Oriental Insurance Company ... vs Mukeshbhai Popatlal Pandya
2021 Latest Caselaw 18232 Guj

      C/FA/4098/2009                            JUDGMENT DATED: 08/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   R/FIRST APPEAL NO. 4098 of 2009

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                                   sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT                               sd/-
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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 ?

==============================================================
                 ORIENTAL INSURANCE COMPANY LIMITED
                                Versus
                MUKESHBHAI POPATLAL PANDYA & 2 other(s)
==============================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No.
1.1,1.2,1.3,1.4,1.5
RULE SERVED(64) for the Defendant(s) No. 2
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
            and
            HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                       Date : 08/12/2021
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Feeling aggrieved and dissatisfied with the impugned common judgment and award dated 14.07.2009 passed by the Motor Accident Claims Tribunal (Auxi), Ahmedabad in MACP No.181 of 2002, the appellants Insurance Company has preferred present appeal under Section 173 of the Motor Vehicles Act, 1988.

C/FA/4098/2009 JUDGMENT DATED: 08/12/2021

2.0. The following facts emerge from the record of this appeal:

2.1. That the accident occurred on 2.9.2001 at about 1.00 pm when the deceased was returning Bahiyal to Ahmedabad in Maruti Zen and when deceased parked their car on the side of the road and after alighting from the Car when deceased was standing on the side of the road to cross the road, at that time, the driver of Truck bearing registration No. DL-1-G-3572 came with his truck with full speed in rash and negligent manner and dashed with the car of deceased and deceased, because of which, deceased sustained serious injuries and succumbed to the same. An FIR was lodged with the jurisdictional Police Station. It is the case of the appellants that deceased was aged about 48 years at the time of accident. The appellants preferred claim petition under Section 166 of the Act and claimed compensation at Rs. 75 lakh. The appellants also adduced following oral as well as documentary evidence before the Tribunal:

Exh.No.               Particulars
112                   Complaint
113                   Panchnama of place of accident.
114                   Inquest panchnama of the deceased
115                   Charge sheet
92                    Deposition of partner of M.s Manish Tobacco
83                    Deposition of brother of deceased Rameshbhai
                      Dave




      C/FA/4098/2009                                JUDGMENT DATED: 08/12/2021



106                   PM Report
29                    School leaving certificate of the deceased

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.68,54,320/- with 9% interest from the date of application till its realization with proportionate costs. Being aggrieved and dissatisfied with the same, the present appellant preferred present appeal.

3.0. Heard Mr. Dakshesh Mehta, learned advocate for the appellant- Insurance Company and Ms. Mausami Nanavati, learned advocate for the original claimants. Though served, nobody appears on behalf of other respondents. The learned advocates for the parties have provided Xerox copy of the relevant evidence on record for perusal of this Court.

4.0. Mr. Mehta, contended that prospective income has rightly been not granted by the Tribunal. Mr. Mehta contended that considering the age of the deceased as 45 years, the multiplier of 14 will be applicable and not 17 as granted by the Tribunal. Mr. Mehta further contended that Tribunal has rightly considered average monthly income of the deceased at Rs.50,000/-. On the aforesaid grounds, Mr. Mehta submitted that appeal be allowed as prayed for.

5.0. Ms. Mausami Nanavati, learned advocate for the

C/FA/4098/2009 JUDGMENT DATED: 08/12/2021

original claimants has relied upon the judgment of the Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121, in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680, in the case of New India Assurance Company Limited vs. Somwati and Ors reported in (2020) 9 SCC 644 and in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 and in the case of Magma General Insurance Co. Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in (2018)18 SCC 130 has submitted that income of the deceased is determined at Rs.50,000/- per month and original claimants would be entitled for parental and filial consortium of Rs.40,000/- each. Ms. Nanavati contended that in facts of this case, the Tribunal has committed an error in not awarding in future prospective income, which ought to have been given by the Tribunal to the tune of 25%. Ms. Nanavati contended that the award being just and proper does not require any interference. Ms. Nanavati submitted that appeal being meritless, deserves to be dismissed.

6.0. No other and further submissions/ contentions have been made by the learned counsel for the respective parties.

7.0. We have heard learned advocates for the respective parties and considered the oral and documentary evidence on record. That as per the judgments of the Hon'ble Supreme

C/FA/4098/2009 JUDGMENT DATED: 08/12/2021

Court in the case of Sarla Verma and ors (supra) as well as in the case of Pranay Sethi & ors (supra), the deceased was 45 years and was director of Shefali Steel Limited and was having two partnership firm, the claimants would be entitled to prospective income to the extent of 25%. Similarly, the the age of the deceased was 45 years at the time of accident, the appropriate multiplier would be 14 and not 17 as granted by the Tribunal. Following the ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma and ors. (supra), 1/4th of the income is required to be deducted towards personal expenses. Upon reappreciation of the evidence on record, the original claimants would be entitled to prospective income to the tune of 25% however, since original claimants have not preferred any appeal against the impugned judgment and award, they are not entitled for the same. Upon re- appreciation of the evidence and as per the ratio laid down by the Hon'ble Supreme Court in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur (supra) as well as in the case of Somwati and Ors (supra), the respondents claimants who are not in appeal before this Court, would be entitled to further compensation by way of filial and parental consortium to the tune of Rs.1,20,000/-. Upon re-appreciation of the evidence, as such the original claimants would be entitled to total compensation of Rs.80,65,000/- instead of Rs.68,54,320/- as granted by the Tribunal. However, as the claimants have not preferred any appeal, the present appeal filed by the Insurance Company deserves to be dismissed and is hereby

C/FA/4098/2009 JUDGMENT DATED: 08/12/2021

dismissed.

Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

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(R.M.CHHAYA,J)

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(MAUNA M. BHATT,J) KAUSHIK J. RATHOD