AI Structured Summary
Not yet generated for this judgment
Judgment
Exh.No.,Particulars
33,Examination In chief of Meenaben Bhrahmbhatt
39,Complaint.
\40,Panchanama
41,Application given to the DGP
42,Reply given by the DGP
43,Copy of FIR
44,"Tax Bill issued by the Ahmedabad Municipal
Corporation
45,Copy of 7/12 extract
47,"Possession letter of shop no.9 issued by the Hardik
Builders.
48,"Allotment letter of shop no.9 issued by the Shivkrupa
Association
50,PM Note of deceased Dharmeshbhai
51,Purshis of evidence close
,
57,Copy of charge sheet
7.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.,
8.0. Having heard the learned advocates for the respective parties and upon considering the original record and proceedings, we may first examine the",
issue of liability of the appellant. In the deposition at Exh.33, the wife of the deceased has clearly admitted the fact that deceased was the owner of",
the car. There is no evidence on record to show that the deceased was paid driver. The Division Bench of this Court in the case of Jagatsinh Valsinh,
(supra) while considering the similar set of facts has come to the conclusion that the tort feasor cannot be take advantage of his own wrong. In view,
of the aforesaid facts and as deceased Dharmeshbhai cannot be said to be a paid driver and upon reappreciation of evidence on record, we find that",
the Tribunal has committed an error in coming to the conclusion that the Dharmeshbhai was a paid driver. In facts of this case, Dharmeshbhai was",
himself driving a Car and there is no iota of evidence to show that he was paid driver of the owner â€" respondent no.4 herein. No evidence to said,
effect has been led and therefore, the appellant â€" Insurance Company Bharti AXA General Insurance Company Limited cannot be held to be",
liable. This Court in the case of United India Insurance Co Limited vs. Maganbhai Darubhai Parmar through legal heirs reported in 2016(3) GLR 2342,
has observed thus:,
“6.0. Heard learned advocates appearing for respective parties at length. I have reÂappreciated the entire evidence on record.,
At the outset it is required to be noted that as pleaded by the original claimants even in the claim petition and even as deposed by the original claimant,
No.1 Ushaben, the deceased himself was driving the jeep. It is also so pleaded and so stated by the original claimant No.1 in her deposition that the",
deceased was serving as a driver of Tempo and earning Rs.2500/Â per month. Nothing is on record that the deceased was employed as a driver of,
the jeep. At this stage it is required to be noted that as such the jeep involved in the accident was owned by the father of the deceased himself.,
Merely because the deceased was driving the jeep, he cannot be said to be the driver of the jeep of which the risk was covered on payment of the",
additional premium. Only in a case with respect to the employed driver of the jeep, the additional risk of such driver on payment of additional premium",
can be said to have been covered. The learned Tribunal has held the appellant herein insurance company liable to pay the compensation solely on the,
ground that as the deceased was driving the jeep and therefore, he can be said to be the driver of the jeep, which cannot be sustained. As observed",
hereinabove, there is no evidence on record that the deceased was employed as driver of the jeep that too by his father owner of the jeep. As",
observed herein above on the contrary it was the case on behalf of the original claimants so pleaded in the claim petition as well as so stated in the,
deposition that the deceased was serving as a driver of tempo. Under the circumstances, the learned Tribunal has materially erred in holding the",
appellant insurance company liable to pay the compensation considering the additional premium paid with respect to covering the additional risk of the,
driver.,
[6.1] Even otherwise the impugned judgment and award passed by the learned Tribunal holding the appellant insurance company liable to pay the,
compensation cannot be sustained. It is required to be noted that the deceased himself was driving the jeep, even as admitted by the original claimants.",
Even the learned Tribunal has also held that at the time of accident the jeep was being driven by the deceased himself. There is a specific finding,
recorded by the learned Tribunal that the deceased himself can be said to be negligent for the accident. In that view of the matter, the tort feasor",
cannot be permitted to take benefit of his own wrong and therefore also, the insurance company insurer could not have been held liable to pay the",
compensation. This view is supported by the decisions of the Honble Supreme Court in the case of Sadanand Mukhi & Ors. (Supra) and decisions of,
this Court in the case of Hiteshbhai Sureshbhai Patel (Supra) and Jagatsinh Valsinh (Supra).,
In view of the above and for the reasons stated above, impugned judgment and award passed by the learned Tribunal holding the appellant insurance",
