FA/446019/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4460 of 1999 With FIRST APPEAL No. 4080 of 1999 With CROSS OBJECTION No. 26 of 2001 In FIRST APPEAL No. 4080 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= ORIENTAL INSURANCE CO.LTD. - Appellant(s) Versus JIGNESH RATILAL DAVE & 5 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, MR PV HATHI for Defendant(s) : 1, SERVED BY AFFIX.(N) for Defendant(s) : 2 - 3, 5, NOTICE SERVED for Defendant(s) : 4, MS LILU K BHAYA for Defendant(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT FA/446019/1999 2/6 JUDGMENT Date : 23/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. These appeals are filed by the Insurance Companies in relation to an award made by the Motor Accident Claims Tribunal. Both Insurance Companies, being the insurer of two vehicles involved and saddled with proportional liabilities of 20% and 80% have challenged the award. 2. 20% being saddled on the Jeep driver and on truck driver. 3. In the accident a young Engineer of 25 years who was in his final year of M.B.A. was injured. The injured has been reduced to almost recluse with 75% blindness and 54% neurological disability. The skull bone being damaged in part and missing. As on today he is not in a position to discharge his daily function normally and is dependant on the family to keep him surviving human being. 4. The accident occurred when the injured along with others were travelling in jeep on Sion-Panvel Road at about 1.30 p.m. in Maharashtra after taking up examination of M.B.A. final Semester while the jeep reached near the place of incident near a creek of C.B.D. Known as new Bombay. At that time the other vehicle truck No. MMK 1778 in a rash and negligent manner came from approach road and caused the FA/446019/1999 3/6 JUDGMENT accident. After the accident the truck driver tried to escape and stood at a distance from the site of the occurrence. The question of negligence is contested by the parties. But the Tribunal had after careful consideration of the witnesses came to the following conclusion: “para – 33 - From the above evidence on road, it appears that jeep was proceeding on a highway, there was a creek of CBD and curve on the road, the driver of the truck who was coming from opposite side was therefore required to be extra careful and cautious to see that no vehicle or pedestrian is knocked down by his vehicle. The driver of the vehicle failed to exercise such care and caution as a result of which accident took place. Therefore, I come to the conclusion that accident was a result of rash and negligent driving on the part of opponent No. 5 the driver of the truck. Para – 34 - It is pertinent to note that driver of the jeep, opponent No. 2 was driving a jeep car in which four to five persons were travelling on a highway road where other roads wre meeting and thee was a curve also. Therefore, if he had taken some care and caution, he could have avoided the possible collision. Therefore, it appears that there was some contribution in the accident on the part of opponent No. 2 the driver of the jeep also. Looking to the facts and circumstances on record, place of accident, site of accident, size of two vehicles, I come to the conclusion that contribution of the opponent No. 2 in FA/446019/1999 4/6 JUDGMENT the accident can be assessed at 20%.” 5. From the aforesaid submission, the Tribunal came to the conclusion that there was a composite negligence of both the drivers i.e. driver of the truck and jeep, the proportion was fixed 80% and 20% respectively and from the factual matrix we consider that this question need not to be gone in greater detail because the truck had come from the side road and any vehicle coming from the side road is required to be careful before approaching the main road. None the less the main road driver was required to be vigilant. The Tribunal has fixed the liabilites of the driver and we do not think that reappreciation of evidence would result in other view than the one arrived at, a finding which would be contrary. The Tribunal after considering the condition of the insured has awarded the claim in the following terms in para 110: The applicant is therefore entitled to following amounts as compensation. Rs. 12,96,000/- loss of future income Rs. 4,62,000/- actual loss of income, enjoyment of life and amenities etc. Rs. 2,00,000/- mental agony, pain, shock, sufferings Rs. 2,50,000/- expenses of medicine, treatment, rich diet, transportation, attendance etc. Rs. 1,50,000/- future operation charges etc. --------------------- Rs. 23,58,000/- Total ========= FA/446019/1999 5/6 JUDGMENT 6. Arugments were advanced by both learned counsel for Insurance Companies that the award of the Tribunal is excessive. The Tribunal has taken into consideration the salary of the deceased which could have been there around Rs. 8,500/- along with bonus then the prospective income would be around Rs. 12,000/-. We consider that a qualified Engineer with M.B.A. Degree would not earn less than the Tribunal has taken into consideration and in that background we do not think that loss of actual future income has in any way being so, has to be considered as excessive amount. The other amounts of mental agony, expenses of medicine and future care are also accordingly on the lower side because the Tribunal has awarded expenses for future operation of Rs. 1,50,000/- whereas part of the skull bone has already been damaged that is not something which is available for askings and to get such an injury cured is a very difficult task and the amount awarded is on the lower side so also the medicine expenses which has been awarded to the tune of Rs. 2,50,000/- where the patient was required to be attended in hospital in Mumbai and Ahmedabad both. Thus, the amount of future expenses is on the lower side so far as medical treatment is concerned. 7. In that view of the matter, we are of the opinion that the award of the Tribunal cannot be said to be on the excessive side and therefore requires no interference. For a young bright Engineer pursuing and on the last leg of his Management Studies having been reduced to recluse as on today requiring attendance constantly from an attendant and medical personnel, we do not think that the award which has been made is on the excessive side and therefore keeping the FA/446019/1999 6/6 JUDGMENT entire circumstances, perspective of the evidence and facts of standing on record, we do not think that the Tribunal has committed any wrong in fixing the liability. In that view of the matter, we see that the order of the Tribunal is perfectly right. Hence we affirm the award and dismiss both the appeals of the Insurance Companies. 8. In view of the reasons given hereinabove, the Cross Objection does not survive and the same is rejected. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)