Gujarat High Court
Sitaben Prabodhkumar Parmar vs National Insurance Co Ltd on 9 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2670/2011 JUDGMENT DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2670 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
No
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SITABEN PRABODHKUMAR PARMAR & ORS.
Versus
NATIONAL INSURANCE CO LTD & ORS.
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Appearance:
MR AR PATEL(5838) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present appeal is filed by the appellants- original claimants against the judgment and award dated 06.09.2010 passed by the learned Motor Accident Claims Tribunal (Aux.), Fast Track Court No.3 at Vadodara in Page 1 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined Motor Accident Claim Petition No.1804 of 1997, wherein and whereby, the learned Tribunal has awarded the total amount of Rs.5,01,229/- towards compensation with 7.5% interest per annum.
2. Heard learned advocate Mr.A.R.Patel for the appellants-original claimants and learned advocate Mr.Vibhuti Nanavati for respondent - Insurance Company.
3. Brief facts narrated in the present First Appeal are as under:-
3.1 On 10.10.1994, deceased Prabodhkumar Ramjibhai Parmar was traveling in a Bus bearing Registration No.AS-01-D-2763, on National Highway No.37 Gauhati- Jorhat Highway. Opponent No.1 was driving the said Bus. Opponent No.2 is the owner of the Bus. The Bus driver was driving the Bus rashly and negligently, resultantly he lost control over the steering and at about 2.00 a.m. midnight, the Bus overturned. Deceased Page 2 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined sustained serious injuries and was taken to Nazira dispensary for treatment. Thereafter, he was shifted to another hospital at Sibsagar, at 11.00 p.m., deceased succumbed because of accidental injuries. 3.2 The heirs of deceased Prabodhkumar Parmar filed a claim petition claiming compensation of Rs.37,00,000/- from the opponents including the Insurance Company. Opponent No.1 did not contest the application.
However, opponent Nos.2 and 3 appeared and filed Written Statement at Exhibit 8 and 76 respectively. After considering the evidence and material placed on record, the learned Tribunal partly allowed the application and ordered opponent Nos.2 and 3 i.e. owner and Insurance Company of Bus to pay Rs.5,01,229/- to the claimants with interest @ 7.5% per annum from the date of petition till realization with cost.
3.3 Being aggrieved and dissatisfied with the quantum of compensation, original claimants have filed a Page 3 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined present appeal for enhancement of compensation.
4. Learned advocate Mr.A.R.Patel for the appellants submitted that deceased was serving with Oil and Natural Gas Commission (ONGC) as a Deputy Superintending Geophysicist (Well) at Well Logging Section, Nazira, Assam, at the time of accident. Deceased was aged about 49 years at the time of accident. The compensation awarded by the learned Tribunal is less and has also not taken into consideration the proper income of the deceased. It is submitted that learned Tribunal has erred in considering the net income of deceased at Rs.5,032/- per month. The net income as per the salary slip at Ex. 95 is Rs.9,899/-. The Tribunal has considered deduction of Rs.4,067/-. As per the settled position of law only income tax is to be deducted from the gross salary. As per the salary slip income tax amount is Rs.1,250/-. Hence, the net income of deceased would come to Rs.8,649/- instead Page 4 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined of 5,032/- per month (Annual income of Rs.8,649 x 12 = Rs.1,03,788/-).
4.1 It is further contended that as per the evidence of the witness from ONGC at Ex.93/A and Ex.94, the deceased would have been benefited with the revised pay scales from Rs.5,200/- to Rs.8,786/-. Considering the ratio laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, adding 30% prospective income, net income comes to Rs.31,136/- (Rs.1,03,788/- x 30%) and a revised annual income of Rs.1,34,924 (Rs.1,03,788/- + Rs.31,136/-). Deducting 1/3rd personal expenses of the deceased would come to Rs.44,975/-. Future loss of dependency would come to Rs.89,949-/- (Rs.134,924/- - Rs.44,975/-). 4.2 The age of the deceased was 49 years, therefore, multiplier of 13 would be applicable. Hence, the total dependency loss would come to 89,949 x 13 = Page 5 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined Rs.11,69,337/-. Additional amount under the head of consortium of Rs.1,00,000, Funeral expenses of Rs.25,000/-, Loss of love and affection of two sons at Rs.2,00,000/- and Loss of love and affection of widow at Rs.2,00,000/- be awarded. The claimants are also entitled to loss of estate at Rs.50,000/-. Thus, as per Mr.Patel, learned advocate for the appellants, the total amount which the claimants are entitled to is Rs.17,44,337/- with interest @ 7.3 %.
