Gujarat High Court
Heirs Of Bharat Shambhu Vasoya ... vs Mer Maldebhai Varsibhai ... on 2 December, 2021
Bench: Ashutosh J. Shastri
C/FA/28/2013 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 28 of 2013
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
In
R/FIRST APPEAL NO. 28 of 2013
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HEIRS OF BHARAT SHAMBHU VASOYA SHAMBHUBHAI POPATBHAI
VASOYA & 2 other(s)
Versus
MER MALDEBHAI VARSIBHAI KUCHCHHADIYA & 2 other(s)
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Appearance:
MR AMAR D MITHANI(484) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE UNSERVED(68) for the Defendant(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 02/12/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. This is a claimants' appeal calling in question the judgment and
award dated 04.01.2012 passed in Motor Accident Claim Petition No530
of 1999 whereunder claim petition filed under Section 166 of the Motor
Vehicles Act, 1988 came to be allowed in part and total compensation of
Rs.20,72,000/- with interest @ 7.5% from the date of the application till
deposit or realisation with proportionate costs has been allowed on the
ground that compensation awarded is on the lower side or in other words
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not being satisfied with the quantum of compensation claimants are
seeking enhancement of the same as well as assailing the said award on
the ground that Tribunal committed a serious error in fastening 30%
contributory negligence on the deceased.
2. The accident is of the year 1999 and the claim petition has been
filed on 24.06.1999 and even after 22 years, the issue for compensation
is still pending before this Court. Hence, this appeal is taken up for final
disposal.
3. We have heard Mr. Amar Mithani, learned counsel appearing for
the appellants / claimants and Ms. Krupali Bhatt, learned counsel
appearing on behalf of Mr. Palak Thakkar, learned counsel for the
respondent insurer.
4. It is the contention of Mr. Mithani, learned counsel appearing for
the appellants / claimants that Tribunal has awarded abysmal
compensation on the ground of adopting an inappropriate multiplier and,
as such, contending that computation of compensation under the head of
'loss of future income'. He would also elaborate his submission by
contending that Tribunal committed a serious error in awarding
compensation of Rs.10,000/- for spousal consortium and parental
consortium and, as such, he seeks for enhancement of the compensation.
C/FA/28/2013 ORDER DATED: 02/12/2021
He would also contend that Tribunal committed an error in fastening 30%
liability on the deceased only on the ground that two vehicles were
involved in the accident. Hence, he prays for allowing the appeal and
prays for compensation being enhanced and prays for deceased being
absolved of his liability by directing the insurer to indemnify the claim in
its entirety.
5. Per contra, Mr. Thakkar, learned counsel appearing for the insurer
has supported the award of the Tribunal and would contend that what has
been awarded by the Tribunal itself is on the higher side and, as such, he
has prayed for appeal being dismissed and the findings recorded by the
Tribunal being affirmed. He would also contend that deceased was an ad
hoc employee and not a permanent employee and, as such, Tribunal
ought to have considered 40% as loss of future prospect and prays for the
compensation awarded by the Tribunal being scaled down.
6. Mr. Thakkar, learned counsel appearing for the insurer would
vehemently contend that compensation awarded by the Tribunal itself is
on the higher side and he would also submit that Tribunal had committed
a serious error in not deducting income tax which from the taxable
income of the claimants. He would also elaborate his submission by
contending that deceased was an ad hoc employee and Tribunal could not
have considered future prospect of 50% and it ought to have been at 40%.
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7. Having heard learned counsels appearing for the parties and on
perusal of the judgment and award passed by the Tribunal as well as
perusal of the records secured from the Tribunal, we are of the considered
view that following points would raise for our consideration:
(i) Whether Tribunal was correct and justified in holding
that there was contributory negligence on the part of the
deceased to the accident of 30% and, as such, the insurer is
to be absolved of its liability to the said extent?
(ii) Whether the compensation awarded by the Tribunal is
just and reasonable? And if not, to what extent it requires to
be enhanced?
8. The facts as obtained before the Tribunal which has led to the
filing of this appeal are crystallised hereinbelow.
