C/FA/1760/2012 JUDGMENT DATED: 20/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1760 of 2012
With
R/CROSS OBJECTION NO. 44 of 2013
In
FIRST APPEAL NO. 1760 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATIONAL INSURANCE COMPANY
Versus
HASMUKHBHAI CHHOGABHAI KUMAVAT & 4 other(s)
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
for the Defendant(s) No. 5
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 5
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 4
RULE SERVED BY DS for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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C/FA/1760/2012 JUDGMENT DATED: 20/09/2022
Date : 20/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. This Appeal and Cross Objections are filed challenging the judgment and award dated 17.01.2012, passed by the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) in M.A.C.P. No.1349 of 2005. First Appeal No.1760 of 2012 is filed by the Insurance Company under section 173 of the Motor Vehicle Act 1988,('the act' for short), challenging the liability fastened on it, by questioning the involvement of Maruti Car No. RJ-01-C-6389 insured with it as also the quantum of compensation awarded, whereas, the Cross Objections are filed under Order XLI, Rule 22 of Civil Procedure Code by the original claimants seeking enhancement.
2. The facts in brief are:
2.1 That on 09.10.2005, at around 7:00 a.m., Bharatkumar Hasmukhbhai Kumavat (hereinafter referred to as "the deceased") was driving his Motor bike No.GJ-01-DB-6886, on Jivraj Bridge, near Shyamal Cross. At that time one Maruti Car No.RJ-01-C-6389 came in a full speed from behind and by trying to overtake from the wrong side of the road, dashed with rear portion of Motor bike, because of which the deceased sustained grievous injuries. He was admitted to Karnavati Hospital and during treatment, he died on 10.10.2005. It was case of the original claimants that the accident occurred on account of sole negligence of the Page 2 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 driver of Maruti Car. The driver of Maruti Car ran away from the place of incident. A FIR was lodged before Satellite Police Station, Ahmedabad at Exh.61. One Mithalal Krupaji Prajapati, eye-witness of the accident was examined at Exh.31. The deceased was possessing degree of B.E.I.T. from Gujarat University and was preparing for TOEFL Examination for further education. For the said accident, the original claimants filed claim petition under Section 166 of the Act seeking compensation of Rs.44,00,000/-.
2.2 Upon claim petition being filed, notices were issued, the opponents filed their respective written statements. The Tribunal, after hearing the parties and after taking into consideration the evidence on record held that considering the FIR and panchnama of place of incident and affidavit filed by the original claimants, it's a case where driver of Maruti Car No.RJ-01-C-6389 was involved in the accident. The tribunal thus turned down the submission of Insurance Company of Maruti Car that Car was not involved in the accident. The Tribunal also held that the driver of Maruti Car could not be examined, and therefore, adverse inference is required to be drawn against him. The tribunal held driver of Car as sole negligent for occurrence of the said accident.
2.3 In relation to compensation, the Tribunal awarded total compensation of Rs.11,49,084/- with the interest at the rate of 7% p.a. from the date of filing of claim petition till its realization. The Tribunal held opponent No.1 (owner/driver of Maruti Car) and opponent No.3 (Insurance Company of Page 3 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 Maruti Car) as jointly and severally liable for the payment of compensation.
2.4 For compensation the Tribunal took into consideration the income of the deceased at Rs.60,000/- p.a. and after adding future prospective income, the income of deceased was assessed at Rs.90,000/- p.a. The Tribunal deducted 1/3 amount towards personal expenses and multiplier of 18 was made applicable. The Tribunal further awarded Rs.10,000/- towards loss of estate, Rs.10,000/- for loss of consortium, Rs.2,500/- for funeral expenses and Rs.46,584/- for medical expenses. Thus, Tribunal awarded total compensation of Rs.11,49,084/-.
2.5 As noticed earlier, aggrieved by the liability fasten on the Insurance Company of Maruti Car as well as quantum of compensation awarded, present Appeal has been filed by the Insurance Company of Maruti Car and Cross Objections are filed original claimants seeking enhancement.
