Gujarat High Court
Heirs Of Decd. Merabhai Jagmalbhai vs Rupsing Kanjibhai Dabhi on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/3021/2012 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3021 of 2012
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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HEIRS OF DECD. MERABHAI JAGMALBHAI & ORS.
Versus
RUPSING KANJIBHAI DABHI & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,2,3,4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
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 : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present appeal is filed by the appellants challenging the common judgment and award dated 07.12.2011 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Page 1 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined Surendranagar in MACP No.98 and 232 of 2002, considering MACP No.98 of 2002 as main petition, wherein and whereby learned Tribunal has consolidated and partly allowed the both claim petitions.
2. Heard learned advocate Ms. Amrita Ajmera for the appellants, learned advocate Mr. H.G. Mazmudar for respondent No.2 and learned advocate Ms. Karuna V. Rahevar for respondent No.4. Rule could not be served upon respondent Nos.1 and 3.
3. The brief facts of the case are as under:-
3.1. Deceased Merabhai Jagmalbhai was driving Jeep bearing Registration No.GJ-13-F-4111 on 08.12.2001. As he reached near Vishala Hotel, Chotila on Ahmedabad-Rajkot Highway at about 11.15 p.m., a truck bearing Registration No.GJ-3-U-5331 being driven by opponent No.1, who was going ahead of the said jeep suddenly applied brake. The deceased also applied Page 2 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined brake but another truck bearing Registration No.GJ-3-U-4302 which was coming behind the jeep and was being driven by opponent No.3 did not apply the brake and heavily dashed with the rear side of the jeep and because of the heavy impact, the jeep dashed with the rear part of the truck bearing Registration No.GJ-3-U-5331. In the said accident, deceased Merabhai Jagmalbhai died and the co-passenger Abdulbhai Gulabbhai sustained injuries. Criminal complaint before Chotila Police Station was filed against the driver of truck bearing Registration No.GJ-3-U-4302 and he was charge-sheeted. Deceased was aged about 31 years of age and was serving as a Police Constable. Two claim petitions were filed out of the said accident. Heirs of Merabhai Jagmalbhai filed claim petition bearing MACP No.98 of 2002 for a compensation of Rs.25,00,000/- against drivers, owners and two insurance companies of truck bearing Registration No.GJ-3-U-5331 and truck bearing Registration No.GJ-3-U-4302 respectively.
Abdulbhai Gulabbhai also filed claim petition bearing MACP Page 3 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined No.232 of 2002 for a compensation of Rs.2,00,000/- against drivers, owners and two insurance companies of truck bearing Registration No.GJ-3-U-5331 and truck bearing Registration No.GJ-3-U-4302 as well as against the owner and insurance company of jeep bearing Registration No.GJ-13-F-4111 before the Motor Accident Claims Tribunal (Auxi.) at Surendranagar. 3.2. All opponents were duly served. Owners of all the vehicles remained absent. Respective insurance companies appeared and filed Written Statements at Exhibit-20 and 21 in MACP No.98 of 2002 and filed Written Statements at Exhibits-22, 24 and 18 respectively in MACP No.232 of 2002. Issues were framed in both the claim petitions at Exhibit-27 and 31 respectively and by a common judgment and award dated 07.12.2011, learned Tribunal partly allowed both the claim petitions. Original opponent No.2-United India Insurance Company Limited and opponent No.4-Oriental Insurance Company Limited were directed to deposit 50% each of the amount of Rs.8,39,000/- to Page 4 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined the claimants. The driver of the jeep was held 20% negligent in the occurrence of accident. The insurance companies of both the drivers of the truck were found negligent to the extent of 40% each.
3.3. Being aggrieved and dissatisfied with the impugned judgment and award passed in MACP No.98 of 2002, the claimants have filed the present First Appeal challenging the negligence and quantum of compensation.
