Gujarat High Court
Icici Lombard General Insurance ... vs Legal Heirs Of Decd. Alabhai Ramabhai ... on 3 April, 2025
NEUTRAL CITATION
C/FA/921/2012 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 921 of 2012
With
R/CROSS OBJECTION NO. 118 of 2012
In
R/FIRST APPEAL NO. 921 of 2012
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ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
Versus
LEGAL HEIRS OF DECD. ALABHAI RAMABHAI BAGDA & ORS.
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Appearance:
ADITI S RAOL(8128) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,2,3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL ORDER
1. The captioned First Appeal is filed by the appellant - Insurance Company and Cross Objections is filed by claimant for enhancement of compensation against the judgment and award dated 29.11.2011 passed by the learned Motor Accident Claims Tribunal (Aux.), Gondal Camp at Dhoraji in MACP No.138 of 2008, wherein the learned Tribunal has partly allowed the claim petition.
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2. Heard learned advocate Aditi Raol for the appellant and learned advocate Mr.Ankit Shah for respondent Nos.1.1 to 1.5. Though served, none appeared for respondent Nos.2 and 3.
3. Brief facts of the case are as under:-
3.1 On 08.03.2008, deceased - Aalabhai was travelling in his own rikshaw bearing registration No.GJ1-
XX-802 from Jamkandorana to Sajadiya near Fofad river bridge on Jamkandorana-Gondal Road, at about 8.00 p.m. at that time, opponent No.1 came from wrong side, driving truck bearing registration No.GJ-9T-7719 in rash and negligent manner and dashed with rikshaw. As a result, deceased died on the spot. An FIR was lodged against the driver of truck.
3.2 Legal heirs of deceased - claimants filed claim petition claiming compensation of Rs.20,00,000/- from Page 2 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined opponents. Notices/summons were served to opponents. Though, Opponent Nos.1 and 2 driver and owner of truck served, neither appeared nor contested the claim petition. Opponent No.3 - Insurance Company appeared and filed Written Statement at Ex.25 and denied its liability. Claimant No.1 filed Examination-in-chief at Ex.29. Claimants produced documentary evidence such as FIR, Panchnama, Inquest Panchnama, Postmortem report, passbook of saving accounts of RDC Bank of deceased, Insurance Letter of LIC and other documents in support of claim petition. After considering the evidence both oral as well as documentary, learned Tribunal partly allowed the claim petition awarding compensation of Rs.9,56,600/- with 9% p.a. to the claimants from the date of petition till realization.
3.3 Being aggrieved and dissatisfied with the impugned judgment and award, appellant - Insurance Company and claimant are before this Court. Page 3 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025
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4. Learned advocate for the appellant has submitted that learned Tribunal has committed an error by holding the driver of truck solely negligent in the occurrence of accident. It is submitted that looking to the Panchnama, at the place of accident, contributory negligence ought to have been assessed at 50% each. The accident was head-on collusion between a rikshaw and truck, therefore negligence ought to have been attributed to both the drivers of vehicles.
4.1 The burden is upon the claimants to establish that the driver of truck was solely negligent and in absence of any evidence, learned Tribunal ought to have considered negligence at the ratio of 50% each. 4.2 It is further submitted that while assessing the income of deceased, learned Tribunal in absence of documentary evidence, assessed income at Rs.6,000/- per Page 4 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined month. Learned Tribunal ought to have considered income of deceased at Rs.4,000/- per month. Looking to the age of deceased which was between 36-40 years at the time of accident and as per the settled law in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 25% may be added to prospective income of the deceased. Claimants are being 5 in numbers, however learned Tribunal has deducted 1/5 towards personal and living expenses which is not in consonance with the law. The multiplier which has been applied by learned Tribunal is also erroneous considering the age of deceased.
5. Per contra, learned advocate for the claimants has supported the judgment and award on the ground of negligence. However, cross objection is filed for enhancement of compensation. It is submitted that, while considering the income of deceased, learned Tribunal has Page 5 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined taken into consideration the Bank Statement as well as other receipts pertaining to premium deduction, payments of installments for the rikshaw and motorcycle. It is further contended that Claimant - widow has stated in the petition that the deceased was earning Rs.12,000/- per month. However, learned Tribunal assessed income of deceased as Rs.6,000/- per month. However, learned Tribunal has failed to consider the prospective income. It is submitted that the age of deceased at the time of accident was between 36-40 years, therefore, 25% to be added as prospective income. Loss of Consortium amount has also not been awarded by the learned Tribunal. The amount of consortium would come to Rs.2,42,000/- (Rs.48,400 x 5). Considering the age of deceased multiplier of 15 would be applicable.
6. So far as negligence is concerned, learned advocate for respondents has submitted that claimants have Page 6 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined not been cross-examined by other side on the question of negligence. More particularly, driver of offending truck did not step into witness box and deposed regarding the question of negligence. In absence of any contrary material, learned Tribunal has rightly held the driver of truck solely negligent. Considering the Panchnama at Ex.33, which indicates that rikshaw was totally damaged and position of vehicles are sufficient evidence to establish the fact that the driver of truck was solely negligent in the occurrence of accident.
7. It is further submitted that, in the Written submissions before the learned Tribunal, appellant has contended that the negligence of deceased - rikshaw driver be assessed at 30% and that of driver of truck be assessed at 70% in the occurrence of accident. Now, before this Court, appellant has changed its stand and contended that the negligence of both the driver of vehicles be considered as 50% each.
