Gujarat High Court
Sbi General Insurance Company Limited vs Regal Shipping Pvt Ltd on 15 April, 2025
NEUTRAL CITATION
C/FA/33/2021 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 33 of 2021
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2025
In R/FIRST APPEAL NO. 33 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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SBI GENERAL INSURANCE COMPANY LIMITED
Versus
REGAL SHIPPING PVT LTD & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 2,3,4,5,6,7
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 15/04/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award dated 15.06.2020 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in M.A.C.P No.247 of 2014.
2. Heard learned advocate Mr. Vibhuti Nanavati for the appellant, learned advocate Mr. Nishit A. Bhalodi for the Page 1 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined respondent Nos.2 to 7. Though served, none appeared for respondent No.1.
3. The brief facts of the case are as under:
3.1. On 02.05.2014, deceased-Junas Saicha was going on Motorcycle bearing Registration No.GJ-12-BN-6947 in a slow and moderate speed when he reached near Anjar Police Station near Jagavladia, Mundra Adipur Highway road, a truck bearing Registration No.GJ-12-Z-3814 being driven by opponent No.1 came in rash and negligent manner lost control over the steering and went on wrong side of the road and dashed with Motorcycle. Deceased sustained serious injuries and was admitted in G.K. General Hospital, Bhuj and ultimately, on 15.05.2014, deceased died because of accidental injuries. FIR was lodged against the driver of truck. Legal heirs of the deceased filed claim petition claiming compensation of Rs.25 lakhs. Opponent Nos.1 and 2 did not contest the claim application even though they were served. Opponent No.3 Page 2 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined appeared and filed Written Statement at Exhibit-22 and denied liability to pay compensation. Claimant No.1-father of the deceased examined himself at Exhibit-26 and produced FIR, Panchnama, discharge summary, inquest panchnama, fisherman card of deceased issued by Government of India and certificate of registration for sailing vessel bearing Registration No.KDL921 in the name of claimant No.1 issued by Government of India in support of claim petition. After considering the evidence on record, learned Tribunal partly allowed the claim application by awarding compensation of Rs.18,67,000/- with 9% interest from the date of petition till realization.
3.2. Being aggrieved and dissatisfied with the impugned judgment and award, appellant-Insurance Company has challenged the quantum awarded by learned Tribunal before this Court.
4. Learned advocate for the appellant has submitted that Page 3 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined learned Tribunal has failed to appreciate the fact that claimants have failed to establish income of deceased at the time of accident. It is further submitted that the assessment of Rs.10,000/- as monthly income of deceased is without any base and against the rates of minimum wages which were prevailing on the date of accident. It is further submitted that though claimants have claimed income of deceased at Rs.20,000/- per month, the claim petition was originally filed as an indigent person and in the application they have stated income of claimant as Rs.4,000/- per month. When claimants are stating income of deceased at Rs.4,000/- per month, claim of Rs.20,000/- per month as the income of deceased is not believable. It is further pointed out that by producing a fisherman card of deceased issued by the Government of India, income of deceased cannot be assumed as Rs.10,000/- per month. It is further submitted that claimants are parents, brothers and sisters of deceased. As per the claim petition claimant Nos.3, 4 and 5 are doing labour work and claimant Page 4 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined Nos.1, 2 and 6 being retired they are carrying on household work respectively, it cannot be said that there is loss of dependency. It is further submitted that claimants have failed to establish that fishing activities were only carried out by deceased, whereby family has suffered dependency loss on demise of their son.
5. Per contra, learned advocate for the claimant-respondent has submitted that father of deceased was having a boat bearing Registration No.KDL921 and because of old age of father of deceased, deceased was doing fishing work by taking his boat in the sea. It is also submitted that deceased was earning Rs.2,000/-
daily. After deducting expenses, net income of deceased was Rs.20,000/- per month. It is further submitted that Exhibit-42 is a certificate of vessel which is issued in the name of claimant No.1 and deceased was also holding a fisherman card issued by the Government of India. When the evidence on record is sufficient in establishing the fact that deceased was dong fishing Page 5 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined work in the sea, learned Tribunal has rightly assessed income of Rs.10,000/- per month. It is further submitted that claimants are dependent and they are the legal representatives of the estate of deceased. It is further submitted that in the cross-examination, appellant has not raised the question of dependency and the question of dependency has gone unchallenged. It is further submitted that with regard to income of deceased, in absence of any documentary evidence, learned Tribunal has rightly considered the income of deceased and therefore, no interference is required. It is further submitted that the impugned judgment and award is just and reasonable.
