Gujarat High Court
Bajaj Allianz General Insurance Co. Ltd vs Shivrajsingh Bhavarsing Ravat on 22 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1472/2016 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1472 of 2016
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
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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
Versus
SHIVRAJSINGH BHAVARSING RAVAT & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PUNAM G GADHVI(3724) for the Defendant(s) No. 8
MR YH VYAS(1001) for the Defendant(s) No. 4,5,6
MS KEYA D PATEL(11258) for the Defendant(s) No. 8
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant, Mr. Y.H. Vyas, learned advocate for the respondent Nos.4 to 6 and learned advocate Ms. Keya D. Patel for respondent No.8 at length. Though served, respondent No.2 remained absent while rule Page 1 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined could not be served upon respondent Nos.1 and 3.
2. The brief facts of the case are as under:
* Deceased Narendrabhai Madhubhai Prajapati, on the date of accident i.e. on 25.12.2008 at about 10.30 am while driving on his Hero Honda Motor Cycle bearing registration No.GJ-19N-8082 dashed with a trailer bearing registration No.RJ-06-GA-2174 at Kamrej Cross Road, near Dada Bhagwan Temple, coming from opposite direction. The driver of trailer was driving the vehicle at an excessive speed and in rash and negligent manner. Because of the negligence of the opponent No.1 i.e. the driver of the said trailer, the accident occurred, resultantantly, Narendrabhai Madhubhai Prajapati died. The claimants, being the heirs of deceased Narendrabhai filed a claim petition being M.A.C.P. No.450 of 2009 for a compensation of Rs.25,00,000/- before the learned Motor Accident Claims Tribunal (Aux.), Surat. Page 2 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025
NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined The driver and the owner of the trailer did not contest the petition but the Insurance Company - original opponent No.3 appeared and filed Written Statement at Exh.35. Claimant No.1 widow of deceased filed examination in chief at Exh.41 and also produced FIR, Panchnama, Post Mortem report of the deceased and copies of Income Tax Returns for the Assessment Year 2004-2005 upto Assessment Year 2007-2008. After considering the evidence, learned Tribunal allowed the claim petition by awarding Rs.43,38,700/- with cost and 9% interest p.a. from the date of application till realization against the opponents. Being aggrieved and dissatisfied with the impugned judgment and award, appellant - Insurance Company is before this Court.
3. Learned advocate for the appellant - Insurance Company submitted that the award of the learned Tribunal is excessive and without properly appreciating the question of negligence and the Page 3 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined income of the deceased. It is contended that the learned Tribunal has erred in considering prospective income of deceased at 50% and further erred in deducting 1/5th amount towards personal and living expenses of the deceased. Pending the application, claimant No.4 - Madhubhai Rambhai Prajapati - father of deceased was deleted. Claimants being 4 in number, learned Tribunal ought to have considered 1/4th amount towards personal and living expenses of the deceased. It is further submitted that while considering the income of the deceased, who was a Diamond Agent at the relevant point of time, learned Tribunal has considered Rs.16,600/- per month as income. As per Exhs.59, 60, 61 and 62 which are the copies of Income Tax Returns of deceased for the Assessment Year of 2004-2005 upto Assessment Year 2007-2008, the income which has been assessed by the learned Tribunal is not substantial. As the quantum of compensation is against the evidence on record, the appeal deserves to be Page 4 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined allowed.
4. Per contra, learned advocate for the respondents -
original claimants supported the award. It is submitted that the deceased was aged about 37 years at the time of accident and was engaged in the business of Diamond Agent. The deceased was earning Rs.1,80,000/- to Rs.2,00,000/- per year from the said business before the accident. Learned Tribunal has considered the Income Tax Returns and assessed the income of deceased at Rs.16,600/- per month which is just and reasonable. However, it is pointed out that the learned Tribunal has not awarded parental and filial consortium as per the settled principle of law. The further contention which has been raised by learned advocate for the respondent regarding negligence is that the driver of the offending trailer was negligent in causing the accident. The Panchnama and the FIR indicate that the driver of the offending trailer was solely negligent Page 5 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined and the learned Tribunal has rightly concluded the question of negligence by holding sole negligence of the trailer driver in the occurrence of accident. The driver of the offending trailer has not come forward before the learned Tribunal and has opted to remain absent and, therefore, the finding on negligence may not be disturbed by this Court.