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8. I have considered the submissions canvassed by the learned advocates for the respective parties and perused the record and proceedings. The deceased, who was driving rikshaw met with an accident with Truck. Panchnama indicates the position of vehicles. Upon perusal of panchnama, it is found that there was total loos of rikshaw and rikshaw was found on the right side of the road whereas truck was found 10 feet away of the edge of the road. Looking to the damage caused to the rikshaw, learned Tribunal has held driver of truck sole negligent. In addition to the Panchnama, while determining the question of negligence, learned Tribunal has considered other circumstances. Such as driver of truck did not step into the witness box and contradict the claimant on the issue of negligence. In cases where the victim has died in the accident, in absence of any eyewitness, the evidence of driver of offending vehicle is a vital piece of evidence in determining negligence. When the driver of offending Page 8 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined vehicle chooses not to come forward and explain under what circumstances the accident has occurred and who was negligent in the occurrence accident, learned Tribunal has only option to consider FIR, Panchnama and oral depositions of claimant. An adverse inference must be drawn in such type of cases against the driver of offending vehicle when he chooses not to contest the claim petition and allows the claim petition to proceed. Once learned Tribunal comes to a conclusion that offending vehicle was solely negligent in the occurrence of accident, Insurance Company cannot question the attribution of negligence on the part of offending vehicle. It was also the responsibility of the Insurance Company to bring on record contrary material which can led to conclusion that the driver of offending vehicle was either not negligent or not fully negligent.
In the present case, in the absence of contrary evidence, learned Tribunal has rightly considered the Page 9 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined Panchnama, FIR and oral deposition of the claimants. More particularly, on perusal of the cross-examination of claimant No.1, except for general denials, no questions are put to the claimant with regard to negligence. Under such circumstances, I do not find any reason to interfere in the findings of negligence as arrived at by the learned Tribunal.
9. So far as income of deceased is concerned, a presumption was drawn and it was assessed at Rs.6,000/- per month based on the payments of premiums and installments. When material is available before learned Tribunal, the rates of minimum wages should not be considered as a yardstick. The rates of minimum wages can be helpful to the Tribunal as a yardstick to determine the income in the cases where there is no evidence with regard to income of victim.
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NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined In the present case, learned Tribunal has rightly considered the income of deceased at Rs.6,000/- per month and more particularly, learned advocate for claimants has also supported the findings of income arrived at by learned Tribunal. It appears that learned Tribunal has failed to consider the prospective income of deceased which is to be considered as 25% as per the settled law in the case of Pranay Sethi (supra). Claimants being 5 in numbers, learned Tribunal ought to have deducted ¼th under the head of personal and living expenses. Loss of Consortium amount is to be added in the compensation, which comes to Rs.2,42,000/- (Rs.48,400 x
5). Considering the submissions made by learned advocate for the claimants that the deceased was in the age group of 36-40 years, multiplier of 15 is to be applied instead of 16. Page 11 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025 NEUTRAL CITATION C/FA/921/2012 ORDER DATED: 03/04/2025 undefined
10. Considering the overall view of the facts of the case, First Appeal is hereby dismissed. Cross Objection partly allowed.
11. In view of the aforesaid discussions, the claimants are entitled to the following amount of compensation:-
Under the Head of Compensation of Rs.
Future loss of income
Monthly income = Rs. 6,000/-
Prospective income 25%
(Rs.6,000 + 25%) = Rs. 7,500/-
Deduction 1/4
(Rs.7500 x 1/4) = Rs. 1,875/-
Total Income
[Rs.7500 - Rs.1875] = Rs. 5,625/-
(Rs.5625 x 12 x 15) =
Rs.10,12,500/- 10,12,500/-
Conventional amount 20,000/-
Loss of consortium
(Rs.48,400 x 5) = Rs.2,42,000/- 2,42,000/-
Funeral expenses 25,000/-
Grand Total 12,99,500/-
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NEUTRAL CITATION
C/FA/921/2012 ORDER DATED: 03/04/2025
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Less awarded amount of 9,56,600/-
compensation by Tribunal
Rs.9,56,600/-
Enhanced amount 3,42,900/-
(Rs.12,99,500 - Rs.9,56,600/-)=
Interest @7.5%
12. The claimants are entitled to enhanced amount of compensation of Rs.3,42,900/- @ 7.5% per annum from the date of claim petition till realization from Insurance Company.
13. The Insurance Company is directed to deposit enhanced amount of compensation with interest as above within a period of 4 weeks from the date of receipt of this order.
14. Upon such deposit, it will be open to the claimants to approach the learned Tribunal for appropriate orders for withdrawal. The learned Tribunal shall disburse the same after proper identification and verification following due procedure.
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15. While making the payment, learned Tribunal/Court shall deduct the Court Fess, if not paid, in accordance with prevailing Rule.
16. The present Cross objection is partly allowed accordingly. The impugned judgment and award dated 29.11.2011 passed by the learned Motor Accident Claims Tribunal (Aux.), Gondal Camp at Dhoraji in MACP No.138 of 2008, is modified to the aforesaid extent.
17. Record and proceedings, if any, received, be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 14 of 14 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 22:16:32 IST 2025