Gujarat High Court
Reliance General Insurance Company Ltd vs Narendrasing Kesasing Ravat on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1530/2015 JUDGMENT DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1530 of 2015
With
R/CROSS OBJECTION NO. 13 of 2016
In
R/FIRST APPEAL NO. 1530 of 2015
With
R/FIRST APPEAL NO. 1531 of 2015
With
R/CROSS OBJECTION NO. 14 of 2016
In
R/FIRST APPEAL NO. 1531 of 2015
With
R/FIRST APPEAL NO. 1313 of 2015
With
R/FIRST APPEAL NO. 1314 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
Approved for Reporting Yes No
✓
================================================================
RELIANCE GENERAL INSURANCE COMPANY LTD
Versus
NARENDRASING KESASING RAVAT & ORS.
================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR.HIREN M MODI(3732) for the Defendant(s) No. 6.1,6.2,6.3,6.4
RULE SERVED for the Defendant(s) No. 1,3,4
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 31/01/2025
Page 1 of 21
Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025
NEUTRAL CITATION
C/FA/1530/2015 JUDGMENT DATED: 31/01/2025
undefined
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Present First appeals, Cross Appeals and Cross- Objections are filed by the respective appellants challenging the common judgment and award dated 27.02.2015 passed by the learned Motor Accident Claims Tribunal, (Aux.), Panchmahals at Godhra. First Appeal No.1530 of 2015 together with Cross- Objection No.13 of 2016 and First Appeal No.1313 of 2015 are emanating from MAC Petition No.930 of 2010. First Appeal No.1531 of 2015 together with Cross-Objection No.14 of 2016 and First Appeal No.1314 of 2015 are emanating from MAC Petition No.931 of 2010.
2. We have heard learned advocate Mr. Vibhuti Nanavati for the appellants and learned advocate Mr. Hiren M. Modi for the respondent Nos.6.1 to 6.4 in First Appeal No.1530 of 2015 and First Appeal No.1531 of 2015. None appeared for respondent No.5. We have also heard Mr. Hiren M. Modi for the Page 2 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined appellants appearing in First Appeal No.1313 of 2015 and First Appeal No.1314 of 2015. None appeared for the respondent/s.
3. Since all the appeals are emanating from the same facts and submissions, therefore, appeals are taken up for final disposal forthwith.
4. The brief facts of the case are as under:-
4.1. On 26.10.2010 at approximately 3.30 a.m. deceased Manojbhai Kalidas Panchal along with his wife Jyotiben alias Joyotikaben Manojbhai Panchal, daughter Hetalben and son Sagar along with other relatives were travelling in Qualis Car No.GJ-05-AR-4389. They were travelling from Shirdi to Godhara. When the car reached near Anandpura Village on Vadodara-Halol Highway, a truck bearing Registration No.GJ-
12-Y-9515 was going ahead of the Qualis Car in a very high speed. The driver of the Qualis Car i.e. original opponent No.4 was also driving the car at an excessive speed and in rash and Page 3 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined negligent manner. The driver of the truck suddenly applied breaks and stopped the truck in the middle of the road. As the driver of the Qualis Car lost control, dashed with the rear side of the truck. Resultantly, Manojbhai Kalidas Panchal, his wife, daughter and son suffered serious injuries and due to the accidental injuries, Manojbhai Kalidas Panchal and his wife Joyotiben alias Jyotikaben died. Daughter Hetal and son Sagar sustained injuries. The Qualis Car belonged to the ownership of original opponent No.5. Opponent No.4 was driving the Qualis Car at the relevant point of time. Original opponent Nos. 1 and 2 are the driver and owner respectively of the truck. Opponent No.3 is the Insurance Company of the offending truck and opponent No.6 is the Insurance Company of the Qualis Car. The heirs of deceased Manojbhai Kalidas Panchal namely minor daughter Hetal Manojkumar Panchal, minor son Sagar Manojkumar Panchal, Kalidas Babarbhai Panchal and Leelaben Kalidas Panchal filed MACP No.930 of 2010 for a compensation of Rs.60,00,000/- before the learned Motor Page 4 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined Accident Claim Tribunal, District Panchmahals at Godhra and learned Tribunal has awarded Rs.14,63,108/- with interest @ 9% per annum from the date of claim petition till its realization. The heirs of Jyotiben alias Jyotikaben has filed MACP No.931 of 2010 for a compensation of Rs.8,00,000/- before the learned Motor Accident Claim Tribunal, District Panchmahals at Godhra and learned Tribunal has awarded Rs.5,65,500/- with interest @ 9% per annum from the date of claim petition till its realization. The respective insurance companies i.e. opponent Nos.3 and 6 filed their respective written statements at Exhibit- 27 and Exhibit-49 respectively and contested the claim petition. Opponent Nos.1, 2 did not file written statement. Opponent Nos.4 and 5 filed joint written statement at Exhibit-31. After considering the oral as well as documentary evidences, the learned Tribunal partly allowed the claim petition against opponent Nos.1, 2 and 3 i.e. the driver, owner and insurance company of the truck and dismissed the petition against opponent Nos.4, 5 and 6 i.e. the driver, owner and insurance Page 5 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined company of Qualis Car. The learned Tribunal passed an award directing opponent Nos.1, 2 and 3 jointly and severally to pay compensation of Rs.14,63,108/- and Rs.5,65,500/- in MACP No.930 of 2010 and MACP No.931 of 2010 respectively with interest at the rate of 9% per annum from the date of claim petition till its realization with proportionate costs. Being aggrieved and dissatisfied with the aforesaid judgment and award, the appellants in First Appeal No.1530 of 2015 and First Appeal No.1313 of 2015 and the appellants in First Appeal No.1531 of 2015 and First Appeal No.1314 of 2015, are before this Court challenging the aforesaid impugned judgment and award.
