Gujarat High Court

United India Insurance Co. Ltd vs Legal Heirs Of Decd. Anil ... on 9 December, 2021

Bench: Hemant M. Prachchhak

      C/FA/3836/2009                               JUDGMENT DATED: 09/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3836 of 2009
                                    With
                       R/FIRST APPEAL NO. 4304 of 2006

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

================================================================

1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            Yes

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                  UNITED INDIA INSURANCE CO. LTD
                               Versus
     LEGAL HEIRS OF DECD. ANIL HEMANTLAL JANKHARIA & 1 other(s)
================================================================
Appearance:
SHARMISHTA A DAVE(8735) for the Appellant(s) No. 1
MR PREMAL RACHH(64) for the Defendant(s) No. 1.1,1.2,2
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                               Date : 09/12/2021

                              ORAL JUDGMENT

1. The First Appeal No.3836 of 2009 is filed by the

appellant - Insurance Company against the quantum and

negligence and First Appeal No.4304 of 2006 is filed by

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

the appellants - original claimants seeking enhancement

of the compensation amount awarded by the Motor

Accident Claims Tribunal (Aux.), Jamnagar (hereinafter

referred to as "the Tribunal) dated 23.05.2005 passed in

M.A.C.P. No.117 of 2002.

2. Brief facts of the present case are that on

08.11.2001, Anil Hemantlal Jankhariya was going on his

motorcycle bearing registration no.GJ-10-L-3768, at about

2.30 p.m., near 8 kilometers away from Dhorivav road,

one rickshaw came from opposite direction driven by

original opponent no.1 in rash and negligent manner

dashed with the motorcycle of said Anil Jankhariya, as a

result of which, he sustained serious injuries and

succumbed to the injuries. Hence, the claimant had

preferred M.A.C.P. No.117 of 2002, which came to be

partly allowed by the Tribunal vide order dated

23.05.2005 and awarded compensation of Rs.3,70,000/-

as against her claim of claiming Rs.10,00,000/-.

3. Heard Ms.Sharmishta Dave, learned counsel

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

appearing for the appellant and Mr.Premal Rachh, learned

counsel appearing for the respondents.

4. Learned counsel appearing for the appellant -

Insurance Company has submitted that the Tribunal has

committed serious error in considering the 20%

negligency of the deceased and also not considered the

panchnama and the deposition of the driver. She has

submitted that the Tribunal has committed serious error in

rd deducting only 1/3 amount for the personal expenses of

the deceased and calculating the amount of compensation

on a higher side. She has submitted that the Tribunal has

multiplier of 15 which is not just and proper looking to the

age of the deceased. She has submitted that the Tribunal

has also committed serious error in considering the

income of the deceased which is much on a higher side

and also in calculating the future loss of income to the

family. She has submitted that as per the panchnama and

the FIR at Exhibit 67 and 68 and statement of driver at

Exhibit 100, at the time of accident, the road was clear

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

and wide enough, the motorcycle came in full speed in

wrong side and dashed with right side of the rickshaw and

due to the accident, wooden box was damaged and

rickshaw fell down in the dig of road. She has submitted

that at the time of accident, the motorcycle was in full

speed and deceased was driving his vehicle in rash and

negligent manner and he himself was sole responsible for

the accident. He has submitted that as per the statement

of the driver at Exhibit 100, the deceased was only

responsible for the accident and tortfeasor is not entitled

for any compensation from the opponents. She has

submitted that as the deceased was unmarried, learned

rd Tribunal had deducted only 1/3 for personal expenses,

1/2 amount should have been deducted as per the

decision of the Apex Court in the case of National

Insurance Company Limited Vs. Pranay Sethi and others,

(2017) 16 SCC 680. She has submitted that the deceased

was government servant and serving at Village: Lavadiya

as Vidhya Sahayak on temporary basis and he was not

permitted to leave the service place without prior approval

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

of the competent authority and his salary was fixed at

Rs.2,500/- per month at the time of accident and there

was no any assurance for permanent service from the

authority. She has further submitted that there was no any

documentary evidence regarding extra income, like pay

slip, vouchers or bank passbook produced by the

deceased or by the witness. She has submitted that

considering the deposition of witness No.4 Kantilal at

Exhibit 73 and witness No.5 Kishorbhai at Exhibit 91, it

appears that deceased was a part time teacher and

appointment of Vidhya Sahayak is not transferable job and

after completion of two years satisfactory work the

assessment is made by the District Education Officer. She

has also submitted that extra earning by the deceased is

not satisfactory and, therefore, the learned Tribunal has

rightly considered the income of the deceased at

Rs.2,500/- per month.

