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2018 DIGILAW 371 (GUJ)

NEW INDIA ASSURANCE CO. LTD. v. LADURAM SHAKULRAM

2018-02-02

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. This First Appeal is filed by the insurance company to challenge the judgement and award dated 30.08.2017 passed by the Motor Accident Claims Tribunal, Modasa in MACP No. 594 of 2015 (old MACP No. 437 of 2010). 2. Brief facts are that the claimant was travelling in an Alto car driven by respondent No. 3 herein i.e. original opponent No. 4 on 09.08.2009. They were travelling on Shamlaji-Himmatnagar road in the early morning hours coming from Jaipur going towards Himmatnagar when a truck insured by the appellant insurance company dashed against the car in the process of overtaking the vehicle. The claimant himself stepped in the witness box before the Claims Tribunal and deposed that the car was being driven carefully and with moderate speed. It was the truck driver who was driving his vehicle rashly and in excessive speed which caused the accident. In addition to the deposition of the claimant, the Tribunal also took into account the panchnama Exh 34. On the basis of such evidence, the Tribunal held the truck driver guilty to the extent of 90% in causing the accident and the driver of the Alto car to the extent of 10%. 3. On the question of compensation, the Tribunal noted that the claimant was aged about 47 years on the date of the accident. According to the medical evidence, he had received permanent disability of 27% of the body as a whole. The Tribunal noted that the claimant was working as an insurance agent and earning Rs. 27,393/- per month. The Tribunal, therefore, awarded a sum of Rs. 11,58,000/- towards future loss of income, further awarded Rs. 15,000/- towards pain, shock and suffering, Rs. 20,000/- for special diet and attendant charges and Rs. 39,090/- towards medical expenses. The Tribunal thus awarded total compensation of Rs. 12,32,156/-. 4. This award the insurance company has challenged in the present appeal. Two issues are raised before us. One is with respect to the degree of negligence of the driver of the truck insured by the insurance company and second is with respect to the quantum of compensation. With reference to negligence, counsel submitted that the Tribunal committed an error in holding that the driver of the truck was negligent to the extent of 90%. One is with respect to the degree of negligence of the driver of the truck insured by the insurance company and second is with respect to the quantum of compensation. With reference to negligence, counsel submitted that the Tribunal committed an error in holding that the driver of the truck was negligent to the extent of 90%. However, we notice that the claimant had deposed before the Tribunal that the alto car was being driven carefully and the accident occurred when the truck driver tried to overtake the vehicle in rash and negligent manner. The panchnama would bear the testimony that the accident seems to have taken place when the truck was in the process of overtaking the Alto car. If this is undisputed position, the truck driver had to take all necessary precautions to avoid any collusion. A driver of a vehicle who, on a highway, tries to overtake another vehicle, pose a great duty to take care that in the process no accident takes place. Driver of the vehicle which is being overtaken would certainly not be responsible for the actions of the other driver. His own duty could be to drive on his correct side of the road and not abruptly change his speed or direction. He certainly does not owe a duty to go off the road to avoid any possible accident even if, driver of the other vehicle is either too adventurous or too aggressive. Any person trying to overtake another vehicle, that too on a highway, must do at a time when he is able to safely negotiate the traffic and go back to his correct side after overtaking the vehicle leaving sufficient margin for error. This would hold true for all vehicles, big or small more so for a heavy vehicle such as a bus or truck. We have no hesitation in holding that the Tribunal committed no error in attributing larger responsibility on the driver of the truck. Significantly, the driver of the truck was not examined. Before closing this issue, we may clarify that our observations would not bind the claimant of this appeal or other claimants whose claim petitions, we are told, are pending before the Tribunal since we have not heard them in the context of 10% negligence attributed to the driver of the Alto car. 5. Before closing this issue, we may clarify that our observations would not bind the claimant of this appeal or other claimants whose claim petitions, we are told, are pending before the Tribunal since we have not heard them in the context of 10% negligence attributed to the driver of the Alto car. 5. Coming to the computation of compensation also, we find no error in the view of the Tribunal. The main argument of the counsel for the insurance company was that the physical disability did not reflect in any loss of earning of the claimant. Counsel relied on the fact that the claimant was an insurance agent and, in all probabilities, had his income increased after accident. This by itself would not be a ground for not awarding any compensation towards loss of any income. Physical disability need not necessarily have immediate impact on earning of a person. His potential loss for future particularly, when an insurance agent suffers leg injury leading to permanent disablement, his capacity to put in arduous work and move around which are inbuilt requirements of his job, his earning capacity would be certainly diminished. In fact, the compensation awarded under the other heads are arguably conservative. 6. Under the circumstances First Appeal is dismissed along with Civil Application.