5. Per contra, learned advocate Mr.Vibhuti Nanavati for respondent No.1-Insurance Company has submitted that learned Tribunal has awarded just and reasonable compensation on the basis of evidence. It is submitted that the evidence of witness Mr.Narendrakumar Ranchodbhai Gandhi examined at Ex.93/A is not trustworthy as the document which has been produced at Ex.94 is not an authentic document from ONGC. The said Page 6 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined witness has not established that alleged revised pay scale was paid to the deceased as per the deposition of the said witness. The revision in the pay scale was implemented from 01.01.1992. When the witness is not able to establish the alleged fact of revision in pay scale, the learned Tribunal has considered the income which is reflected in Ex.95 which is a pay slip of deceased. However, learned advocate for the respondent has fairly submitted that for the purpose of assessing the salary of deceased only income tax can be deducted and no other deduction can be looked into. Thus, deducting an income tax of Rs.1250/- from the gross salary of Rs.9,899/- the net monthly salary comes to Rs.8,649/-.
5.1 It is further submitted that learned Tribunal has considered an addition of prospective income at 30%. However, the multiplier applied by the learned Tribunal is against the settled principles of law and looking to the age Page 7 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined of the deceased, correct applicable multiplier would be 12.
6. We have considered the submissions canvassed by learned advocates for the respective parties and perused the records and proceedings. The learned Tribunal, in our opinion, made an error in assessing the monthly salary of the deceased. From the gross salary only income tax is required to be deducted and no other deductions to be looked into. Applying the said principle, as per Ex.95 which is a pay slip, the gross salary is Rs.9899/- and deducting Rs.1250/- of income tax, the net salary of deceased would come to Rs.8,649/- per month and Rs.8649x12 = Rs.1,03,788/- per annum. 6.1 Considering the age at the time of accident, as per the propositions laid down in the case of Pranay Sethi (supra), adding 30% prospective income, the net income comes to Rs.31,136/- (Rs.1,03,788/- x 30%). Revised Page 8 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined annual income shall be Rs.1,34,924/- (Rs.1,03,788/- + Rs.31,136/-). 1/3rd personal expenses of the deceased would come to Rs.44,975/- and deducting the same from income, the future loss of dependency would come to Rs.89,949/- (Rs.134,924/- - Rs.44,975/-). 6.2 Considering the age of the deceased as 49 years, at the time of accident, multiplier of 13 is applicable. Therefore, annual dependency loss comes to Rs.11,69,337/- (Rs.89,949/- x 13).
6.3 So far as the revised pay scale is concerned, the claimants could not establish that the deceased was getting a revised pay scale and he was entitled to revised net income at Rs.12,235/- per month as submitted by learned advocate for the appellants. The witness at Ex.93/A also did not say anything on the fact that the deceased was drawing a salary of Rs.12,235/- at the time of accident. While considering the salary of the deceased, the salary on Page 9 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined the date of retirement is not the criteria in the background of the fact that the income on the date of accident has to be considered for determining the future dependency loss. When the net income is being added by additional 30% in the salary, the aspect of future loss is being considered and therefore the salary which deceased might have received at the time of retirement is not the correct mode of calculation.
6.4 The learned Tribunal has granted compensation to the original claimants under the different heads as under:-
Rs.4,76,229/- Towards future loss of income Rs. 10,000/- Towards loss to the estate Rs. 10,000/- Towards loss of consortium Rs. 5,000/- Towards funeral expenses Rs.5,01,229/- Total 6.5 Thus, the amount to be granted as compensation under the different heads to the original claimants shall be Page 10 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined as under:-
Loss of dependency Rs.11,69,337/-
Loss of consortium Rs. 1,45,200/-
(Children & Widow)
Rs.48,400x2 + Rs.48,400
Loss of estate Rs. 18,150/-
Loss of funeral expenses Rs. 18,150
Total: Rs.13,50,837/-
Amount awarded by the Rs. 5,01,229/-
Tribunal (-)
Enhanced amount Rs. 8,49,608/-
7. For the reasons recorded above, following order is passed.
7.1 The appellants-original claimants are entitled to enhanced amount of compensation of Rs.8,49,608/- @ 7.3% per annum from the date of claim petition till realization from present respondent No.1-Insurance Company.
7.2 The Insurance Company is directed to deposit the enhanced amount of compensation with interest as Page 11 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined above within a period of six months from the date of receipt of this order.
7.3 Upon such deposit, it will be open to the appellants-original claimants to approach the learned Tribunal for appropriate orders for withdrawal. 7.4 The learned Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the original claimants, by account payee cheque, after proper identification and verification while following due procedure.
7.5 While making the payment, the learned Tribunal shall deduct the Courts fees, if not paid, in accordance with the prevailing rule.
7.6 The present First Appeal is partly allowed. The impugned judgment and award dated 06.09.2010 passed by Page 12 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025 NEUTRAL CITATION C/FA/2670/2011 JUDGMENT DATED: 09/01/2025 undefined the learned Motor Accident Claims Tribunal (Aux.), Fast Track Court No.3 at Vadodara in Motor Accident Claim Petition No.1804 of 1997, is modified to the aforesaid extent. Record and proceedings be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 13 of 13 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 29 2025 Downloaded on : Fri Jan 31 23:45:02 IST 2025