Gujarat High Court
The New India Assurance Company Ltd vs Kankuben Wd/O Gopalbhai Punambhai ... on 1 April, 2025
NEUTRAL CITATION
C/FA/3840/2024 ORDER DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3840 of 2024
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THE NEW INDIA ASSURANCE COMPANY LTD.
Versus
KANKUBEN WD/O GOPALBHAI PUNAMBHAI CHARAN & ORS.
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Appearance:
MR YOGI K GADHIA(5913) for the Appellant(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Defendant(s) No. 8
NOTICE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Yogi Gadhia for the appellant. Though served, none appeared for and on behalf of the respondent Nos.1 to 7 while learned advocate Mr. Deepak Sanchela appearing for respondent No.8 remained absent. Perused the record.
2. The challenge in the present appeal is by the appellant -
original opponent No.3 - insurance company challenging the judgment and award dated 30.3.2024 passed by learned Motor Accident Claims Tribunal (Aux), Halol in M.A.C.P. No.240 of 2021.
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NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined
3. The facts in brief of the case are as under:
* On 20.7.2021, deceased Gopalbhai Punambhai Charan was going with his buffaloes on side of Halol road for grazing them and when he reached near Sevak Farm, an ambulance bearing registration No.GJ-23V-8999 came from opposite direction in a rash and negligent manner and dashed with one of his buffaloes from behind. Resultantly, the deceased sustained serious injuries and succumbed. * Claimants being the legal heirs of the deceased filed claim petition for a compensation of Rs.32,00,000/- from the opponents. Opponents were served with summons. Opponent nos.1 and 2 contested the claim petition by filing Written Statement at Exh.9 while the claim petition was resisted by insurance company - respondent No.3 by filing Written Statement at Exh.16 and denied its liability. After framing of issues, claimant No.1 - widow of deceased submitted Page 2 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:04 IST 2025 NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined her deposition at Exh.18 and produced FIR, Panchnama, PM report and documents to substantiate income of deceased.
* After considering the evidence, learned Tribunal partly allowed the claim petition by directing opponents to pay an amount of Rs.25,06,200/- to the claimants with interest @ 9% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award, the insurance company - appellant has filed the present appeal.
4. Learned advocate for the appellant - insurance company has submitted that the deceased was not properly walking on the road which contributed in the accident. It is also submitted that in absence of documentary evidence with regard to income, learned Tribunal has considered notional income @ Rs.12,000/- per month. It is further submitted that as per the case of the claimant, Page 3 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:04 IST 2025 NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined he was doing farming, animal husbandry work and business of selling milk. Since the date of accident is 28.7.2021, rates of minimum wages prevailing at the relevant point of time was Rs.9,053/-. It is also submitted that as per the PM report, the age of deceased was 33 years whereas as per the medical certificate deceased was aged about 35 years. Learned Tribunal has considered 35 years of age of the deceased which is against the documentary evidence of Aadhaar Card which was found by the appellant after the pronouncement of the impugned judgment and award. As per the Aadhaar Card, deceased was aged about 41 years of age. Except above submissions, no other submissions are canvassed.
5. It appears from the record that deceased was doing farming, animal husbandry and business of selling of milk and was not having any documentary evidence to substantiate the earning of Rs.15,000/- per month. Learned Tribunal considered the notional income of deceased @ Rs.12,000/-. In catena of decisions, it has Page 4 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:04 IST 2025 NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined been held that in absence of any documentary evidence with regard to income of deceased, yardstick be taken is the rates of minimum wages prevailing on the date of accident. As per the ratio of minimum wages prevailing on the date of accident, income would be assessed @ Rs.9,053/- as an unskilled person.
6. Considering the said ratio, income of the deceased would be assessed @ Rs.9,053/- per month. As per the evidence on record, learned Tribunal has considered the age of deceased @ 35 years. Medical certificate also supports the age of deceased as 35. In the background of the above facts, the impugned award is required to be modified.
7. It is pertinent to note that the contention of 41 years is without any base and the age mentioned in the Aadhaar Card is not a conclusive proof of evidence and more particularly, when such evidence was not placed before the learned Tribunal for its consideration, I am of the view that the age of deceased which is considered by Page 5 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:04 IST 2025 NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined learned Tribunal is as per the medical certificate and does not require any interference.
8. Looking to the age of deceased at the time of accident, prospective income is to be added to the extent of 40% on Rs.9,053/- as per the decision of Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680.
9. In view of the above facts and circumstances, the claimant is entitled to following amount of compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income : 18,24,960/-
Income per month 9053
Prospective Income (40%)
9053+3621 12674
1/4th Deduction:
Rs.12674 - 3169 9505
Rs.9,505/- X 12 X 16 multiplier
2. All Other Heads 77,000/-
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NEUTRAL CITATION
C/FA/3840/2024 ORDER DATED: 01/04/2025
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Total Compensation 19,01,960/-
(-) Awarded Amount Rs.25,06,200/-
Excess Compensation / Refund Rs.6,04,240/-
10. Therefore, total amount of compensation would come to Rs.19,01,960/-, which is required to be awarded with interest accrued thereon from the date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has awarded Rs.25,06,200/- to the claimant, therefore, Rs.6,04,260/- (Rs.25,06,200/- - Rs.19,01,960/-) is required to be refunded with 9% p.a. interest.
11. For the reasons recorded above, the following order is passed:
[A]. The present appeal is allowed accordingly in above terms.
[B]. The Insurance Company is entitled to refund for an amount of Rs.6,04,240/- with accrued interest thereon from the date of claim Page 7 of 8 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:04 IST 2025 NEUTRAL CITATION C/FA/3840/2024 ORDER DATED: 01/04/2025 undefined petition till its realisation before the concerned Tribunal, within a period of four weeks from the date of receipt of this order.
[C]. The Tribunal shall refund the excess to the appellant by `Account Payee Cheque' / RTGS / NEFT, after proper verification and after following due procedure.
[D]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith. No order as to costs.
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