9. On account of a road traffic accident that occurred on 30.03.1999,
son of claimant Nos.1 and 2 and husband of claimant No.3 died due to the
accidental injuries. The said accident occurred on 30.03.1999 at about
8.00 a.m. while the deceased was proceeding on his motorcycle from
Visavadar to Junagadh and when he reached village Mevasa, the driver of
the dumper coming from opposite direction who drove his vehicle in full
C/FA/28/2013 ORDER DATED: 02/12/2021
speed in a rash and negligent manner had dashed against the motorcycle
and dragged the vehicle along with body of the deceased for about 37 ft.
which resulted in deceased sustaining grievous injuries and, as such, he
died at the spot. The offending vehicle viz. dumper was insured with
respondent No.3 herein and the policy issued to the offending vehicle was
in vogue as on the date of accident and this is an undisputed fact. As
such, we are not delving upon the details thereof except to the extent
expressly required for adjudicating the points formulated hereinabove and
accordingly, we proceed point No.(i).
RE: POINT No.(i)
As noticed from the records, the deceased was proceeding on his
motorcycle on Bilkha - Visavadar Road and when he reached Mevasa at
about 8.00 a.m., the dumper bearing Registration No.GTP-4699 which
came from opposite direction in full speed had dashed against the
motorcycle driven by the deceased, as a result of which the deceased was
dragged along with his vehicle by the dumper for about 37 ft. as
evidenced from the panchnama and on account of grievous injuries
sustained, he had succumbed at the spot. It is no doubt true that wife of
the deceased who was examined on oath as per Exh.47 as deposed to the
said fact was not an eyewitness. However, the records produced before
the Tribunal viz. panchnama, FIR disclose that driver of the offending
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vehicle was charge-sheeted for the offence of rash and negligent driving.
Neither the insured viz. owner of the vehicle nor the driver of the vehicle
was examined by the insurer. In fact, insurer has not challenged the
contents of the charge-sheet or FIR viz. Exh.48 and Exh.49. In the
complaint that came to be lodged against the driver of the dumper, it has
been specifically contended that driver of the dumper was driving his
vehicle negligently in a rash and negligent manner which caused the
accident and resulted in death of the driver of the scooter. In fact,
Tribunal after appreciation of entire evidence which was available before
it at paragraph 10 has recorded the following findings:
"10. In support of their oral evidence, the claimants ... ...
... opposite opponent No.1. It is argued that there were
marks upto the length of 36 feet of dragging of scooter of the
deceased by the dumper and considering the direction of
both the vehicle, the dumper was found on the wrong side of
the road. As against this, drawing attention ... ... ... author
of accident. As such, there is word against word.
Moreover, the contents of the Panchnama are not so specific
that relying on the same exact conclusion as to the
negligence can be arrived at. The Panchnama also does not
show any break marks either of the dumper or of the
motorcycle from which any inference as to negligence can
be drawn. The opponent No.1 was the best person to
explain the circumstances under which the accident had
taken place. However, he has also not stepped into witness
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box to disclose the circumstances under which the accident
had taken place. Moreover, it is also pertinent to note that
the opponent No.1 was driving a heavy vehicle and the
deceased was driving a motor cycle. Therefore, being a
driver of heavy vehicle, it was the duty of opponent No.1 to
take more care and caution to see that the opposite vehicle
passes from the road easily. In the circumstances, ... ... ...
occurrence of the accident."
Having said so, Tribunal has suddenly jumped to a conclusion that there
has to be negligence on the part of the driver of the motorcycle as two
vehicles were involved. As observed hereinabove, charge-sheet was filed
against the driver of the motor vehicle and as per Exh.48 the offence for
which he was charged was for the offences punishable under Sections
279, 304A of IPC and Sections 199, 177 read with Section 134 of the
Motor Vehicles Act and issuance of charge-sheet against driver of the
dumper having not been challenged by the owner of the vehicle, i.e.
insured as well as insurer, they cannot be heard to contend that there was
contributory negligence on the part of the deceased. The dumper which
is a heavy vehicle and the accident in question having occurred on 20 ft.
width road and also the fact that driver of the offending vehicle having
driven his vehicle negligently in a rash and negligent manner as reflected
in the FIR, for which offence he has been charged and tried by the
jurisdictional Magistrate Court, the irresistible conclusion which has to be
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drawn is that Tribunal committed a serious error in arriving at a
conclusion that deceased who was driving the motorcycle was also
negligent in the accident and had caused the accident. The said finding
being contrary to facts and contrary to documentary evidence available on
record said finding, it cannot be sustained. Accordingly, we answer point
No.(i) in favour of the appellants / claimants and against respondent No.3
insurer.
