Gujarat High Court
Jasodaben Widow Of Jagdishcha-Chandra ... vs Mukeshbhai Ramanbhai Patel on 13 February, 2025
NEUTRAL CITATION
C/FA/4509/2007 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4509 of 2007
With
R/FIRST APPEAL NO. 5287 of 2006
With
R/CROSS OBJECTION NO. 37 of 2009
In
R/FIRST APPEAL NO. 4509 of 2007
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JASODABEN WIDOW OF JAGDISHCHA-CHANDRA KESHAVLAL SHARMA
& ORS.
Versus
MUKESHBHAI RAMANBHAI PATEL & ORS.
==========================================================
Appearance:
MR SANDIP C SHAH(792) for the Appellant(s) No. 1,2,3,4,5
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
MR.VARUN K.PATEL(3802) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/02/2025
COMMON ORAL ORDER
FA No.4509 of 2007 is filed by the org. claimant challenges the judgment and award rendered in MACP No.368 of 2001 dated 01/12/2005 by the learned MACT, Sabarkantha at Himmatnagar awarding compensation of Rs.5,08,600/- with interest at 6% from the date of filing of the petition till its realization holding liable opponents no.1 and 2 and exonerating the opponent no.3 - insurance company. While Cross- Objection No.37 of 2009 is filed by the opponent no.2 of MACP No.368 of 2001 challenging the said judgment and award on the ground of exoneration of the insurance company.
2. While FA No.5287 of 2006 is filed by the insurance company challenging the judgment and award dated 31/01/2006 rendered in MACP Page 1 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined No.407 of 2001 by the learned MACT, Gandhinagar holding appellants liable to pay the compensation of Rs.4,19,000/- with interest at 7.5% from the date of filing of the petition till its realisation.
3. Both the appeals and Cross-Objections are heard and decided together by this common order as they arise out of the self-same road accident.
4. The short facts of the case are that on 17/02/2001 while deceased - Jagdishchandra Sharma who was serving in the Reliance Industries after relieving from his duty was standing at the Chiloda Bus Stand where the tanker bearing No.GJ-8T-4852 came driver thereof was known to the deceased and therefore they were sit in the cabin of the tanker; at that time, the said tanker was driven in the rash and negligent manner resultantly dashed with the another tanker and the deceased succumbed to the injuries.
5. MACP No.368 of 2001 was filed by the heirs of deceased - Jagdishchandra before the MACT, Sabarkantha seeking compensation of Rs.12,51,000/- wherein the learned tribunal after considering the evidence on record has passed the judgment and award as recorded in paragraph 1of this judgment. While MACP No.407 of 2001 came to be filed by the heirs of deceased Jashvantsinh before the MACT, Gandhinagar seeking compensation of Rs.5.00 Lakh wherein the learned tribunal after considering the evidence has passed order of compensation as recorded in paragraph 2 of this judgment.
6. Heard learned advocate Mr.Sandip Shah, for the appellant of FA No.4509 of 2007; learned Senior Counsel Mr.K M Patel, for cross- objector and learned Advocate Mr.Karia for the insurance company who Page 2 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined is permitted to file Vakalatnama in the cross-objection no.37 of 2009 as well and learned Advocate Mr.Hiren Modi for respondents - org. claimants of FA No.5287 of 2006.
7. Learned Advocate Mr.Sandip Shah for the appellant would submit that deceased was travelling in the goods carriage vehicle and there was no fundamental breach of terms and conditions of the policy. He would submit that learned tribunal has granted very lower amount of compensation, as also wrongly exonerated the insurance company. He would refer the policy on record to submit that learned tribunal perhaps has misread the contents thereof wherein Rs.30/- is charged for legal liability for passenger travelling in the cabin of the offending vehicle. He would submit that since the deceased being relative of the driver of the offending vehicle was plying as no fair passenger and premium thereof has also been charged by the insurance company, the exoneration of insurance company from liability to pay compensation is totally erroneous approach on the part of the learned tribunal.
8. Insofar as the enhancement part of the compensation is concerned, learned Advocate Mr.Sandip Shah would submit that tribunal has failed to consider the salary slip of the deceased who was serving in the Reliance Industries. He would submit that learned tribunal has failed to consider the allowance which could be receivable to the deceased at the time of road accident and included in the income of the deceased. He would further submit that in view of the decision in the case of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680], the future prospect granted by the tribunal should be rationalized and considering the age of the deceased, the multiplier of 15 should be made applicable instead of 13. He would further submit that tribunal has only granted Rs.10,000/- for loss of consortium whereas there are total five Page 3 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined persons dependents of the deceased; including the parents and children of the deceased and therefore it is required to be enhanced. He would further submit that tribunal committed error in granting only Rs.5,000/- for loss of estate and funeral expenses which is on lower side and therefore in view of decision in case of, the compensation granted under the non-pecuniary head is required to be increased.
