Gujarat High Court
Oriental Insurance Co. Ltd vs Legal Heirs Of Decd. ... on 27 January, 2025
NEUTRAL CITATION
C/FA/423/2007 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 423 of 2007
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ORIENTAL INSURANCE CO. LTD
Versus
LEGAL HEIRS OF DECD. RAMJIBHAIRATANBHAI & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
DELETED for the Defendant(s) No. 3
MS PAURAMI B. SHETH(841) for the Defendant(s) No. 1.1,1.2,1.3,1.4
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant being aggrieved and dissatisfied with the judgment and award dated 21.9.2004 passed by the Motor Accident Claims Tribunal, Surendranagar in Motor Accident Claim Petition No.827 of 1996.
2. Brief facts of the case are as under:
2.1 The factual matrix relevant for merits of the case is to Ramji Ratnabhai serving No.13 was on his duty on the effect as a Constable of SRP Group the date of unfortunate occurrence of accident, i.e., on 14-5-92 within the territory of Bhimasar Police Station, District Bhuj, on national highway No.15 at Adisar Police Check-post. It is alleged that the deceased was on Page 1 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined his leg and when he was crossing the road at about 9.30 a.m. completed entire accidental road yet at that time offending truck bearing No.RJ-22 G-0047 came in a rash and negligent manner and dashed against resulting into over his person. transmitted to his person severe and serious number of injuries In the result, he Hospital was being but during transit he succumbed to his injuries, hence legal heirs and representatives of the deceased have prayed to award them amount of compensation for Rs.15,00,000/- from owner and Insurance Co. of the truck with interest and costs.
3. Learned advocate for the appellant found fault with the judgment and award passed by the learned Tribunal on the issue of income. She would further submit that the learned Tribunal has erred in taking up income of the deceased. She would further submit that that the deceased was Constable in SRP aged 31 years old at the time of road accident. She would further submit that even according to the findings of the learned Tribunal, the salary of the deceased was Rs.2137/- per month.
Yet, the learned Tribunal added leave salary of Rs.837.50. Not only that, the learned Tribunal has also taken up the salary of the deceased at the time of superannuation and calculated average income. She would further submit that the approach of the learned Tribunal is unknown to the settled principles and practice. She would further submit that in view of juidgment of the Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi reported in 2017 (16) SCC 680, last income of the deceased has to be taken up for calculation of loss of earning and loss of future prospect. Departure there from is Page 2 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined permissible only in exceptional cases. She would further submit that the learned Tribunal has incorrectly calculate to grant compensation for the loss of amount of gratuity, which is also not permissible, more particularly, when the Hon'ble Apex Court in case of Pranay Sethi (supra), decided to grant 50% loss of future prospect in a case of salaried person, which includes every loss of future sustained by the legal heirs of the deceased. Upon such submission, she prays to modify the impugned judgment and award.
4. Per contra, learned advocate for respondents - original claimants would submit that the learned Tribunal has not committed any error. Upon such submission, she prays to modify the judgment and award suitably.
5. 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 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 Page 3 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined just compensation regardless of the amount claimed by the claimant. 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.
6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the learned Tribunal. From the record, error of the learned Tribunal is noticed. The learned Tribunal has taken up the salary which he could have fetched if he survived at the time of superannuation and then average income. The order of the learned Tribunal is not befitting with the law laid down by the Hon'ble Apex Court in case of Pranay Sethi (supra). Evidently, it is held by the Hon'ble Apex Court in said case as under:-
"32. While adverting to the addition of income for future prospects, it stated thus:- "24. In Susamma Thomas this Court increased the income by nearly 100%, in Page 4 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
33. Though we have devoted some space in analyzing the precedential value of the judgments, that is not the thrust of the controversy. We are required to keenly dwell upon the heart of the issue that emerges for consideration. The seminal controversy before us relates to the issue where the deceased was self employed or was a person on fixed salary without provision for annual increment, etc., what should be the addition as regards the future prospects. In Sarla Verma, the Court has made it as a rule that 50% of actual salary could be added if the deceased had a permanent job and if the age of the deceased is between 40 - 50 years and no addition to be made if the deceased was more than 50 years. It is further ruled that where deceased was self-employed or had a fixed salary (without provision for annual increment, etc.) the Courts will usually take only the actual income at the time of death and the departure is permissible only in rare and exceptional cases involving special Page 5 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined circumstances."
6.2 In the present case, the salary certificate of the deceased has been produced on record and was earning rs.2137/- as monthly income and was also drawing the leave certificate of Rs.837.50. Since the deceased was permanent employee as Constable in the SRP group, the future prospect is to be given by 50%. Since he is survived by four dependents, 1/4 shall be deducted towards personal and pocket expenses. Further, considering the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, the general and non-pecuniary damages, Rs.18,150/- each towards loss of estate and funeral expenses should be awarded. Towards loss of consortium, there are four dependents and therefore, Rs.48,400/- to each dependent should be awarded as per the decision of the Hon'ble Apex Court in the case of United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. However, the learned Tribunal has erred in granting compensation under the loss of gratuity, as the loss of gratuity is also covered under the loss of future prospect being 50% to be granted. Therefore, there is no need to grant compensation separately for loss of gratuity and therefore, that portion is required to be corrected. It is to be noticed that the deceased was survived for few hours after he met with the road accident and therefore, compensation under the head of pain, shock and suffering is required to be granted.
6.3 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Page 6 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined Particulars Amount (Rs.) Future dependency Loss 6,42,048/- Loss of Estate 18,150/- Loss of consortium 1,93,600/- Funeral expenses 18,150/- Pain, shock and suffering 28598/- Total... 9,00,546/- Less : Amount which is already awarded 10,00,546/- Refund amount to be awarded to the 1,00,000/- insurance company
7. Therefore, I hold that the insurance company is entitled to refund back the amount of Rs.1,00,000/- with accrued interest, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is partly allowed.
8.2 The claimants are entitled to have total compensation of Rs.9,00,546/- along with 9% interest per annum from the date of filing the claim petition till realization.
8.3 Since the insurance company has deposited entire decretal amount of Rs.10,00,546/- along with accrued interest thereon, after deducting just and fair compensation of Rs.9,00,546/- along with accrued interest thereon, the learned Tribunal is Page 7 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025 NEUTRAL CITATION C/FA/423/2007 ORDER DATED: 27/01/2025 undefined directed to refund the amount Rs.1,00,000/- with accrued interest to the appellant - insurance company forthwith.
8.4 If any amount is paid excess than the amount of Rs.9,00,546/- to the claimant, it shall not be recovered from the claimant.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 8 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:30 IST 2025