Gujarat High Court
National Insurance Company Limited vs Vihol Chandanji Heduji on 23 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1034/2018 JUDGMENT DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1034 of 2018
With
R/CROSS OBJECTION NO. 79 of 2023
In
R/FIRST APPEAL NO. 1034 of 2018
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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NATIONAL INSURANCE COMPANY LIMITED
Versus
VIHOL CHANDANJI HEDUJI & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR AV PRAJAPATI(672) for the Defendant(s) No. 2,3,4,5
MR PARTHIV A BHATT(5331) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present appeal is filed by appellant-Insurance Company and Cross-Objection has been filed by the appellants- original claimant against the judgment and award dated Page 1 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined 30.12.2017 passed by the learned Motor Accident Claims Tribunal (Main), Mahesana in Motor Accident Claim Petition No.110 of 2009, wherein learned Tribunal has awarded total amount of compensation at Rs.22,25,592/- with 9% interest per annum.
2. Heard learned advocate Ms. Masumi V. Nanavati for learned advocate Mr. Vibhuti Nanavati for the appellant- Insurance Company in appeal and respondent-Insurance Company in Cross-Objection and learned advocate Mr. A. V. Prajapati for respondent Nos.2, 3, 4 and 5 in appeal and appellant in Cross-Objection.
3. Brief facts narrated in the present First Appeal are as under:-
3.1 Deceased-Sanjaykumar Prahladbhai on 08.01.2009 was driving Motor Cycle bearing Registration No.GJ-02-AE-
2382. While reaching at the place of accident i.e. Limboi Vadgam Raod, sim of village Limboi, opponent No.1 came in a Page 2 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined Jeep bearing No.GJ-08-F-7553 with full speed and in rash and negligent manner and dashed with the Motor Cyclist. Resultantly, Sanjaykumar Prahladbhai Patel sustained serious injuries and died on the spot. Heirs of deceased filed Claim Petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.30,00,000/- from opponents. Opponent No.1 being the driver and owner of the Jeep was served with the Notice. However he chose not to defend the claim petition. Opponent No.2-Insurance Company appeared and filed Written Statement at Exhibit-15. Claimant No.1 widow of deceased filed examination-in-chief at Exhibit-21 and produced documentary evidence. After considering the evidence on record, learned Tribunal partly allowed the claim application by holding driver of Jeep negligent to the extent of 90% and deceased was found 10% negligent in the occurrence of accident. Learned Tribunal awarded Rs.22,25,592/- with costs and interest @ 9% per annum from the date of the petition till realization in favour of claimants.
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NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined 3.2. Being aggrieved and dissatisfied with the impugned award, the appellant-Insurance Company has filed the First Appeal. Original claimants have also filed Cross-Objections on the ground of salary and other income of deceased not being considered properly as well as awarding less amount of compensation under the head of loss of consortium and loss of estate.
4. As the facts are common, upon request of learned advocates for the parties, First Appeal and Cross-Objection are decided together.
5. Learned advocate for the appellant submitted that finding deceased negligent to the extent of 10% is erroneous and contrary to the contents of spot panchnama Exhibit-31. The width of the road as per Panchnama was 24 feet and the motor cycle was found at 21' 4" from left hand side of the road. It is contended that when the motor cyclist was traveling on extremely wrong side of the road, deceased has contributed Page 4 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined more in the occurrence of accident. While considering the income of the deceased, learned Tribunal has not considered deduction of professional tax of Rs.150/- per month which ought to have been deducted from his monthly salary of Rs.10,569/-. Since the deceased was appointed on ad hoc basis, the prospective income has been wrongly applied at 50% by the learned Tribunal.
6. Per contra, learned advocate for the respondents-claimants submitted that no interference is required in the findings of negligence in absence of any contrary evidence. As the driver of the Jeep has not been examined, the finding on negligence may not be disturbed. However, by way of cross-objections, the claimants have raised the issue that the learned Tribunal has not considered the salary of Rs.14,000/- per month as stated by the claimants and further learned Tribunal has erred in awarding only Rs.1,00,000/- towards loss of consortium and Rs.75,000/- as loss of estate. All four claimants, who are dependents of Page 5 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined deceased, ought to have been awarded Rs.75,000/- each. A claim of Rs.3,000/- per month under the head of income from agriculture ought to have been considered by the learned Tribunal.