9. Learned Senior Counsel Mr.Patel for the respondent would join the argument of Mr.Sandip Shah on the point of exoneration of insurance company and would submit that by prudent act the owner of the offending vehicle has paid the premium of Rs.30/- purchasing the legal liability of the passenger travelling in the cabin part of the offending vehicle. Learned Senior Counsel Mr.Patel would submit that learned tribunal therefore should avoid the exoneration of the insurance company from liability to pay the compensation and requests the court to pass such order.
10. Learned Advocate Mr.Karia for the insurance company would submit that deceased was travelling in the goods carriage vehicle failed to get out from the schedule of the policy where the insurance company has accepted the premium of Rs.30/- for legal liability of the passenger (Non- fare passenger). However, one of the argument canvassed by him is that though the premium for one person is charged, more than one person was travelling in the cabin of the errant vehicle and therefore it is a case of excessive sitting. Insofar as the aspect of seeking enhancement of compensation is concerned, he has vehemently objected and submitted that learned tribunal has rightly consider the income part of the deceased. In nutshell, he would therefore submit to allow FA No.5287 of 2006.
11. Learned Advocate Mr.Hiren Modi appearing for org. claimants of Page 4 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined MACP NO.407 of 2001 would support the judgment and award rendered in and submit to dismiss the appeal filed by the insurance company.
12. Having heard the learned advocates appearing for the respective parties and examining the impugned judgment and award the error on the part of the learned tribunal, Sabarkantha is noticed of exonerating the insurance company from the liability to pay the compensation in spite of the premium of Rs.30/- for legal liability was charged. If the policy produced at Exh.32 is examined, the insurance company has charged Rs.30/- for the employees (other). What could be further noticed that though the premium for legal liability of the passenger / non fare passenger was charged, the reason best known to the learned tribunal, did not care to refer to the documents produced on record and swayed away by the arguments of learned advocate appearing for the insurance company. Such approach on the part of the learned tribunal is deprecated for ignoring such documents viz., insurance policy and thereby exonerated the insurance company from its liability to pay the compensation. A lot more can be observed; however this Court refrained from making such observations. Accordingly, the finding of the learned tribunal exonerating the insurance company is quashed and set aside.
13. Not only that, the error is continued even while computing the income of the deceased; salary slip of whom is produced at Exh.58. To prove the said fact, PW 2 is examined at Exh.52 and thereby it was proved that deceased was earning Rs.6,110.54 Paise per month at the time of road accident. However, learned tribunal has erred in taking only basic salary and dearness allowance whereas the deceased was receiving other emoluments receivable by him from the company and thereby his salary comes to Rs.6,110.54 Paise. A beneficial reference can be made to the decision in case of Meenakshi vs The Oriental Insurance Co. Ltd [2024 INSC 573] wherein in paragraph 9 held as under:
Page 5 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined "9. Recently in a judgment dated 11 th July, 2024 in National Insurance Company Ltd. v. Nalini and Ors. [Petition for Special Leave to Appeal (C) No. 4230/2019], this Court held that, allowances under the heads of transport allowance, house rent allowance, provident fund loan, provident fund and special allowance ought to be added while considering the basic salary of the victim/deceased to arrive at the dependency factor."
14. Likewise, the learned tribunal has erred in taking the multiplier of 13 as the deceased completed 40 years and in the early of 41 years and therefore considering the decision in case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr [AIR 2009 SUPREME COURT 3104], the multiplier of 15 would be made applicable. It would be worth to mention that as the deceased was serving Reliance Industries, he was having continuous source of income and therefore would be entitled to 30% rise in his income is granted in view of decision in case of Pranay Shethi (supra). Since the number of dependents are more the one-forth deduction towards the personal and pocket expenses is required to be granted.
15. In United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur And Ors. [AIR 2020 SUPREME COURT 3076] the Apex Court has recognized as to grant or approve the compensation for loss of consortium to each member of the deceased. In the present case, tribunal has granted Rs.10,000/- as global amount for loss consortium, lost to estate and funeral and obsequies expenses. Here in the present case, deceased was survived by four dependents including the wife and children. Due to death of deceased each of the family member met with the loss and thus the loss of consortium for spousal, filial and parental is Page 6 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined required to be granted and it is according granted at Rs.48,400/- each for family member of the deceased. The tribunal has also not granted any separate amount for loss of estate and funeral expenses which as per the decision in case of Pranay Sethi (supra) is granted at Rs.18,150/- each.