4. Learned advocate for the appellants-original claimants submitted that learned Tribunal has erred in holding 20% negligence of deceased. Deceased was driving jeep at a moderate speed, which was between the two trucks. The truck bearing Registration No.GJ-3-U-5331, which was going ahead of the jeep suddenly applied brake, so deceased also applied brake. But the another truck bearing Registration No.GJ-3-U- 4302 which was coming behind the jeep did not apply brake and dashed with the jeep with full force. Due to such impact, the Page 5 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined jeep also further dashed with the truck ahead of it. Hence, the deceased was not negligent in causing such accident but drivers of the both the trucks were driving in rash and negligent manner, which resulted into the accident and therefore, both the drivers of the truck be held equal negligent. It is further submitted that learned Tribunal has not appreciated the cause of the accident and has wrongly held driver of the jeep negligent to the extent of 20%.
4.1. Learned advocate for the appellants further contended that deceased was serving as an unarmed Police Constable and he was aged about 31 years at the relevant time. Deceased would have retired in the year 2028, wherein his salary on the date of retirement would be Rs.26,938/- per month. Claimants have produced a letter dated 08.09.2011 with statements of Superintendent of Police, Surendranagar, which also proves the fact that deceased would have earned monthly Rs.26,938/- and learned Tribunal has not considered this important evidence and Page 6 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined has considered only Rs.4838/- income per month and after adding prospective income, learned Tribunal has granted Rs.7,000/- per month as the income of deceased. 4.2. In support of his submissions, learned advocate for the appellants has relied upon the decision of Hem Raj Versus Oriental Insurance Co. Ltd. reported in 2017 (0) AIJEL-SC 61674.
4.3. It is further submitted that standardisation may be the increase based on presumption but when there is an actual evidence led that future prospects was higher than the standard percentage, there is no bar to the Court in awarding higher compensation on that basis.
5. Per contra, learned advocate for the respondent- Insurance Company pointed out that reasoning assigned by the learned Tribunal does not require any interference. So far as the negligence is concerned, learned Tribunal has considered the Page 7 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined evidence and thereafter, held the driver of the jeep negligent to the extent of 20%. In absence of any convincing contrary material, the finding on negligence may not be interfered with. 5.1. Another submission which has been canvassed by the learned advocate for the Insurance Company is on the quantum. A reliance is placed upon the decision in the case of Divisional Controller GSRTC Vs. Sandhya Sahegal and Ors. decided on 29.12.2011 in First Appeal No.4827 of 2011 by the Co-ordinate Bench of this Court, reported in MANU/GJ/1382/2011 :
2012GLH(2)106.
5.2. It is submitted that the compensation has to be determined on the basis of basic pay with other relevant facts and not on the basis of estimated promotion. Therefore, it is submitted that as per the salary slip of the deceased, his salary was Rs.4,838/- per month. There is no justifiable reason assigned by the learned Tribunal in arriving at the conclusion of assessment of monthly income at Rs.7,000/-. It is further submitted that learned Page 8 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined Tribunal has rightly not considered claim of estimated salary of deceased.
6. We have considered the submissions canvassed by learned advocates for the respective parties and perused the record and proceedings. We are informed that claimants of MACP No. 232 of 2002 has not challenged the award. The respective insurance companies of both the trucks have also not challenged the judgment and award. So far as the question of negligence is concerned, the drivers of both the trucks have not entered in the witness box and clarified the actual happening of the accident.
Considering the material found on record and considering the oral deposition of the co-passenger Abdulbhai Gulabbhai, all three vehicles were found negligent. The claimant of MACP No.232 of 2002 has also alleged that driver of the jeep bearing Registration No.GJ-13-F-4111 was also rash and negligent and also claimed compensation from all drivers, owners and insurance companies of the offending three vehicles. On such Page 9 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined factual position, and more particularly, except a bare challenge in finding the deceased negligent to the extent of 20%, we do not find any substance to alter the finding on negligence and we confirm that all the three vehicles namely two trucks and jeep are negligent to the extent of 40%, 40% and 20 respectively.