RE: POINT No.(ii)
Insofar as the determination or computation of compensation payable to
the claimants, Tribunal has awarded following compensation:
Amount in Rs. Particulars
Rs.29,40,000/- Loss of Future Income
Rs.5,000/- Loss of Estate
Rs.5,000/- Funeral Expense
Rs.10,000/- Loss of Consortium
Rs.20,72,000/- Total Compensation
The argument of insurer could that compensation awarded towards
future loss of income to claimants is on higher side though looks
attractive at first blush, it is not so, for the simple reason that
income that has been construed by the Tribunal at Rs.17,500/-
itself is on the lower side. However, on account of overwhelming
documentary evidence available on record Tribunal has rightly
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taken the income of the deceased based on documentary evidence.
In fact, this Court cannot rule out the fact that deceased was an
M.B.B.S. and M.D. (Medicine) degree holder and having
completed Post Graduate, had been appointed on ad hoc basis at
Government Hospital. It is a common factor that a doctor would
also have his private practice and if that is to be construed, his
income which has been taken into consideration at Rs.17,500/- per
month itself is on the lower side and as observed by us
hereinabove, the documentary evidence tendered by the claimants
itself disclosing that he was getting salary of Rs.17,500/-, said
finding is not disturbed. Insofar as contention for deduction of tax
from out of the income of the deceased is concerned, it would not
arise since what has been considered by the Tribunal is based on
the salary certificate which is just and reasonable and further
deduction if any then would only result in reducing award of just
and reasonable compensation. As such, we are not impressed by
the contentions raised by Mr. Thakkar, learned counsel and it
stands rejected.
Tribunal, while computing 'future loss of income', has rightly taken into
consideration the income of the deceased at Rs.17,500/- and has added
50% towards loss of future prospect as held by the Hon'ble Supreme
C/FA/28/2013 ORDER DATED: 02/12/2021
Court in case of National Insurance Company Ltd. vs. Pranay Sethi,
reported in (2017) 16 SCC 680 (para 59.3) and computed the monthly
income at Rs.26,250/- or Rs.3,15,000/- per annum. While adopting the
multiplier, Tribunal has construed the age of the deceased at 30 years and
has adopted multiplier of 14. This is contrary to the judgment of the
Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport
Corporation, reported in (2009) 6 SCC 121 whereunder it has been held,
where deceased is in the age group of 26 to 30 years, appropriate
multiplied is 17. Hence, we are of the considered view that Tribunal
committed a serious error in adopting multiplier of 14. Thus,
compensation towards loss of income requires to be re-determined and
we do so as follows:
Sr. No. Particulars
1. Loss of future income
17,500 X 50% = 8,7570
17,500 + 8,750 = 26,250
26,250 X 12 = 3,15,000 X 17 53,55,000
2. 1/3rd is deducted towards living expenses (since dependents are
three in number), i.e. Rs.17,85,000
Total loss of future income Rs.35,70,000
3. Loss of Estate Rs.15,000
Funeral Expense Rs.15,000
4. Loss of Consortium viz. spousal consortium to
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wife and parental consortium to the parents
@ Rs.40,000 X 3 - Rs.1,20,000
Total Rs.37,20,000
The Hon'ble Supreme Court in case of United India Insurance
Company Ltd. vs. Satinder Kaur @ Satwinder Kaur, reported in 2020
SCC Online SC 410 as well as in case of The New India Assurance
Company vs. Somwati, reported in (2020) 9 SCC 644 as awarded the loss
of estate, has held that compensation towards loss of estate and
compensation towards loss of consortium is to be awarded as indicated
hereinabove. Accordingly, we have awarded the same. Thus, we answer
point No.(ii) partly in favour of the appellants / claimants and against
respondent No.3 insurer.
10. For the reasons aforestated, we proceed to pass following
ORDER
(i) Appeal is allowed.
(ii) Judgment and award dated 04.01.2012 passed by the
Motor Accident Claims Tribunal (Main), Junagadh in Motor
Accident Claim Petition No.530 of 1999 is hereby modified
and in substitution to what has been awarded by the
Tribunal, we award a sum of Rs.37,20,000/- with interest @
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6% per annum from the date of application till date of
payment or deposit whichever is earlier.
(iii) The finding of the Tribunal of fastening 30%
contributory negligence on the part of the deceased claimant
is hereby set aside and it is ordered that entire compensation
amount is liable to be indemnified by respondent No.3
insurer by depositing the same before the jurisdictional
Motor Accident Claims Tribunal expeditiously and at any
rate within an outer limit of six weeks from the date of
receipt of copy of this order, excluding the amount if any
already deposited.
11. In view of the order passed in main appeal, civil application stands
disposed of as having become infructuous.
(ARAVIND KUMAR,CJ)
(ASHUTOSH J. SHASTRI, J)
Bharat
