Gujarat High Court
United India Insurance Co. Ltd vs Champaben Mansukhbhai ... on 1 December, 2021
Bench: R.M.Chhaya
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 575 of 2009
With
R/CROSS OBJECTION NO. 2 of 2010
In
FIRST APPEAL NO. 575 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==============================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
UNITED INDIA INSURANCE CO. LTD
Versus
CHAMPABEN MANSUKHBHAI SHAH,SINCE DECD.THRU HIS HEIRS
& L.RS. & 4 other(s)
==============================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR GM JOSHI(370) for the Defendant(s) No. 2,3,4
RULE SERVED(64) for the Defendant(s) No. 1
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 5
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 01/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
common judgment and award dated 13.04.2006 passed by
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
the Motor Accident Claims Tribunal (Main), Vadodara in
Claim Petition No.788 of 1990, the present appeal is filed
under Section 173 of the Motor Vehicles Act, 1988 by the
present appellant.
2.0. Heard Mr. H.G. Mazmudar, learned advocate for the
appellant and Mr. Vyom Shah, learned advocate for the
original claimants. Though served, no one appears for other
respondents. We have also perused the record and
proceedings of the case.
3.0. The following facts emerge from the record of this
appeal:
3.1. That the deceased Jitendrakumar who was owner of
Truck bearing No. GRX 3365, was going towards Mumbai
and at that time, the truck was driving at moderate speed,
the opponent no.1 came with his truck bearing No. HIH
1181 and the said vehicle was driven at excessive speed and
with a view to overtake a vehicle going in front of him,
dashed with the truck of the deceased, because of rash and
negligent driving of the driver of the truck, accident
occurred and deceased sustained serious injuries and died
on account of injuries. An FIR was lodged with the
jurisdictional police station and claimants preferred present
claim petition under Section 166 of the Act and claimed
compensation at Rs.20 lakhs. The original claimants also
adduced following oral as well as documentary evidence
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
before the Tribunal.
Exh.No. Particulars
51 FIR
52 Panchnama
53 Inquest Panchnama
54 Wireless Message
55 Yadi
56 Postmortem
57 Receipt issued by VMC
58 Birth Certificate
59 Death Certificate
60 Driving License
61 Cattle Permit
62 Ledge of SBS
63 No due certificate
64 RC Book
65 Challan and Bills
66 Quotation
67 RC Book and Tax Receipt
68 Permit
The Tribunal after appreciating the evidence on record
and considering the submissions made by the respective
parties, partly allowed the claim petition and awarded the
compensation of Rs. 13,25,000/- with 7.5% interest from
the date of application till its realization with proportionate
costs. Being aggrieved and dissatisfied with the same, the
present appellant preferred the present appeal.
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
4.0. Mr. Mazmudar, learned advocate for the appellant
contended that in the claim petition filed by the original
claimant it was the case of the original claimant that he was
the owner of the truck and was plying it on his own and his
income was Rs.72,000/- pa whereas the Tribunal
considered the income of the deceased at Rs.1 lakhs pa
without there being basis thereof. Mr. Mazmudar contended
that even if the version made in the claim petition is
believed and is considered as basis for determining the
income of the deceased, the same cannot be more than
Rs.6000/- per month i.e. Rs.72,000/- pa. On the aforesaid
two grounds, it was contended by Mr. Mazmudar that the
impugned judgment and award deserves to be modified and
cross objection filed by the original claimant deserves to be
dismissed.
4.1. Mr. Mazmudar make an attempt to raise issue of
negligence, however it is matter of fact that Insurance
Company has accepted the award in relation to the other
cognate claim petition which came to be disposed of along
with present claim petition.
5.0. Mr. Shah, learned advocate for the original claimants
has supported the impugned judgment and award passed
by the Tribunal. Relying upon the judgment of the Hon'ble
Supreme Court in the case of Magma General Insurance Co.
Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in
(2018)18 SCC 130 and in the case of United India Insurance
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
Company Limited vs. Satinder Kaur @ Satwinder Kaur
reported in AIR 2020 SC 3076, it was contended by Mr.
Shah that the original claimants would be entitled to filial,
spousal and parental consortium. It was therefore,
contended that the appeal being meritless, same deserves to
be dismissed and cross objection filed by the original
claimants be allowed in toto.
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
7.0. Upon re-appreciating the evidence on record, it clearly
transpires that there is no basis for arriving at a conclusion
that the income is Rs.1 lakh pa. The maximum case of the
appellant in the claim petition was Rs.72,000/- pa. Though
reliance is placed on the deposition of Mehtaji Saifudin
Hasanali at Exh.98 who use to write the account of the
deceased, even if the same is perused, upon re-appreciation
of said piece of evidence including the extracts of account,
this Court finds that the income of the deceased cannot be
determined at Rs. 1 lakh pa. Even if the maximum case of
the original claimants taken into consideration, it can be
determined at Rs.6000/- per month i.e. Rs.72,000/- pa.
Over and above the same, original claimants would be
entitled to 40% rise in income by way of prospective income
and after deducting 1/4th towards personal expenses, the
appropriate multiplier would be 15 considering the age of
C/FA/575/2009 JUDGMENT DATED: 01/12/2021
the deceased to be 39 years on the date of accident. It is no
doubt true that following the judgment of the Hon'ble
Supreme Court in the case of the Satinder Kaur @
Satwinder Kaur (supra), the claimants would be entitled to
Rs.1,60,000/- towards spousal, parental and filial
consortium. However, upon re-calculating the
compensation, we find that award of Rs.13,25,000/- as
awarded by the Tribunal is just and proper and therefore,
the appeal as well as cross objection deserves to be
dismissed. Even if the benefit of consortium to claimants is
considered, the compensation which can be awarded would
be almost similar to what has awarded by the Tribunal.
Even though, this Court does not agree with the finding of
the Tribunal as far as income is concerned. As stated above,
even on re-calculating, the respondents - claimants would
be entitled to almost identical amount of compensation. In
such peculiar facts and circumstances, we do not find it fit
to disturb the impugned judgment and award keeping in
mind the quantum thereof and hence the appeal as well as
cross objection are dismissed. Registry is directed to
transmit back the R & P to the concerned Tribunal
forthwith.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