7. Another question which is required to be dealt with whether Tribunal has erred in not considering the claim of estimated promotion of deceased and/or while ascertaining the income of the deceased, the salary at the time of retirement to be considered or not. Similar question arose before the Co-ordinate Bench of this Court in the case of Divisional Controller GSRTC (supra), the Co-ordinate Bench had an occasion to discuss the decision of Oriental Insurance Company Limited Versus Jasuben & Ors. reported in AIR 2008 SC 1734. In the decision of Jasuben (supra), the Apex Court has observed that salary would be revised or not was not known at the time when the deceased died. Only because such salary was revised at a Page 10 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025 NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined later point of time, same by itself would not have been the factor which could have been taken into consideration for determining the amount of compensation. The law on the question of determining compensation on the basis of income is put to rest by catena of decisions. The law which prevails upon as on today is that the compensation should be determined considering the earnings of the deceased at the time of accident. Prospective income is not out of consideration while determining the income. Hence, Tribunals are expected to consider the income on the date of accident and further to add prospective income of the person.
8. In the case of Divisional Controller (supra), in paragraph No.6, the Co-ordinate Bench has observed that promotion is an incidence of service. Nobody has a right of promotion and it would not be in the interest of justice to infer promotion or assume promotion and fix the future income of the deceased based on the salary of the promotional post. Page 11 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025
NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined
9. In the present case, Exhibit-51 which is a pay slip of deceased, is clear and convincing piece of evidence to determine the income of deceased at the time of accident. The income at the time of retirement is not relevant factor to be considered while determining the compensation. The loss of dependency should be calculated on the basis of basic pay drawn by the deceased at the time of death.
10. The decision relied upon by the learned advocate for the appellants is of no assistance to substantiate the claim of the appellants and therefore, the same is not applicable to the facts of the present case.
11. Exhibit-51 which is a pay slip of deceased which indicates gross pay of Rs.4,838/-, out of which Rs.100/- towards medical Allowance, Rs.20 as Cycle Allowance, Rs.25 toward Washing allowance and Rs.20 toward professional tax to be deducted. Deducting Rs.165/- from Rs.4838/- the gross pay of deceased would come to Rs.4673/- per month.
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NEUTRAL CITATION C/FA/3021/2012 JUDGMENT DATED: 31/01/2025 undefined
12. Looking to the age of the deceased, prospective income to be added at 50% and ¼ to be deducted towards personal and living expenses, the claimants are entitled to the following amount of compensation.
Particulars Amount in Rs.
Salary -
(Rs.4838/- less Rs.165/-) 4,673/-
50% Prospective Income 7,009/-
(Rs.4673/- + Rs.2336/- [50%])
Less ¼ Towards Personal Expenses 1,752/-
(Rs.7,009/- x ¼)
Monthly Income (Rs.7,009/- - Rs.1,725) 5,257/-
Income per annum Rs.5257/- X 12 63,084/-
Loss of dependency 10,09,344/-
(Rs.5257/- x 12 x 16)
Loss of consortium 1,93,000/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total... 12,38,644/-
Less 20% Negligence 2,47,728/-
Total... 9,90,916/-
Less compensation awarded by the 8,39,000/-
Tribunal
Enhanced Compensation 1,51,916/-
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NEUTRAL CITATION
C/FA/3021/2012 JUDGMENT DATED: 31/01/2025
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13. Thus, the enhanced amount of compensation of
Rs.1,51,916/- @ 9% per annum with proportionate costs to be paid by the respective Insurance Companies in their respective shares of negligence from the date of filing of the claim petition till its realization within a period of four weeks from the receipt of copy of this judgment and order.
14. In view of the above, the appeal is partly allowed. The impugned common judgment and award dated 07.12.2011 passed by the Motor Accident Claims Tribunal (Auxi.), at Surendranagar in MACP No.98 and 232 of 2002 is modified to the aforesaid extent. The record and proceedings to be sent back to the concerned Tribunal / Court.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 14 of 14 Uploaded by RINKU MALI(HC01574) on Fri Feb 21 2025 Downloaded on : Fri Feb 21 23:34:10 IST 2025