3. Heard Mr. Rishabh Mehta, learned advocate for Mr. Dakshesh Mehta learned advocate for the appellant - Insurance Company, learned advocate Mr. Hiren M. Modi, for respondent Nos.1 to 3 and learned advocate Mr. M.J. Shelat for respondent No.5 (Oriental Insurance Company). Though served, none appeared for respondent No.4. It is pertinent to note that before the Tribunal also, none appeared for driver/ owner of Maruti Car.
4. Appearing for the appellant - Insurance Company, Mr. Page 4 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 Mehta learned advocate contended that Tribunal has committed serious error by holding that the Maruti Car No.RJ-01-C-6389 was involved in the accident. The Tribunal has erred in not considering that in the cross-examination of eye-witness Mithalal Krupaji Prajapati at Exh.31, it was established that he was unable to identify the vehicle. He further contended that the eye-witness came at the place of incident after hearing the collision noise of the vehicle and at that time the Car was not there, and therefore, the involvement of the Car was not proved. He further contended that the front portion of Maruti Car dashed with the rear portion of the Motor bike and even if the version of eye-witness is considered then also as the Car dashed with the rear portion of the bike, the driver of bike (the deceased) was also negligent for the occurrence of the said accident. He further contended that even the colour of the Car referred in the FIR does not match with the Car No.RJ-01-C- 6389, and therefore, also it creates a doubt in relation to involvement of the Maruti Car in the accident. He, thus, contended that the Tribunal is in error in fastening the liability on the Insurance Company of Maruti Car, particularly, when the involvement of Maruti Car itself is not proved. Alternatively, he submitted that from the FIR at Exh.61 and panchnama of the scene of incident at Exh.46 reveals that the driver of Motor bike was also negligent for occurrence of the accident, and therefore also the judgment and award of the Tribunal is erroneous. In relation to compensation, he contended that the Tribunal without any Page 5 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 proof, has erred in assessing income of the deceased at Rs.60,000/- per year. The same being on higher side needs reduction. He, thus, contended to allow his Appeal.
5. On the other hand, learned advocate Mr. Hiren M. Modi for the original claimants submitted that the Tribunal has correctly appreciated the evidence on record and held driver of Maruti Car as sole negligent for occurrence of the said accident. He further contended that before the Tribunal, though served, the driver/owner of Maruti Car chose not to appear, and therefore, he could not be examined, and therefore, the Tribunal has rightly drawn adverse inference against him.
5.1 In relation to compensation, Mr. Modi submitted that the Tribunal is in error in considering the income of the deceased at Rs.90,000/- p.a. He further submitted that the deceased was possessing degree of Bachelor of Engineering in Information Technology from Gujarat University and preparing for TOEFL, which is a competitive examination for further studies. The deceased died at the young age of 21 years having bright future prospects. Various certificates, at Exh.50 to 58, shows his outstanding career. He further contended that one co-student -Viral Hirpara was examined at Exh.35, who deposed that through campus placement, he was recruited with the salary of Rs.10,000/- and at present (in the year 2009) he is having salary of Rs 37,500/-per month. He, therefore, contended that monthly income of the deceased ought to have considered at Rs.30,000/- p.m. He, Page 6 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 thus, contended that judgment and award of Tribunal being erroneous on the aspect of assessing the monthly income of the deceased, is required to be modified accordingly.
