Gujarat High Court
New India Assurance Co. Ltd vs Master Bhavesh Sunil Gupta on 2 December, 2021
Bench: R.M.Chhaya
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2435 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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NEW INDIA ASSURANCE CO. LTD.
Versus
MASTER BHAVESH SUNIL GUPTA & 6 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
JEET Y RAJYAGURU(8039) for the Defendant(s) No. 6
MOSON LE EXPARTS(11071) for the Defendant(s) No. 1,3
RULE SERVED(64) for the Defendant(s) No. 4,5,7
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 02/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 17.02.2017 passed by the
Motor Accident Claims Tribunal (Aux)(Adhoc),
Gandhidham-Kachchh in MACP No. 119 of 2002, the
insurance company has preferred the present appeal
under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act").
2. The following facts emerge from the record of
the appeal -
2.1 That on 01.02.2002, at about 20:00 pm, the
deceased Sunil Dindayal Gupta, was going to Anjar
from Bhuj by driving Maruti car bearing registration
no. GJ-12-V-175. The deceased Sunil was driving the
said car in slow speed and on the correct side of the
road. When he reached near Sugariya Fatak towards
Ratnal village, at that time, one tempo bearing
registration no. GJ-12-V-8367, came from the opposite
side being driven rashly and in negligent manner with
excessive speed dashed with the Maruti car due to
which it caused fatal accident. Deceased sustained
fatal injuries and succumbed to the injuries. It is
the say of the of the original claimants before the
Tribunal that the accident occurred due to the sole
negligence of the driver of the tempo. FIR came to
be lodged with the jurisdictional police station.
Claim petition under Section 166 of the Act came to
be filed claiming compensation of Rs. 50,00,000/-.
2.2 Oral as well as documentary evidences were
relied upon by the parties before the Tribunal.
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
Original claimant no.3 Smt Kantaben Dindayal Gupta
gave her deposition at exhibit 42. Claimant had
relied upon documents such as FIR at exbhibit 45,
panchnama of the place of accident, inquest panchnama
at exhibit 46, PM note at exhibit 47, R.C. book of
the tempo at exhibit 48, insurance premium receipt of
tempo at exhibit 49, pay slip of the deceased at
exhibit 44, RC book of maruti car at exhibit 50,
insurance policy of the maruti car at exhibit 51.
The Tribunal, after appreciating the evidence on
record, awarded compensation of Rs. 22,48,896/- with
interest at the rate of 9% p.a. from the date of
filing of the claim petition till its realisation.
Being aggrieved by the same, the original insurance
company has preferred this appeal.
3. Heard Mr. Palak Thakkar, learned advocate for
the appellants, Mr. Akshat Khare, learned advocate
for respondents no.1 and 3-original claimants and Mr.
Jeet Rajyaguru, learned advocate for respondent no.6.
Though served, no one appears for the other
respondents. We have also perused the original
record and proceedings.
4. Mr. Palak Thakkar, learned advocate appearing
for the appellant has produced on record certified
copy of the panchnama along with panchnama of the
occurrence. However, the same is not found from the
record and proceedings. Copy of the same is taken on
record and considered by this Court. Mr. Thakkar,
learned advocate contended that the manner in which
the accident has taken place, the car as per the
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
panchnama was found on the wrong side, i.e., on right
side of the road. Mr. Thakkar pointed out that the
Tempo was coming from Anjar to Bhuj and deceased was
driving from Bhuj to Anjar. According to Mr.
Thakkar, the deceased was driving his Maruti car on
wrong side and therefor, he is equally negligent.
Mr. Thakkar therefore contended that the Tribunal has
committed an error by consider driver of the tempo as
solely negligent. Mr. Thakkar further contended that
the Tribunal has calculated excessive income. Lastly
it was contended that the Tribunal has awarded Rs.
2,25,000/- under different conventional heads
including funeral expenses. Relying upon the
judgment of the Apex Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in
2017 (16) SCC 680 and Satinder Kaur alias Satwinder
Kaur and Ors. reported in AIR 2020 SC 3076, Mr.