7. We have considered the submissions and perused the record and proceedings. The spot panchnama which is produced at Exhibit-31 indicates that motor cycle was found at 21' 4'' from the edge of the road which is on the eastern side of place of accident. As per the first part of the panchnama, the width of the road is 24 feet which is of "east-west" direction, whereas in the later part of the panchnama, the direction of road is mentioned as "north-south" direction. Thus, the panchnama is not clear in mentioning about the direction of road at the place of accident. Unfortunately, learned advocates for the parties also could not point out the exact and correct direction of the width of the road at the place of the accident. However, Learned Tribunal has after considering the oral deposition of claimant and the position Page 6 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined of the motor cycle at the place of accident held that the deceased was negligent to the extent of 10% in the occurrence of accident. In absence of any cogent and convincing contrary material, we are not inclined to interfere in the findings of negligence and we confirm the findings of negligence arrived at by the learned Tribunal.
8. The next question which is under consideration, is the quantum of compensation which has been awarded to the claimants. Learned Tribunal has considered Rs.10,569/- per month as the income of the deceased at the time of accident. Adding 50% as prospective income which comes to Rs.5,285/- per month, total income of deceased was calculated at Rs.15,854/- per month. However, learned Tribunal has not considered deduction of Rs.150/- towards professional tax while considering the salary of deceased.
9. In our opinion, the income of deceased would be Page 7 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined Rs.10,419/- per month (Rs.10,569/- less Rs.150/- = Rs.10,419/-). Adding 50% as prospective income of deceased, the actual income would be Rs.15,628/- per month. Considering the claimants, who are four in numbers, ¼ would be deductable from the income of deceased under the head of personal expenses. Thus, the net income of deceased would be Rs.11,721/- per month (Rs.15,628 less Rs.3907/- [¼ under personal expenses] = Rs.11,721/- per month). Income per annum would be Rs.11,721 X 12 = Rs.1,40,652/-. Considering the age of the deceased at the time of accident, multiplier of 16 would be applicable in view of the proposition of law laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 860. Hence, the total dependency loss would come to Rs.22,50,432/-. The claimants therefore would be entitled to the following enhanced amount.
DEPENDENCY LOSS Amount in Rs.
Income
Rs.10569/- - Rs.150/- Professional Tax 10,419/-
Prospective Income (50%) 15,628/-
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NEUTRAL CITATION
C/FA/1034/2018 JUDGMENT DATED: 23/01/2025
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Rs.10,419 + Rs.5209/-
Deduction towards personal expenses 1/4th 11,721/-
Rs.15628/- less Rs.3907/- = Rs.11721/-
11,721 X 12 X 16
Total 22,50,432/-
Loss of estate 18,150/-
Loss of Funeral expenses 18,150/-
Loss of consortium
Widow, two minor children and mother
Rs.48,400/- + Rs.48,400/-X2 + Rs.48,400/- 1,93,600/-
Negligence 10%
Rs.24,80,332/-
Less Rs.2,48,033/- 22,32,299/-
Total 22,32,299/-
Amount awarded by tribunal 22,25,592/-
Enhanced amount 6,707/-
10. The Insurance Company is directed to deposit the enhanced amount of compensation compensation of Rs.6,707/- with 9% per annum interest within a period of four weeks from the date of receipt of this order.
11. The present First Appeal and Cross-Objection are partly allowed. The the judgment and award dated 30.12.2017 passed Page 9 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025 NEUTRAL CITATION C/FA/1034/2018 JUDGMENT DATED: 23/01/2025 undefined by the learned Motor Accident Claims Tribunal (Main), Mahesana in Motor Accident Claim Petition No.110 of 2009, is modified to the aforesaid extent. Record and proceedings be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 10 of 10 Uploaded by RINKU MALI(HC01574) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 23:03:09 IST 2025