5. Learned counsel appearing on behalf of the claimants

has submitted that the Tribunal has failed to award the

amount of consortium and future loss of income in its true

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

and prospective spirit. He has submitted that the sufficient

evidence regarding actual income produced on record in

the form of examination of original claimant no.1 at

Exhibit 34, deposition of witnesses at Exhibit 35, 72 and

73, written arguments on behalf of the claimants at

Exhibit 105 and educational certificates at Exhibit 43 and

52. He has submitted that from the said evidence, it

establishes that the deceased was highly qualified and

educated person having a bright carrier and future ahead

had he not died untimely due to the vehicular accident. He

has submitted that the Tribunal ought to have considered

the income of the deceased at Rs.12,000/- per month. He

has submitted that the Tribunal has erred in applying 15

multiplier only, however, at the time of vehicle accident

deceased was aged about 25 years and was only earning

member of the family and, therefore, the multiplier of at

least 20 ought to have been applied. He has submitted

that taking into consideration of the guidance from the

Second Schedule to Section 163-A of the Motor Vehicles

Act, 1988, the multiplier of 18 years should have been

applied while determining the amount of just and proper

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

compensation. He has submitted that the Tribunal has

committed error while coming to the conclusion that

deceased was negligent in driving motorcycle and,

therefore, 20% liability by way of contributory negligence

can be fastened upon him. He has submitted that on

perusal of the FIR at Exhibit 67, charge-sheet at Exhibit 71

and panchnama at Exhibit 68, it emerges that the driver of

the rickshaw was solely responsible for the accident and

the driver of the rickshaw has falsely deposed that he

applied break to avoid accident, whereas, panchnama

clearly shows that there is no signed of break marks. He

has submitted that Rs.10,000/- awarded by the Tribunal

under the head of funeral charges, loss of estate and pain,

shock and suffering is not just and proper, but the Tribunal

has to award Rs.30,000/- under the said heads. He has

submitted that the interest awarded by the Tribunal is on

lower side and since, the claim petition came to be filed in

the year 2012, in view of the ratio laid down by this Court

in the case of Nasimbanu Wd/o. Sirajuddin Amruddin Kazi

and others Vs. Ramjibhai Bachubhai Ahir and others,

2005 (2) GLR 1476, interest ought to have been awarded

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

at the rate of 12% instead of 9% as awarded by the

Tribunal from 07.02.2002 till 20.07.2005 and, thereafter

reducing it to 6% per annum till the realization. He has

submitted that the quantum of compensation is less and

the same may be enhanced. He has submitted that the

quantum of compensation as awarded by the Tribunal is

on lower side and against the well settled principles of law

and, therefore, the same may be enhanced with interest

from the date of filing of claim petition till the deposit of

the aforesaid amount.

6. I have considered the submissions canvassed by the

learned counsel appearing for both the parties and record

and proceedings and perused the materials placed on

record. It is an admitted fact that the deceased was

educated and was serving as assistant teacher and also

taking tuition classes. This fact is supported by the

documentary evidence as well as the deposition of the

witnesses. Considering the decisions of the Hon'ble Apex

Court in the case of Sarla Verma and others Vs. Delhi

Transport Corporation and another, (2009) 6 SCC

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

1211, National Insurance Company Limited Vs.

Pranay Seti, 2017 (3) G.L.H. 536 and Magma General

Insurance Company Limited Vs. Nanu Ram alias Chuhru

Ram and others, (2018) 18 SCC 130, I am of the

considered view that the appeal filed by the Insurance

Company requires to be partly allowed to the extent that

the negligency considered by the Tribunal is to be

enhanced to the extent of 30% instead of 20%. So far as

the quantum is concerned, the contention of the Insurance

Company is hereby answered in negative and it is

enhanced accordingly. So the appeal filed by the original

claimants is also succeed in part. The compensation is

required to be redetermined as under:-

Actual Income                               Rs. 10,000/
                                            (Rs. 5,000/-)
Prospective income (40% rise)               Rs. 7,000/-
Less - Personal expenses                    Rs. 3,500/-
(Rs.7000 X 1/2)
Dependency benefit (Rs.3500 X 12)           Rs. 42,000/-
Loss of dependency (42000 X 18)             Rs.7,56,000/-
Less      Contributory       negligence     Rs.2,26,800/-
(Rs.7,56,000 X 30%)
Future Loss of income                       Rs.5,29,200/-
+ Loss of estate, funeral expenses and      Rs.1,20,000/-

consortium (as per decision reported in (2018) 18 SC C 130) Rs.6,49,200/-

Less : Compensation awarded by the Rs.3,70,000/-

C/FA/3836/2009 JUDGMENT DATED: 09/12/2021

Tribunal Additional Amount Rs.2,79,200/-

7. For reasons aforestated, I proceed to pass following

order.

(i) First Appeal No.3836 of 2009 is partly allowed to the

extent that the negligency is to be enhanced from 20% to

30%. First Appeal No.4304 of 2006 is partly allowed.

(ii) Judgment and award passed dated 23.05.2005

passed by the Motor Accident Claims Tribunal,

Ahmedabad in M.A.C.P. No.117 of 2002 is hereby modified