Thakkar contended that the conventional amount and
more particularly, consortium has to be reduced. On
the aforesaid grounds, it was contended by Mr.
Thakkar that the appeal be allowed and the impugned
judgment and award be modified.
5. Mr.Jeet Rajyaguru, learned counsel appearing for
the respondent no.6 has supported the impugned
judgment and award.
6. Mr. Akshat Khare, learned counsel appearing for
the original claimants submitted that the aspect of
negligence has been correctly appreciated by the
Tribunal. Mr. Khare contended that there is nothing
on record to show that the Maruti car was being
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
driven in wrong side and it was contended that only
because the panchnama was prepared after the
accident, which shows that the car was found on the
off-road, i.e., right side, the same cannot be
construed as driving the vehicle on the wrong side.
Mr. Akshat Khare, contended that the appellant
insurance company has not proved that the motor car
was being driven in the wrong side. Supporting the
impugned award, it was contended by Mr. Khare that
the income is determined by the Tribunal upon
appreciating the evidence of salary slip at exhibit
44 and the same cannot be in any manner termed as
excessive. Mr. Akshat Khare further contended that
the compensation awarded under the conventional heads
is just and adequate which does not require any
modification. Mr. Khare contended that the appeal
being meritless, deserves to be dismissed.
7. No other or further submissions have been made
by the learned counsel appearing for the respective
parties.
8. We have considered the FIR at exhibit 45 and the
copy of the panchnama which was produced on record by
Mr. Palak Thakkar, learned counsel appearing for the
appellant with the consent of the learned counsels
appearing for the other respondents. Upon re-
appreciating the said piece of evidence, it is no
doubt true that in the panchnama, it is mentioned
that the car was found on the right side of the road
going from Bhuj towards Anjar. It is an admitted
position that the insurance company has not examined
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
the driver of the tempo who was very much available
to the appellant insurance company. Such has to be
viewed as adverse inference against the appellant.
Even if the panchnama is re-appreciated, the same
does not indicate that the car was being driven in
the wrong side. On the contrary, the panchnama
recites the extent of damage caused to the maruti car
and the deceased was almost cut to pieces by the
impact of the accident. The same therefore indicates
that the tempo though being driven on its right side
was being driven in rash and negligent manner. The
damage to the tempo is just minimum. Upon re-
appreciation of the evidence on record, we find that
the Tribunal has committed no error in coming to the
conclusion that the driver of the tempo was solely
negligent. The contention raised by the learned
counsel for the appellant that both the driver should
be equally held to be negligent is without any basis
and the same deserves to be negatived.
9. As far as the aspect of income is concerned, we
find that the Tribunal has considered the pay-slip at
exhibit 44. The same indicates that the deceased was
working with M/s. Captain Kochar and Co. and was
earning Rs. 16,000/- p.m. The Tribunal has
considered the income to be gross income minus tax.
The same is found to be proper and no alteration or
modification is required. The original claimants are
minor son and parents and therefore, the original
claimants would be entitled to parental and filial
consortium only to the tune of Rs.1,20,000/-
C/FA/2435/2017 JUDGMENT DATED: 02/12/2021
(Rs.40,000 X 3). Over and above the same, they would
be entitled to a further amount of Rs.30,000/- under
the head of loss of affection and funeral charges.
Thus, the original claimants would be entitled to
Rs.1,50,000/- under different conventional heads
including funeral expenses including filial and
parental consortium, whereas we find that the
Tribunal has awarded Rs.2,25,000/-. Following the
judgment of the Apex Court in the case of Pranay
Sethi (supra) and Satinder Kaur (supra), the same
deserves to be reduced by Rs.75,000/-.
10. In light of the aforesaid, the the original
claimants would be entitled to total compensation of
Rs.21,73,896/- (Rs.20,23,896/- towards loss of
dependency + Rs.1,50,000/- towards loss of
affection, funeral charges and filial and parental
consortium). The appeal is thus partly allowed. As
the Tribunal has awarded Rs. 22,48,896/- as total
compensation, the appellant insurance company is
entitled for refund of Rs.75,000/- with proportionate
cost and interest forthwith. Record and proceedings
be transmitted to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
