Gujarat High Court
Reliance General Insurance Co. Ltd vs Nai Rekhaben Wd/O Prakashbhai Virabhai on 7 May, 2025
NEUTRAL CITATION
C/FA/1390/2025 ORDER DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1390 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 1390 of 2025
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RELIANCE GENERAL INSURANCE CO. LTD.
Versus
NAI REKHABEN WD/O PRAKASHBHAI VIRABHAI & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/05/2025
ORAL ORDER
[1] Being aggrieved and dissatisfied by the judgment and award dated 4th May 2024 passed in Motor Accident Claim Petition No.53 of 2016 by the learned 6 th Additional District Judge, Motor Accident Claims Tribunal (Ancillary), Banaskantha at Deesa, the Insurance Company - original opponent No.2 has approached this Court by way of this First Appeal under Section 173 of the Motor Vehicle Act, 1988 (for short, "the Act"). [2] The claimant has preferred Claim Petition under section 166 of the Act before the Tribunal claiming, inter alia, compensation of Rs.44,66,250/- with 12% interest for untimely Page 1 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined death of Prakash Virabhai Nai. However, the Tribunal has awarded a sum of Rs.44,89,365/- under various heads as can be stated as under:
"(8.4) Thus, the loss of future income could be estimated as below:
ADMISSIBLE AMOUNT OF COMPENSATION A LOSS OF DEPENDENCY + 4220365 B LOSS OF ESTATE + 16500 C FUNERAL EXPENSES + 16500 D LOSS OF LOVE AND AFFECTION (i.e. + 40000 10,000/- x 4) E LOSS OF SPOUSAL CONSORTIUM (Wife) + 44000 F LOSS OF PARENTAL CONSORTIUM (Son) + 44000 G LOSS OF FILIAL CONSORTIUM (Mother & + 88000 Father) H AMOUNT OF MEDICAL EXPENSES + 0 I PAIN, SHOCK, SUFFERING, ETC. + 5000 J ATTENDANT, TRANSPORTATION, Etc. + 10000 K LOSS OF ENJOYMENT + 5000 SUB TOTAL (In Rs.) 4489365 L Less : Amount toward contributory - 0 negligence M Less : Amount of paid Interim relief U/s. - 0 140 MVA (Exh. 5 = Not pressed) TOTAL ADMISSIBLE AMOUNT OF COMPENSATION 4489365 (in Rs.) [3] Brief facts of the case can be stated as under: Page 2 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025
NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined [3.1] On 23th November 2015 at about 4.30 p.m., the deceased Prakash Virabhai Nai was driving motorcycle No.GJ-8B- 9173. While passing from Palanpur to Siddhpur Highway Road, near I Mata Hotel from Dharewada from Palanpur side, one Tanker No.GJ-02-VV-2781 driven in rash and negligent manner by its driver and dashed with the motorcycle of the deceased from the backside. The deceased Prakash Virabhai Nai received grievous injuries from the said accident and ultimately, succumbed to the injuries.
[3.2] The claimant, being heir of Prakash Virabhai Nai, has approached the learned Tribunal by way of Claim Petition under Section 166 of the Act claiming compensation of Rs.44,66,250/- with 12% interest. Upon service of notice, the appellant - Insurance Company appeared through its lawyer and filed written submissions below Exhibit : 20 opposing, inter alia, the Claim Petition in toto.
[3.3] The learned Tribunal, however, after having appreciating the evidence placed on record, documentary evidence as well as oral, was pleased to hold the driver of the Tanker as Page 3 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined negligent for the accident in question. The learned Tribunal, thereafter, proceeded to award compensation under the various heads, for which, the income of the deceased was considered as Rs.2,36,435/- per annum keeping in mind the Income Tax Return of year 2015-16. Since the deceased was having four dependents at the time of accident, the learned Tribunal had adopted ¼ deduction. Considering the age of the deceased as 28 years, 40% future prospective income was also added and the multiplier was considered as 17. Thus, compensation under the head of loss of dependency of Rs.42,20,365/- came to be awarded. The learned Tribunal, thereafter, awarded Rs.16,500/- compensation under the head of loss of Estate to each of the claimants. The learned Tribunal was pleased to award Rs.16,500/- compensation under the head of funeral expenses. The learned Tribunal has also awarded compensation of Rs.10,000/- to each of the claimants (Rs.10,000/- x 4 = Total Rs.40,000/-) under the head of love and affection as well as Rs.44,000/- to each of the claimants under the head of loss of consortium. The Tribunal was also pleased to award compensation of Rs.5,000/- under the head of pain, shock and suffering and Rs.10,000/- under the head of attendant, Page 4 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined transportation and Rs.5,000/- under the head of loss of enjoyment. Thus, in all, the learned Tribunal awarded compensation of Rs.44,89,365/- with 9% interest.
[4] Being aggrieved and dissatisfied with the aforesaid, the appellant - Insurance Company has approached this Court by way of this First Appeal.
[5] I have heard learned advocate Mr. Rathin Raval for the appellant - Insurance Company.
[6] Learned advocate Mr. Rathin Raval for the appellant has mainly raised three contentions as under:
[6.1] Learned advocate Mr. Raval submitted that negligency on the part of the driver of the Tanker assessed by the Tribunal is not justified. Learned advocate Mr. Raval submitted that the Tribunal has committed a serious error in holding the driver of the Tanker as sole negligent without any cogent evidence on record. [6.2] Learned advocate Mr. Raval further submitted that so far as quantum is concerned, the Tribunal has not properly Page 5 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined appreciated the evidence on record and that has resulted into higher assessment of income.