6. Having considered submissions of learned advocates for the parties and perused record and proceedings, it transpires that deceased was holding a fisherman card issued by the Government of India which is produced at Exhibit-41. It is also culled out from the record that claimant No.1 being father of deceased was also holding a certificate of registration of sailing Page 6 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined vessel bearing Registration No.KDC921 issued by the Government of India which is produced at Exhibit-42. However, there was no material with regard to income of deceased at the time of accident. In catena of decisions, law laid down by the Hon'ble Apex Court is that in the cases where there is no documentary evidence with regard to income, the yardstick for considering the income is rates of minimum wages prevailing on the date of accident. In the present case, the date of accident is of 02.05.2014, if the prevailing rates of minimum wages are considered, income of deceased would come to Rs.6,100/- per month. The decision which has been relied upon by learned advocate for respondent in the case of Gurpreet Kaur & ors. versus United India Insurance Company Ltd. reported in 2022 LiveLaw (SC) 821, it was a case where positive evidence was led before the learned Tribunal, however, learned Tribunal did not consider that evidence and applied rates of minimum wages. In view of the background of those facts in paragraph No.9, the Hon'ble Apex Court has observed in the said decision as under: Page 7 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025
NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined "In our considered view, the Tribunal's approach is quite justified in law as well as on facts. In the summary proceedings where the approach of the Tribunal's determination must be in conformity with the object of the welfare legislation, it was rightly held that the monthly income of the deceased could not be less than Rs.25,000/-. The reason assigned by the High Court to reduce the monthly income of the deceased is totally cryptic and has no rationale. The Notification of Minimum Wages Act can be a guiding factor only in a case where there is no clue available to evaluate monthly income of the deceased. Where positive evidence has been led, no reliance on the Notification could be placed, particularly when it was nobody's case that the deceased was a labourer as presumed by the High Court."
7. The reason assigned by the High Court to reduce monthly income of deceased was found irrational and there was positive material with regard to the fact that deceased was working as a contractor for lifting of earth and a fact which came on record that deceased had purchased a Tractor and for that he had taken loan from Kotak Mahindra Bank. Deceased was also found paying monthly installments towards loan of tractor and the entire loan liability was discharged.
8. In the present case, undisputedly, the vessel was of the Page 8 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined ownership of claimant No.1 and except a bare averment that deceased was dong fishing work in the sea and was earning Rs.25,000/- per month, no other cogent and convincing materials is found on record. In such circumstances, learned Tribunal ought to have considered the rates of minimum wages prevailing on the date of accident. In the process of guesswork, learned Tribunal ought not to give undue weightage to the fact that deceased was doing fishing work and was drawing Rs.10,000/- per month. Even if fishing work is a specialized work, the evidence to that effect is required to be led by claimants that deceased was the only specialized sailor of the boat and was having a specialized knowledge with regard to fishing activities. When the claimants are silent on the aspect of specialized work, assessment of Rs.10,000/- per month as income is unreasonable.
9. It also appears from the cross-examination that there is no contradictions surfacing on record with regard to dependency. Claimant No.1 has also denied the suggestion which was put to Page 9 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025 NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined him in the cross-examination that family was not dependent upon the earnings of deceased. In such background, contentions of the Insurance Company that claimants are not legal representatives, cannot be accepted.
10. In view of the above discussion, Insurance Company is entitled to refund the following amount of compensation;
Sr. Name of the Head Amount in Rs.
1 Future Loss of Income
Income per month Rs.6,100/-
Prospective Income (40%)
Rs.6,100/- + Rs.2,440/- Rs.8,540/-
Deduction towards personal
expenses 1/2nd 9,22,320/-
Rs.8,540/- less Rs.4,270/- Rs.4,270/-
Rs.4,270/- x 12 x 18
2 Loss of estate 18,150/-
3 Funeral expenses 18,150/-
4 Loss of consortium
Rs.48,400/- x 2 96,800/-
5 Medical expenses 3,00,000/-
6 Pain, shock and suffering 25,000/-
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NEUTRAL CITATION
C/FA/33/2021 JUDGMENT DATED: 15/04/2025
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Total 13,80,420/-
Less amount awarded by tribunal 18,67,000/-
Excess refund amount 4,86,580/-
11. The present First Appeal is partly allowed. The judgment and award dated 15.06.2020 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in M.A.C.P No.247 of 2014, is modified to the aforesaid extent.
12. Lastly, it is informed by learned advocate for the appellant that out of the total amount of compensation deposited by the Insurance Company, 30% has been withdrawn by the claimants and remaining 70% is lying in the Fixed Deposit. It is further submitted that after refund of Rs.4,86,580/- with interest accrued thereon, to the Insurance Company, remaining amount of compensation be disbursed in favour of claimants by NEFT / RTGS mode and after following due procedure.
13. While making the payment, the Tribunal shall deduct the Courts Fees, if not paid, in accordance with rules / law. Page 11 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025
NEUTRAL CITATION C/FA/33/2021 JUDGMENT DATED: 15/04/2025 undefined
14. In view of the order passed in the main matter, connected Civil Application does not survive and the same stands disposed of accordingly. Record and proceedings, if any, be returned back to Tribunal.
(D. M. DESAI,J) RINKU MALI Page 12 of 12 Uploaded by RINKU MALI(HC01574) on Thu May 01 2025 Downloaded on : Sat May 03 06:52:30 IST 2025