5. Learned advocate for the appellants submitted that the finding recorded by the learned Tribunal on the issue of contributory negligence holding the truck solely negligent in causing the accident is against the oral as well as the documentary evidence. The oral deposition of the driver of the Page 6 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined truck at Exhibit-166 clearly mentions that the truck was stationary at the edge of road due to breakdown. It is further submitted that if the truck driver had stopped the truck in the middle of the road, the entire front portion of the Qualis would have dashed with the rear portion of the truck, however, the Qualis driver was not injured in the said accident. The panchnama of the place of accident further reveals that the distance between the truck and the car was four feet after the impact, which clearly indicates that the Qualis Car was in such a high speed that after the impact the Car was pushed back about four feet. As per the case of the claimants, the journey from Shirdi was started on 25.06.2010 in the morning and the accident took place on 26.06.2010 at 3:30 a.m. This means that the driver of the car was plying the car for more than 20 hours. Such a long driving would lead to fatigue to the driver of the car and because of the negligence of the car driver, the accident took place. It is further submitted that the learned Tribunal has completely overlooked the admission of the driver of the Qualis Page 7 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined Car who has deposed that he saw the truck at the distance of 250 to 300 feet before the occurrence of the accident. The panchnama at Exhibit-68 indicates that no brake marks are found on the road. When the driver of the car had seen the truck, he would have applied the brakes and could have avoided the accident. It is further submitted that the truck was standing on the road because of the burst of rear tyres on the conductor side. It is further submitted that the oral deposition of the driver of the Qualis Car-opponent No.4 at Exhibit-188 clearly establishes that car driver was negligent in the occurrence of the accident. No other submissions except the above are canvassed by learned advocate for the appellant.
6. Per contra, learned advocate Mr. Hiren M. Modi for original claimants-present respondent Nos.6/1 to 6/4 supported the award and submitted that offending truck was stationary on the middle of the road without any indicator, sings or signals. The fact which is pleaded by the driver of the truck in his oral Page 8 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined deposition further strengthens the case of the claimants on the issue of negligence. It is further submitted that driver of the truck did not take care while stopping the truck on the middle of the road. It is further submitted that because of the full speed of the Qualis Car, the driver of the Qualis Car could not control the car and it dashed with the back portion of the truck in which the front part of the car was completely broken and damaged. It is further contended that the truck driver did not lodge any complaint. This conduct also establishes the fact that the driver of the truck was equally responsible for the occurrence of the accident.
7. Learned advocate for respondent No.6-United India Insurance Company submitted that the learned Tribunal has rightly decided the issue of negligence and exonerated opponent Nos.4, 5 and 6 from the liability of compensation. The oral deposition of the driver of the truck and the panchnama at Exhibit-68 indicates that the truck driver was negligent in Page 9 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined stopping the truck in the middle of the road without any indicator, sign or signal. The finding arrived at by the learned Tribunal that the Insurance company of the car has also examined investigation officer at Exhibit-211A and the said witness has deposed that he did not find any reflector or indicator showing stoppage of the truck on the road. It is further submitted that the other claimants who sustained injuries in the said accident has also deposed that the truck driver was negligent in the occurrence of an accident. Learned advocate for the opponent-Insurance Company has relied upon Sections 121, 122 and 126 of the Motor Vehicles Act and Rule No.15 of Road Regulations, 1989.