[6.3] Learned advocate Mr. Raval thirdly contended that the driver of the Tanker was not having a valid driving license and thereby, the Insurance Company cannot be made responsible of such violation of the terms and conditions of the policy. [7] By making above submissions, learned advocate Mr. Raval for the appellant - Insurance Company has requested this Court to allow the present appeal.
[8] I have gone through the relevant documentary evidence in the form of paper book produced by the learned advocate Mr. Raval for the appellant - Insurance Company. [9] Having considered the documentary evidence in the form of paper book as well as the submissions made by the learned advocate for the appellant, a short question that falls for consideration of this Court is whether the award passed by the Tribunal can be said to be justified and legal? Page 6 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025
NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined [10] So as to decide the aforesaid question, in my view, first of all, it would be apt to take notice of the reasoning given by the learned Tribunal on the basis of the material produced on record. The relevant observations made in para 7.2 of the judgment and award can be read as under:
"(7.2). It is true that this witness is not eye witnesses. But, if we go through the complaint at Exh.-21, Place Panchnama at Exh.- 22 & P.M. Report at Exh.-24, it states about the accident took place, in which the deceased died in vehicular accident. Deceased was riding the Motor cycle No. GJ.8.B.9173 which was dashed by Tanker No. GJ.02.VV.2781 from back side. F.I.R. and Charge-sheet is filed against the driver of the Tanker. Moreover, the Opponents have not examined the driver of the Tanker. Further, being a big vehicle the driver of the Truck must take much more care while driving of his vehicle especially on highway road. So the driver of Tanker is 100% liable. The Opponent No. 1 is the owner of Truck which is evident from R.C.Book of Truck at Exh.-25 and Opponent No.2 is the Insurance Company of the Truck which is evident from Insurance Policy at Exh.-40 in which the policy period is shown as dtd.29/12/2014 to dtd.28/12/2015 and the accident was occurred on dtd.23/11/2015 and so the insurance policy was in force at the time of accident and therefore, Opponent No.2 shall have Page 7 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined to indemnify the Owner i.e. Opponent No.1. Therefore, Opponent No.1 & 2 being owner and insurance company will be jointly and severally liable to pay the compensation. Hence, I answer the ISSUE No.1 in AFFIRMATIVE." [11] Considering the aforesaid observations made by the Tribunal, in my view, the Tribunal cannot be said to have committed any illegality in holding the driver of the Tanker as sole responsible, I say so because the Insurance Company did not examine the driver of the Tanker. So as to discharge the onus of negligency on the part of the driver, in my considered opinion, the driver of the offending vehicle ought to have been examined by the Insurance Company. In the instant case, admittedly, the driver of the Tanker has not been examined and / or not stepped into the witness box. In such eventuality, so far as the aspect of negligency is concerned, the driver of other vehicle involved in the accident cannot be viewed adversely. Further, it appears that the driver of the Tanker dashed the motorcycle from the backside, therefore, cumulatively, this Court is of the opinion, that the Tribunal has not committed any error in holding that the driver of the Tanker was the sole negligent.
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NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined [12] So far as the quantum part is concerned, this Court has to see whether the compensation under the head of loss of dependency is awarded appropriately or not? So as to decide the compensation under the head of loss of dependency, income of the deceased or the victim deserves to be considered. In the instant case, income of the deceased came to be considered as Rs.2,36,435/- per annum. The learned Tribunal, while determining the income, has relied upon the Income Tax Return of the deceased for the year 2015-16. Thus, in my considered opinion, assessment of income taken into consideration by the Tribunal on the basis of the Income Tax Return cannot be said to be faulty. Further, keeping in mind the age of the deceased as 28 years, multiplier adopted of 17 is also perfectly justified. Keeping mind the age of the deceased, future prospective income of 40% added by the Tribunal is also found in consonance with the decision of the Hon'ble Apex Court.
Accordingly, in my considered opinion, income of the deceased assessed / considered by the Tribunal so as to award compensation under the head of loss of dependency is perfectly justified and thus, no modification is required so far as the compensation under the Page 9 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025 NEUTRAL CITATION C/FA/1390/2025 ORDER DATED: 07/05/2025 undefined head of loss of dependency is concerned.
[13] So far as the contention with regard to valid driving license of the driver of the Tanker is concerned, the said contention was not raised by the appellant - Insurance Company before the Tribunal and even no evidence was led to that effect. Merely by disputing the driving license of the offending vehicle / insured vehicle, the Insurance Company cannot claim exoneration from the liability of payment of compensation to the third party. Considering the totality of the facts and circumstances, this Court is of the considered opinion that the judgment and award passed by the learned Tribunal is just and proper and deserves no interference.
I answer the question accordingly.
[14] For the foregoing reasons, present appeal preferred by the appellant - Insurance Company being bereft of any merit is hereby dismissed. Consequently, connected Civil Application stands disposed of.
(NIRAL R. MEHTA,J) CHANDRESH Page 10 of 10 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Mon Jun 02 2025 Downloaded on : Fri Jun 06 21:18:10 IST 2025