company liable to pay the compensation cannot be sustained and the same deserves to be quashed and set aside.,
8.1. In view of the above, therefore, the appellant Insurance Company Bharti AXA General Insurance Company Limited cannot be held to be",
liable to satisfy the award and the appellant â€" Insurance Company Bharti AXA General Insurance Company Limited deserves to be exonerated.,
9.0. As far as negligence is concerned, upon reÂappreciation of evidence on record, we find that the Truck being bigger vehicle was in stationary",
position that too without any sign or reflector. The driver of the truck had admitted in the criminal proceeding that the truck was parked in a dangerous,
position and therefore, in opinion of this Court, the Tribunal has committed an error in coming to the conclusion that the driver of both the vehicles i.e.",
Truck and the Indica Car were negligent equally i.e. 50% :50%. At this juncture, it would be appropriate to refer to the judgment of this Court in the",
case of Chirag Nayankumar Shah(supra) wherein in similar facts and circumstances and similar set of evidence, the Division Bench has considered",
the contributory negligent of both the vehicles to the extent of 70% : 30%. Mr. Hakim, learned advocate for the original claimants candidly submitted",
that considering the FIR at Exh.43 and panchnama at Exh.40, the manner in which the accident has occurred, the driver of the Indica Car is required",
to be held negligent to the extent to 30% and driver of the truck is required to be held negligent to the extent of 70%. Mr. Shelat learned advocate for,
the National Insurance Company Limited is not able to point out anything contrary to the same. In facts of this case, therefore, we come to the",
conclusion that the driver of the truck was negligent to the extent of 70% and driver of the car â€" deceased was negligent to the extent of 30%.,
9.1. Considering the contention raised by the original claimants in their Cross Objection are concerned, it is found that the Tribunal on appreciation of",
the evidence on record has considered the annual income of the deceased at Rs. 1,61,121/Â p.a. The original claimants have adduced documentary",
evidence by way of filing Income Tax Returns for AY 2007Â08, 2008Â09 and 2009Â10 wherein the net income after deduction of tax is shown as",
under:,
Year of Income Tax Income after deduction of Tax Return,
2007Â08 1,15,021/Â",
2008Â09 1,35,163/Â",
2009Â10 1,77,450/Â",
9.2 Considering the mean of the same, the annual income would come to Rs.1,42,324/Â. Similarly, following the ratio laid down by the Hon'ble",
Supreme Court in the case of Pranay Sethi (supra) the age of the deceased was 36 years at the time of accident and was businessman, the original",
claimants would be entitled to prospective income to the extent of 40% and hence annual income would come to Rs.1,99,127/Â. As there are more",
than three dependents, deduction towards personal expenses would be 1/4th and not 1/3rd and thus, out of Rs.1,99,127/Â there would be deduction of",
Rs.49,781/Â and thus, net income per year would come to Rs.1,49,346/Â and applying multiplier of 15, the original claimants would be entitled to",
compensation under the head of loss of future dependency at Rs.22,40,190/Â. Over and above this, original claimants would be entitled to",
Rs.70,000/ as compensation under the different conventional heads and thus, respondents original claimants would be entitled to total compensation",
of Rs.23,10,190/Â. As the Tribunal has awarded Rs. 15,01,000/Â, the original claimants would be entitled to additional amount of Rs. 8,09,190/Â.",
9.3. As decided by this Court by this judgment, the respondent no.3 Insurance Company National Insurance Company would be liable to the extent",
of 70% as this Court has come to the conclusion that th driver of the truck was negligent to the extent of 70%. As the deceased is held to be negligent,
to the extent of 30%, the National Insurance Company respondent no.3 as well as driver and owner of the Truck would be jointly and severally",
required to pay Rs.16,70,133/Â with interest at rate of 8% from the date of filing of claim petition till its realization.",
The appeal filed by the appellant Insurance Company Bharti AXA General Insurance Company Limited is allowed as observed herein above,
and the Cross Objection filed by the original claimants is also allowed to the aforesaid extent. The impugned judgment and award is modified,
accordingly. The respondent no.3Â National Insurance Company Limited shall deposit the remaining amount as per the present judgment passed by,
this Court within a period of three months from the date of receipt of the order. The appellant Insurance Company Bharti AXA General Insurance,
Company Limited shall be entitled to refund the amount deposited by it as per the order dated 10.07.2014 passed in Civil Application No. 5644 of,
2014. The record and proceedings be remitted back to the Tribunal forthwith. However, there shall be no order as to costs.",