Gujarat High Court
National Insurance Company, Regional ... vs Ashaben Wd/O Mukeshkumar Kanaiyalal ... on 10 January, 2025
NEUTRAL CITATION
C/FA/4937/2010 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4937 of 2010
With
R/CROSS OBJECTION NO. 83 of 2011
In R/FIRST APPEAL NO. 4937 of 2010
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NATIONAL INSURANCE COMPANY, REGIONAL OFFICE AT
Versus
ASHABEN WD/O MUKESHKUMAR KANAIYALAL LUHANA & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 9
MR HENIL M SHAH(10677) for the Defendant(s) No. 1,2,3,4,5
RULE SERVED for the Defendant(s) No. 10,11,6,7,8
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 20.10.2010 passed by the Motor Accident Claims Tribunal, Godhara in Motor Accident Claim Petition No.535 of 2000. The claimants have filed cross-objections in the first appeal.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 01.02.2000, deceased Mukeshkumar was travelling along with his friends in Jeep No.GJ-20-A-259 and when they reached near the place of accident, one Tempo No.GJ-6-W-6646 came in rash and negligent manner and dashed with the jeep and upon Page 1 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined occurrence of the accident, deceased sustained fatal injuries and later on died.
3. Heard learned advocate Mr.Dakshesh Mehta appearing for the appellant - Insurance Company, learned advocate Mr.Henil Shah appearing for the original claimants who have filed cross- objections and learned advocate Mr.Anal Shah appearing for the respondent - Oriental Insurance Company Limited.
4. Learned advocate Mr.Dakshesh Mehta appearing for the appellant - Insurance Company mainly argued on two aspects that the learned Tribunal has committed an error in fastening liability upon Insurance Company of Jeep No.GJ-20-A-259. He submits that deceased was travelling as fare paying passenger in the jeep at the time of road accident. The policy of the jeep was private car policy and does not permit to use for hire and reward. Since the owner of the jeep has breached the terms and conditions of the policy and used the jeep for the purpose of transporting passengers, the Insurance Company cannot be held liable to pay the compensation. The second limb of submission of learned advocate Mr.Mehta is that widow of deceased entered into witness box and admitted that deceased was earning Rs.1500/- per month, yet learned Tribunal assessed the income of deceased at Rs.4,000/- per month and calculated the compensation. Therefore, he submits to rectify both error by allowing this appeal and exonerate the Insurance Company from liability to pay the compensation.
5. Per contra, learned advocate Mr.Henil Shah for the claimants would submit that the Insurance Company has Page 2 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined miserably failed to prove that the deceased was travelling as fare paying passenger. Therefore, learned Tribunal has rightly fastened liability upon the Insurance Company believing that there is no breach of the terms and conditions of the policy. Secondly, he would submit that learned Tribunal has rightly taken up Rs.4,000/- monthly income as the accident took place on 01.02.2000 and considering the rate of minimum wage, learned Tribunal has taken up Rs.4000/- monthly income. He would submit that deceased was survived by six dependents, therefore, the learned Tribunal ought to have deducted 1/4 th, instead of 1/3rd for personal and pocket expenses. He also submits that learned Tribunal ought to have granted 40% towards loss of future prospects. He would further submit that compensation under non-pecuniary heads are not granted in accordance with law laid down in case of National Insurance Company Limited vs. Pranay Sethi - 2017 (16) SCC 680. Therefore, he submits to recalculate the entire compensation grantable to the claimants.
6. Learned advocate Mr.Anal Shah for the Oriental Insurance Company Limited would submit to pass necessary orders.
7. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road Page 3 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.