16. In Kavita Balothiya vs. Santosh Kumar [2024 (0) ACJ 1639] the Hon'ble Apex Court has held that no restriction upon the Court to award compensation exceeding the amount claimed and it is the duty of the tribunal or Court under Section 168 of the MV Act, to award just compensation. Paragraph 5 and 6 thereof reads thus:
"5. Learned counsel for the appellants has brought to our notice the decision of this Court in Mona Baghel &ors. vs. Sajjan Singh Yadav & Ors. in (Civil Appeal @ out of SLP(C) NO.29207/2018 wherein the Court has observed as under:
"The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value.
Our view, is fortified by the decision of this Court in the Case of Ramla and Others Versus National Insurance Company Limited and Others 2019 2 SCC 192, wherein, it is held as under:
"Though the claimants had claimed a total compensation of Rs.25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Page 7 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined Courts are duty-bound to award just compensation. (See the Judgments of this Court in (a) Nagappa v. Gurudayal Singh,
(b) Magma General Insurance Co. Ltd. v. Nanu Ram, (c) Ibrahim v. Raju)"
6. The above decision clearly lays down that there is no restriction upon the court to award compensation exceeding the amount claimed. It is the duty of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) to award just compensation. Since the Act is a beneficial legislation a just compensation is one which is fair and reasonable on the basis of the evidence adduced irrespective of the amount claimed."
17. In Chandra Mani Nanda vs. Sarat Chandra Swain & Anr., [2024 INSC 777] the Hon'ble Apex Court has again reiterated the ratio that it is the duty of the Court to assess the fair compensation and in paragraph 20 has held as under:
"20. An argument is raised by learned counsel for the insurance company that the appellant has initially claimed a sum of 230,00,000/- and since the same having been awarded to him by the High Court, no further enhancement is possible. We cannot accept this argument and it is duly rejected. It is a settled proportion of law, that the amount of compensation claimed is not a bar for the Tribunal and the High Court to award more than what is claimed, provided it is found to be just and reasonable. It is the duty of the Court to assess fair compensation. Rough calculation made by the claimant is not a bar or the upper limit. Reference in this regard can be made to the judgment of this Court in the case of Meena Devi vs. Nunu Chand Mahto".
18. For the foregoing reasons, FA No.4509 of 2007 and Cross- Objection No.37 of 2009 are allowed. Whereas FA No.5287 of 2006 filed by the insurance company is dismissed. In FA No.4509 of 2007, the claimants are entitled to get following re-computed compensation.
Page 8 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025 NEUTRAL CITATION C/FA/4509/2007 ORDER DATED: 13/02/2025 undefined Particulars Amount (Rs.) Loss of Dependency: 10,88,100/-
(Rs.6,200/- Income (-) one-fourth towards personal and pocket expenses (+) 30% future prospect (x) 12
(x) 15 (multiplier).
Loss of consortium (Rs.48,400/- x 5) 2,42,000/-
Loss of Estate & Funeral Expenses 36,300/-
(Rs.18,150/- each)
Total 13,66,400/-
Already awarded by the tribunal 5,08,600/-
Enhanced amount of compensation 8,57,800/-
19. In wake of above, I hold that all the opponents are jointly and severally liable to pay the compensation to the claimants and claimants are entitled to get the total amount of compensation of Rs.13,66,400/- with 6% p.a. interest from the date of filing the claim petition till its realisation. The opponents are held liable to pay the compensation of enhanced amount of Rs.8,57,800/- with interest at the rate of 6% from the date of filing of the petition till its realization. The insurance company is directed to deposit the entire amount of compensation with interest and costs within six weeks from today. It is made clear that if the owner of the errant vehicle who has filed the Cross Objection has deposited entire decreetal amount and it is disbursed to the claimants in full or part, the owner shall be entitled to recover the said amount from the amount to be deposited by the insurance company and; if the amount deposited by the owner is not disbursed to the claimant; then the same shall be refunded back to the owner with the accrued interest thereon lying in the FDR.
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20. Upon such deposit, the Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure and as per the fresh apportionment fixed by the tribunal in case any of the claimant is reported to be expired.
21. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. If order of apportionment is not made by the tribunal, it shall be made while disbursing the amount of compensation.
22. In view of dismissal of FA No.5287 of 2006, if any amount is lying in the FDR, the same shall be ordered to be paid to the claimant/s by any recognized mode of payment.
23. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 10 of 10 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Sat Feb 15 2025 Downloaded on : Mon Feb 17 22:35:07 IST 2025