Gujarat High Court
Oriental Insurance Company ... vs Pritiben Rupinchandra Dave on 8 December, 2021
Bench: R.M.Chhaya
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4097 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 ?
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ORIENTAL INSURANCE COMPANY LIMITED
Versus
PRITIBEN RUPINCHANDRA DAVE & 2 other(s)
==============================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1.1,3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 1.2,1.3
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.180 of 2002, the appellants Insurance Company
has preferred present appeal under Section 173 of the Motor
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
Vehicles Act, 1988.
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. 5 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
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
Dave
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.7,75,000/- 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
wrongly considered by the Tribunal. Mr. Mehta contended
that considering the age of the deceased as 43 years, the
multiplier of 14 will be applicable and not 16 as granted by
the Tribunal. On the aforesaid grounds, Mr. Mehta
submitted that appeal be allowed as prayed for.
5.0. Ms. Mausami Nanavati, learned advocate for the
original claimants has relied upon the judgment of the
Hon'ble Supreme Court in the case of Sarla Verma and ors.
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
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.3000/- 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 rightly granted income by way of prospective
income, which does not require any modification. 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. Mr. Mehta, learned advocate for the appellant is
correct in ascertaining that even as per the judgments of the
Hon'ble Supreme Court in the case of Sarla Verma and ors
(supra) as well as in the case of Pranay Sethi & ors (supra),
the deceased was 43 years and was doing the business of
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
Mathiya Papad, the claimants would be entitled to prospective
income only to the extent of 25%. Similarly, the the age of the
deceased was 43 years at the time of accident, the appropriate
multiplier would be 14 and not 16 as granted by the Tribunal.
Following the ratio lay down by the Hon'ble Supreme Court
in the case of Sarla Verma and ors. (supra), 1/3rd of the
income is required to be deducted towards personal
expenses. Having come to the aforesaid conclusion, the
original claimants would be entitled to compensation under
the head of future loss of income as under;
"Rs. 3000/- per month (income) + Rs.750/- (25%
prospective income) = 3750/- -1250/- (1/3 towards
personal expenses = Rs.2500/- x 12 (p.a.)= 30,000/-
X 14 (Multiplier as the age of the deceased was 43
years) = 4,20,000/-.
Following the ratio laid down by the Hon'ble
Supreme Court in the case of Satinder Kaur @ Satwinder
Kaur (supra), in the case of Somwati and Ors (supra) and
in the case of Magma General Insurance Co. Ltd (supra),
the original claimants would also be entitled to parental
and filial consortium of Rs.40,000/- each, Rs.15000/-
towards loss of estate and Rs.15000/- towards funeral
expenses.
8.0. Having come to the aforesaid conclusion, therefore,
the appellants would be entitled to total compensation as
under:
C/FA/4097/2009 JUDGMENT DATED: 08/12/2021
Particulars Amount (Rs.)
Future loss of income 4,20,000/-
Parental & filial consortium 1,20,000/--
Loss of estate 15,000/-
Funeral Expenses 15,000/-
Total Compensation 5,70,000/-
9.0. Thus, the claimants would be entitled to compensation of
Rs.5,70,000/- with 9% interest from the date of application till
its realization. As the Tribunal has awarded an amount of
Rs.6,31,000/-,the appellant Insurance Company shall
therefore, be entitled to refund of Rs.61,000/- with
proportionate interest and costs thereon. The Tribunal shall
refund the said amount forthwith to the appellant Insurance
Company. In view of the aforesaid, the impugned judgment
and award passed by the Tribunal is modified to the aforesaid
extent. Thus, appeal is partly allowed to the aforesaid extent.
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.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
