Gujarat High Court
Nureshabibi Cherku Ansari vs Ram Achaibar Budai Yadav on 27 January, 2025
NEUTRAL CITATION
C/FA/2827/2010 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2827 of 2010
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NURESHABIBI CHERKU ANSARI & ORS.
Versus
RAM ACHAIBAR BUDAI YADAV & ORS.
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Appearance:
MR HARSHIT S TOLIA(2708) for the Appellant(s) No. 1,2,3,4
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1,2,3,4
ADVOCATE NOTICE UNSERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2025
ORAL ORDER
Being aggrieved by and dissatisfied with the judgment and award dtd. 13.10.2008 passed by Motor Accident Claims Tribunal (auxi), Valsad in M.A.C.P No.8/2005, the appellants have preferred present appeal under section 173 of the Motor Vehicle Act, 1988 whereby the tribunal has awarded compensation of Rs.2,74,000/- holding the opponents No.1 and 2 jointly and severally with interest @ 7.5% per annum from the date of filing of the petition till the realization while exonerating the insurance company.
2. The short facts of the case are that on 23-10-2004, deceased alongwith his brother was going by walking on Selvas Road, Vapi at that time opponent no.1 riding truck bearing No.GJ-15 AX-5435 came rashly and negligently and hit him the deceased who succumbed to the serious injuries.
2.1 The claim petition was filed seeking compensation of Rs.6,00,000/-
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and the learned tribunal after considering the evidence on record awarded the compensation as recorded in paragraph 1 of this judgment.
3. Heard learned advocate Mr.Tolia, for the appellant. Pursuant to order dated 09/12/2024 the notice was issued to the Insurance Company however no one remained present on behalf of the insurance company.
4. Learned Advocate Mr.Tolia for the appellant - org. claimants assailed the judgment and award by submitting that learned tribunal has not considered the ratio laid down in case of Deddappa & Ors., vs Branch Manager, National Insurance Co Ltd., 2008 (3) GLH 168. He would submit that in present case deceased was third party who lost his life. He would submit that cheque issued towards the purchase of policy is honoured or not cannot be adjudicated against the claimant. The insurance company having issued the policy on receipt of the cheque is liable to satisfy the award and may recover the same from owner of the vehicle.
4.1 Second submission made by learned advocate Mr.Tolia is that learned tribunal in absence of any proof of income of the deceased ought to have taken the rate of minimum wage prevailing at the time of accident of Rs.2,400/- instead of Rs.2,100/- and considering the age of the deceased being 30 years the prospective income is required to be granted to the extent of 40% . He would submit that multiplier of 17 is also required to be applied in view of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680]. He would further submit that tribunal has only granted Rs.5,000/- for loss of consortium whereas there are total four 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 Page 2 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025 NEUTRAL CITATION C/FA/2827/2010 ORDER DATED: 27/01/2025 undefined Rs.10,000/- 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.
4.1 By making above submissions, he would submit to enhance the compensation awarded by the tribunal.
5. As noted herein above though served, the insurance company did not appear to contest the appeal.
6. Having heard the learned advocates appearing for the respective parties and examining the records and proceedings minutely and evidence on record, what could be noticeable that in the present case the insurance company has examined the witness Mr.Pravinbhai at Exh.51 who is officer of the insurance company and has deposed in his testimony that for the period between 30/06/2004 and 29/06/2005 the owner of the truck involved in question had purchased the policy by making payment through cheque of Rs.6,205/-; however the same was returned without being honoured (Exh.52 to 54). Notice was issued to the owner of the vehicle on 14/07/2004 informing about the cancellation of the policy as the cheque issued against purchase of the policy was returned without being honoured (Exh.55 and 56). Notice was also issued to the RTO about cancellation of the policy (Exh.57). Thus, from the record it appears that on 14/07/2004 the insurance company has cancelled the policy for non-payment of premium and informed to the authorities concerned. Thus, there is due compliance for cancellation of the policy. Admittedly, the accident took place on 23/10/2004 and policy was cancelled on 14/07/2004 by giving intimation to the RTO i.e. within few days. Thus, it is established that on the date of accident the offending vehicle was not insured with the insurance company. The insurance Page 3 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025 NEUTRAL CITATION C/FA/2827/2010 ORDER DATED: 27/01/2025 undefined company has followed the procedure to cancel the policy and on the date of accident no such policy was in existence. Thus, the tribunal has rightly come to the conclusion by making observation in paragraph 21 and this Court is in complete agreement with the said finding and accordingly confirmed the said finding of exonerating the insurance company.
7. Admittedly, there is no proof of income of the deceased was produced and as per rate of minimum wage it could be taken at Rs.2,400/- as per the Notification issued by the Government. Considering the age of the deceased, multiplier of 17 would be made applicable in the facts of the present case. The family of the deceased had lost bread winner of the family. Human loss is always inaccessible. When guilt of a killer road accident is taken place wherein the sole bread winner of the family lost his life, the entire family will ruin and put in lurch to maintain itself if the just and fair compensation is not assessed. It would be worth to mention that looking to the work with which the deceased was involved and in absence of of evidence to have continuous source of income of the deceased 40% rise in his income is required to be 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.
7. 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.50,000/- as global amount for loss consortium, lost to estate and funeral and obsequies expenses. Here in the present case, deceased was survived by his parents, spouse and two minor children. Due to death of deceased each of the family member met with Page 4 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025 NEUTRAL CITATION C/FA/2827/2010 ORDER DATED: 27/01/2025 undefined the loss and thus the loss of consortium for spousal, filial and parental is 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.
8. 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.
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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 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."
9. 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 Page 6 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025 NEUTRAL CITATION C/FA/2827/2010 ORDER DATED: 27/01/2025 undefined 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".
10. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of Dependency: 4,49,820/-
(Rs.2,100/- Income (-) one-fourth towards personal and pocket expenses (+) 40% future prospect (x) 12
(x) 17 (multiplier).
Loss of consortium (Rs.48,400/- x4) 1,93,600/-
Loss of Estate & Funeral Expenses 36,300/-
(Rs.18,150/- each)
Total 6,79,720/-
Already awarded by the tribunal 2,74,000/-
Enhanced amount of compensation 4,05,720/-
11. In wake of above, I hold that the opponent No.1 and 2 are jointly and severally liable to pay the compensation to the claimants and Page 7 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025 NEUTRAL CITATION C/FA/2827/2010 ORDER DATED: 27/01/2025 undefined claimants are entitled to get the total amount of compensation of Rs.6,79,720/-with 9% 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.
12. For the foregoing reasons, the appeal filed by the appellant is partly allowed. The finding of the tribunal exonerating the insurance company is confirmed. The opponent nos.1 and 2 are held liable to pay the compensation of enhanced amount of Rs.4,05,720/- with interest at the rate of 7.5% from the date of filing of the petition till its realization. The opponent no.1 and 2 are directed to deposit the amount of compensation within a period of six weeks from the date of receipt of the writ of this order.
13. 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 apportionment fixed by the tribunal.
14. 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.
15. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 8 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:24 IST 2025