 5 is applied by the Tribunal for assessing the
\n\tcompensation, such an approach cannot be said to be unreasonable or
\n\terroneous.  Hence, the said contention deserves to be rejected and,
\n\ttherefore, rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel for the appellant that for
\n\tnext six months, the claimant had received salary from the employer.
\n\tIt was, therefore, submitted that the Tribunal has committed error
\n\ton the said aspect.\n<\/p>\n
It
\n\tdeserves to be recorded that the total compensation awarded in
\n\tnormal circumstances has to meet with the test on just compensation.
\n\t As observed earlier, there is 100% locomotive disability and the
\n\tclaimant concerned could not discharge duty.  The Tribunal has
\n\tconsidered the aspect of
\n\tmonitory benefits by encashment of the leave, which may accrue to
\n\tthe claimant in capacity as the employee of GSFC.  Further, another
\n\taspect is that the Tribunal has not considered the prospective
\n\tincome while assessing the compensation.  Under these circumstances,
\n\tkeeping in view the facts of the present case, if the Tribunal has
\n\tassessed the compensation by including six months’ leave, which
\n\totherwise could have been encashed upon the age of retirement, such
\n\tan approach cannot be said to be erroneous on the part of the
\n\tTribunal.\n<\/p>\n
\tHence,
\n\tthe appeal is meritless and, therefore, dismissed.\n<\/p>\n
 (Jayant Patel, J.)<\/p>\n
  (G. B. Shah, J.)<\/p>\n
 vinod<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court United vs Jivanbhai on 13 April, 2011 Author: Jayant Patel,&Nbsp;Mr.Justice G.B.Shah,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-15663","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nUnited vs Jivanbhai on 13 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/united-vs-jivanbhai-on-13-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"United vs Jivanbhai on 13 April, 2011 - 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