8. We have considered the submissions of the learned advocates for the parties and also perused the record and proceedings. The learned Tribunal has partly allowed the claim petition by exonerating opponent Nos.4, 5 and 6 i.e. owner, driver and insurance company of the Qualis Car. The only Page 10 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined question which is under consideration is on the basis of the evidence on record whether negligence can be attributed solely on the shoulder of the truck driver or not. Allegations and counter-allegations are levelled by the drivers of the respective vehicles in shirking away the responsibility of the occurrence of the accident. As per the panchnama at Exhibit-68, the width of the road is 22 feet and there are no brakemarks on the road. The claimants of all the claim petitions have stated that driver of the Qualis Car was rash and negligent and was plying the Qualis Car at an excessive speed. As per the say of the driver of the Qualis Car, whose oral testimony is recorded at Exhibit-188, he had seen truck in a stationary condition before 250 to 300 feet. In absence of any material to indicate any steps or actions being taken by the driver of the Qualis Car in avoiding the accident, in our view, the learned Tribunal has committed an error in not holding composite negligence of both the drivers in the occurrence of an accident. The fact which has been observed by the learned Tribunal that driver of the Qualis Car was not Page 11 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined injured in the accident may be because, he would have tried to take the car on the right hand side of the road. The panchnama at Exhibit-68 further reveals that the distance between the rear part of the truck and the Qualis Car was four feet. The version of the driver of the truck at Exhibit-166 is that the rear tyres of the truck got burst and the truck was parked on the left hand side of the road near to the service road divider and the right side of the road was sufficiently open for other vehicles to pass by. The panchnama supports the version of the truck driver, which indicates that the rear side wheels on the conductor side were found in burst condition. The condition of the Qualis Car also indicates the force at which the car would have dashed with the rear portion of the truck. Therefore, considering the panchnama as well as the version of the claimants, it is found that both the drivers were negligent. Now the question remains as to which driver of the offending vehicles has contributed more in the occurrence of the accident. On the basis of the evidence and the discussions made above, we are of the view that the driver of the Page 12 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined truck has contributed 70% in the occurrence of an accident and the driver of the Qualis Car has contributed 30% in the occurrence of the accident.
9. Thus, First Appeal No.1530 of 2015 and First Appeal No.1531 of 2015 are party allowed. The impugned judgment and award is modified to the extent that original opponent Nos.1 to 6 are jointly and severally liable to pay the compensation to the claimants in the proportion of 70% and 30% respectively. The appellant-Insurance Company is also entitled to refund of excess amount of compensation that has been deposited before the learned Tribunal. The learned Tribunal shall refund the excess compensation to the appellants. Rest of the award remains unaltered. No order as to costs. Record and proceedings, if any, be sent back to the learned Tribunal forthwith.
10. First Appeal Nos.1313 of 2015 is filed by the original Page 13 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined claimants for enhancement of the compensation. Learned advocate for the original claimants submitted that the learned Tribunal has committed an error while considering the income of the deceased Manojbhai Kalidas Panchal at Rs.1,18,525/- per annum. The learned Tribunal has not considered that the deceased was a practicing advocate and was doing agricultural activities as well as animal husbandry work and thus, he was earning Rs.60,000/- per month . It is submitted that income tax return of the year 2010-11 clearly establishes that deceased was having income of Rs.1,46,803/- per annum. It is submitted that the gross income as per Exhibit-111 which is statement showing income at Rs.1,28,347/- for the assessment year 2009-10. The learned Tribunal has considered deductions other than income tax from the gross total income. It is further submitted that from the gross income, only income tax has to be deducted and no other deductions can be considered while assessing the income of the deceased. Thus, the gross total income comes Rs.1,28,347/- at the relevant point of time. The learned tribunal Page 14 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined has considered 30% as future prospective income as the age of the deceased at the time accident was 40 years and 16 days and the Tribunal ought to have considered future prospective income at 50%.
11. Per contra, learned advocate Mr. Vibhuti Nanavati for respondent No.3-Insurance Company submitted that while considering the income of the deceased, except deduction of income tax, no other deductions to be considered. In the present case, as per the Exhibit-111, the gross total income of deceased for the assessment year 2009-10 was Rs.1,28,347/- per annum. However, it has been pointed out by learned advocate for the Insurance Company that in the balance sheet for the period between 2008 to 2009, no agricultural land has been shown. Therefore, the income from agriculture, as claimed by the claimants is not established. Even in the balance sheet income from agriculture is also not disclosed and therefore, the claim of Rs.60,000/- per month under the head of agricultural income is Page 15 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined not established and therefore, the claim of Rs.1,46,803/- per annum cannot be accepted. So far as Exhibit-112, which has been relied upon by the claimants to substantiate the total income at Rs.1,46,803/- is concerned, the same has no relevance in determining the income for the reason that the income tax return has been submitted with the income tax department after the date of accident and therefore, the income after the accident cannot be taken into consideration for awarding compensation.