8. Having heard learned advocates for both sides, what could be noticed that learned Tribunal in case of composite negligence held both wrong doer negligent upto 50% for causing road accident and also apportioned the liability in operative part of order to pay the compensation. Such finding of the learned Tribunal is in contravention to the judgment of Hon'ble Supreme Court in case of Khenyei vs. New India Assurance Company Page 4 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined Limited - 2015 (9) SCC 273. Learned Tribunal may apportion the liability of the wrong doer in the reasoning part of the judgment but since it is a case of composite negligence, claimant has choice to recover the compensation from any of the tortfeasor jointly and severally or from both and therefore in operative part, learned Tribunal ought to give liberty to claimant to entire amount of compensation from any of the tortfeasor. Addressing the first contention raised by learned advocate Mr.Mehta that deceased was travelling as fare paying passenger, it is to be noted that the Insurance Company did not lead any evidence to buttress such contention. The widow of the deceased entered into witness box at Exhibit-54 and she reiterated the facts stated in the claim petition. Perusing the cross-examination made by the Insurance Company, the suggestion made by the Insurance Company that her husband was travelling in the jeep after paying fare has been denied. Except such evidence, no other evidence is produced on record. In absence of any other evidence, if we peruse the FIR at Exhibit-45, it indicates that deceased was travelling with some goods in the jeep and no where it is stated that he was fare paying passenger. Apart from FIR, there is no other evidence on record which shows and establish that deceased was travelling as fare paying passenger in the jeep and in absence of any concrete evidence, the contention raised by the appellant does not survive. Second contention was that widow of deceased admitted that her husband was earning Rs.1500/- in her deposition. I have failed to read such contention in the deposition of widow at Exhibit-54. In her chief examination, she has categorically stated that her husband was in the business of selling milk and he was earning Page 5 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined Rs.6,000/- per month from said business. In cross-examination, a question was put that her husband was earning Rs.1500/-, but the said suggestion has been denied by the claimant. Again submission of learned advocate Mr.Dakshesh Mehta failed to substantiate as widow of deceased did not accept that her husband was earning Rs.1500/-.
9. Learned Tribunal has taken up Rs.4000/- on the belief that deceased was agriculturist as well as he was selling milk and was earning from said business. It is true that claimant has not produced any documentary evidence but since the deposition of widow of deceased has not been seriously challenged, adoption of Rs.4000/- by the learned Tribunal as income of the deceased by no means is excessive amount and therefore same is maintained. The deceased was 32 years at the time of road accident and he has no permanent source of income and considering the judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra), 40% requires to be granted towards loss of future prospects and multiplier of 16 would be applicable. Deceased was survived by six dependents and therefore, 1/4 deduction requires to be made for personal and pocket expenses and each claimant would be entitled to get Rs.48,400/- towards consortium. For the loss of estate and funeral expenses, Rs.18,150/- requires to be granted to the claimants. Since the deceased was survived after road accident, Rs.25,000/- requires to be granted for pain, shock and suffering. Learned Tribunal granted interest at 7.5% p.a. and same is maintained.
Page 6 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025 NEUTRAL CITATION C/FA/4937/2010 ORDER DATED: 10/01/2025 undefined 9.1 Therefore, re-computation of total compensation would be
as under, which the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 8,06,400/-
=Rs.4,000/- + Rs.1600/- (40% rise)
=Rs.5,600/- minus ¼ for personal exp.
=Rs.4,200/- x 12 months x 16 multiplier
Pain, Shock and Suffering 25,000/-
Loss of estate 18,150/-
Funeral Expenses 18,150/-
Consortium (Rs.48,400/- x 6 dependents) 2,90,400/-
Total 11,58,100/-
Less: Amount already awarded by Tribunal 8,06,000/-
Additional amount which is awarded 3,52,100/-
10. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs.3,52,100/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
11. For the reasons recorded above, the following order is passed :
11.1 The appeal filed by the appellant- Insurance Company is dismissed. The cross-objections filed by the claimants is allowed to the aforesaid extent. The claimants would be entitled to get enhanced compensation of Rs.3,52,100/-
with 7.5% p.a. interest from the opponents jointly and severally, from the date of petition till realization.
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11.2 Both the Insurance Companies are directed to deposit the enhanced amount with interest as stated herein above as per their share in negligence determined by the learned Tribunal, within a period of six weeks from the date of receipt of this order.
11.3 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.
11.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
11.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 8 of 8 Uploaded by GAURAV J THAKER(HC00951) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:17 IST 2025