5. We have considered the submissions canvassed by learned advocates for the respective parties and also perused the Record and Proceedings. Learned Tribunal has observed that the driver of the offending trailer was sole negligent in the occurrence of accident. While observing the issue of negligence, learned Tribunal has taken into consideration the Panchnama of the place of accident. In absence of the contrary evidence being led by the owner and driver of the trailer, we do not find any other material to dislodge the finding on the question of negligence. Even during the course of submission, learned Page 6 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined advocate for the appellant also could not point out any contrary evidence on the question of negligence.
6. The next question for consideration is regarding quantum of compensation. When the offending trailer driver has been found negligent in the occurrence of the accident, the insurer of the offending trailer is required to be saddled with the liability of compensation to the heirs of deceased. We have noticed that the learned Tribunal has considered Exhs.60 to 63, which are the Income Tax Returns of the deceased for the Assessment Year 2004-05 to Assessment Year 2007-08. Undisputedly, the Income Tax Return for the Assessment Year 2007-08 is filed by the widow of the deceased on 28.1.2009, which is after the date of accident. While arriving at the income of deceased, learned Tribunal has only taken into consideration the income of deceased which is reflected in Exh.62 at Rs.1,49,880/- which is the Income Tax Return of Assessment Year 2007-08. Page 7 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025
NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined Learned Tribunal took 8 months average income and derived income of Rs.16,600/- per month. As per Exhs.59 to 62 which are the Income Tax Returns for the Assessment Year 2004-05 to Assessment Year 2007-08. After deducting the tax amount, the total net income would come to Rs.4,62,076/- for 4 years. There is no palatable explanation assigned by learned Tribunal for determining the income and for taking into consideration only one Income Tax Return Exh.62. In our opinion, looking to the Post Mortem report of the deceased which indicates the age of deceased at 35 years at the time of accident and considering the average monthly income of deceased which comes to Rs.9,627/- per month (Rs.4,62,076/- / 48 months = Rs.9,627/- per month). The deceased was aged about 35 years and was a self employed person. As per the law laid down in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680, 40% to be added as prospective income of Page 8 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025 NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined deceased and multiplier of 16 would be applicable. The claimants are 4 in numbers, 1/4th amount to be deducted towards personal and living expense of deceased.
7. Taking into consideration the decision in the case of Pranay Sethi (Supra) and in view of above discussion and finding, it would be in the fitness of things to modify the judgment and award passed by the learned Tribunal, as under:-
Particulars Amount in
Rupees
Actual Salary / Income 9,627/-
Prospective Income (40%) 3,851/-
Total... 13,478/-
Deduction towards personal 3,370/-
expenses (1/4th)
Net Monthly Income... 10,108/-
Total Monthly Income × 12 × 16 10,108×12×16
Multiplier
Loss of Dependency 19,40,736/-
Conventional Amount for Loss of 18,150/-
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NEUTRAL CITATION
C/FA/1472/2016 JUDGMENT DATED: 22/01/2025
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Estate
Spousal Consortium 48,400/-
Funeral Expenses 18,150/-
Parental Consortium and 96,800/-
Filial Consortium 48,400/-
Total 21,70,636/-
Compensation already awarded 43,38,700/-
by the Tribunal
Excess Compensation 21,68,064/-
8. In view of above stated discussions, reasons and our findings so recorded, the present appeal is partly allowed. The following order is passed:
(A) The claimants would be entitled to Rs.21,70,636/- with interest @ 7% per annum from the date of claim petition till its realization.
(B) As the learned Tribunal has awarded compensation of Rs.43,38,700/- Page 10 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025
NEUTRAL CITATION C/FA/1472/2016 JUDGMENT DATED: 22/01/2025 undefined with costs and interest, the appellant - Insurance Company is entitled to get refund of Rs.21,68,064/-.
(C) Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
(BIREN VAISHNAV, J) (D. M. DESAI,J) vk Page 11 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:56:23 IST 2025