12. In our opinion, profit and loss account and the balance sheet for the financial year 2008-09 produced along with Exhibit-111 neither reflect any agricultural land nor any income from agricultural activities. Exhibit-112 which is a statement of return details is submitted on 06.09.2010, which is after the accident occurred on 26.06.2010. Learned Tribunal has considered the income stated in Exhibit-111. The income which ought to have been considered for determining the annual income of deceased should be Rs.1,28,347/- per year and not Page 16 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined Rs.1,18,525/- per annum. The Tribunal has erred in deducting Rs.9,822/- as deductions. While considering the income of the deceased only amount of income tax to be deducted from the gross total income. In the present case, we hold that Rs.1,28,347/- is the income per year. The deceased was aged about 40 years and 16 days hence, applying the ratio laid in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680, the addition of 30% in the income of Rs.38,504/- which comes to Rs.1,66,851/-. The deductions from the income towards personal expenses to the extent of 1/3 remains unaltered. Considering three dependents amount comes to Rs.55,617/- per year. And after deducting the amount of personal expenses, the future annual loss of dependency would come to Rs.1,11,234/-. As per the case of Sarla Verma (supra), Tribunal has adopted 14 as multiplier, therefore, the claimants suffered future loss of dependency of Rs.15,57,276/- (Rs.1,11,234/-X14 = Rs.15,57,276/-). Accordingly, the claimants are entitled to Page 17 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined following amount of compensation;
Amount Rs. Head under which compensation is awarded
Rs.15,57,276/- Loss of dependency
Rs.15,57,276/- Total
13. Both the Insurance Companies i.e. respondent Nos.3 and 6 are hereby directed to pay the compensation as per their share to the claimants with the interest @ 9% per annum from the date of claim petition till realization. The amount which has been deposited by the respondent No.3-Insurance Company be adjusted towards the total enhanced compensation. First Appeal No.1313 of 2015 is partly allowed. Record and proceedings, if any, be sent back to the learned Tribunal forthwith.
14. First Appeal No.1314 of 2015 is filed by the original claimants for enhancement of the compensation. Learned advocate for the original claimants submitted that the learned Tribunal has committed an error while considering the income of the deceased at Rs.3,000/- per month. It is further submitted Page 18 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined that deceased Jyotikaben was doing sewing an embroidery work and was earning Rs.4,000/- per month.
15. Per contra, learned advocates for both the insurance companies have submitted that the learned Tribunal has rightly assessed the monthly income of deceased Jyotikaben and in absence of any material, learned Tribunal has considered a notional income as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation & Ors. reported in [(2006) 9 SCC 121].
16. Since the tribunal has considered the notional income of the deceased in absence of any cogent evidence to substantiate the earnings deceased Jyotikaben and except the bare contention that the learned Tribunal ought to have considered Rs.4,000/- as monthly income of deceased Jyotikaben, we are not inclined to interfere in the assessment of the monthly income of deceased Jyotikaben. Hence, First Page 19 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined Appeal No.1314 of 2015 is devoid of merits and the same is dismissed. The Cross-Objections filed by the original opponent No.5-United India Insurance Company Limited is mainly on the ground that the Qualis Car was hired by the deceased and the Insurance Company is not liable for the compensation. It is also contended that by learned advocate for the Insurance Company, United India Insurance Company Limited, that the FIR explicitly states that the car was hired for a trip to Shirdi. The insured car was used for hire and reward, the policy does not cover such risk. On the quantum aspect, it is submitted that the learned Tribunal has erred in awarding compensation by applying the wrong multiplier and by miscalculating the compensation for loss of estate.
17. In our opinion, the grounds for challenge by way of cross- objections are not entertainable for the aforesaid discussion. The present appellant could not place on record any cogent and convincing material to substantiate their contention regarding Page 20 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025 NEUTRAL CITATION C/FA/1530/2015 JUDGMENT DATED: 31/01/2025 undefined use of the Qualis Car for hire and reward purpose. The quantum of compensation which has been decided by this Court in the aforesaid paragraphs eventually disentitles the appellant in succeeding in the cross-objections. Resultantly, Cross- Objections are dismissed.
18. Record and proceedings, if any, be sent back to the concerned learned Tribunal forthwith.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 21 of 21 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:02 IST 2025