6. Heard learned advocates appearing for the respective parties. Record and Proceedings have been perused.
6.1 Upon re-appreciation of the evidence on record, we have noticed that the Insurance Company in this case has questioned the liability fastened on it by contending that the Maruti Car was not involved in the accident. It is not in dispute that at the time of accident, the Maruti Car was insured with the appellant - Insurance Company. In the FIR at Exh.61, that the Car number is referred as RJ-01-C-6389. The FIR referrers that the registration number of Maruti Car was given by nearby pedestrian, who had seen the accident. Further in the deposition of eye-witness of Mithalal Krupaji Parjapati at Exh.31, he had stated that after hearing the collision noise, he went to the place of incident and had seen the deceased lying on the road with head injuries. He had stated that he had seen the driver of Maruti Car running away from the place of accident. Therefore, in our opinion the tribunal's finding that Maruti car was involved in the accident is correct and based on evidences on record. Most importantly, before the Tribunal, though served, the driver/owner of the Maruti Car chose not to appear, and therefore, he could not be examined. Therefore, also the Tribunal has rightly drawn adverse inference against driver of Maruti Car. We, therefore, uphold the findings of the Page 7 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022 C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 Tribunal that the accident occasioned on account of sole negligence on the part of driver of Maruti Car. The contention of the Insurance Company that Maruti Car was not involved in the accident, and therefore, the Insurance Company of the Maruti Car is not liable for the payment of compensation, does not merit acceptance.
6.2 In relation to compensation, admittedly the deceased was holding degree of Bachelor of Engineering and was preparing for overseas higher studies. His certificates of excellence are on record. Most importantly, in the deposition of co-student Viral Hirpara at Exh.35, had stated that in the campus placement, he recruited with the salary of Rs.10,000/-. At the time of deposition in the year 2009, he stated that at present, he is earning monthly salary of Rs.37,500/-. Further the certificate of excellence at Exh.50 to 58 shows that deceased was having bright future. Considering the education qualification and the deposition of his co-student at Exh.35, in our opinion, the deceased would have earned at least Rs.7,000/- per month. Therefore, we deem it appropriate to assess the income of the deceased at Rs.7,000/- p.m. As the deceased was 21 years of age at the time of accident, he would be entitled for 40% rise towards future prospective income, 1/3 would be deducted towards personal expenses and considering his age, multiplier of 18 would be applicable.
7. Therefore, we assess the dependency loss of the deceased as under:
Page 8 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022C/FA/1760/2012 JUDGMENT DATED: 20/09/2022 "Rs.7,000/- per month (income) + 40% prospective income = Rs.9,800 - 3,267/- (1/3 towards personal expenses) = Rs.6,533/- X 12 (p.a.) = Rs.78,396/- X 18 Multiplier (as the age of the deceased was 21 years) = Rs.14,11,128/-."
7.1 Further, in view of decisions of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram reported in 2018 (18) SCC 130, United India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, as the deceased was survived by three dependents, the claimants would be entitled to Rs.40,000/- each (Rs.40,000/- X 3 = Rs.1,20,000/-) (parental, and spousal) towards loss of consortium. In view of decisions of Hon'ble Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211 and National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680, Rs.15,000/- each would be appropriate towards loss of estate and funeral expenses.
8. Therefore, the claimants are entitled for the total compensation as under:
Particulars Amount (Rs.)
Dependency Loss 14,11,128/-
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
Loss of consortium 1,20,000/-
(for three dependents Rs.40,000/- each)
Total 15,61,128/-
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C/FA/1760/2012 JUDGMENT DATED: 20/09/2022
The claimants are entitled for the total compensation of Rs. 15,61,128/-.
9. For the reasons aforestated, following order is passed.
ORDER
(i) Appeal of the Insurance Company is dismissed and Cross Objections of the original claimants are partly allowed.
(ii) The appellants - claimants would be entitled to total compensation of Rs.15,61,128/-. As the Tribunal has awarded an amount of Rs.11,49,084/-, the respondent - Insurance Company shall deposit the balance amount of compensation of Rs.4,12,044/- (Rs. 15,61,128 - Rs. 11,49,084) with 6% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of eight weeks from the receipt of the order.
(iii) The rest of the judgment and award passed by the learned Tribunal has remained unaltered.
(iv) Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
Sd/-
(A.J.DESAI, J) Sd/-
(MAUNA M. BHATT,J) T. J. Bharwad Page 10 of 10 Downloaded on : Mon Sep 26 20:24:28 IST 2022