Gujarat High Court
National Insurance Company ... vs Purbaram Sardaram Chaudhary on 13 December, 2021
Bench: R.M.Chhaya
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2953 of 2010
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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NATIONAL INSURANCE COMPANY LIMITED
Versus
PURBARAM SARDARAM CHAUDHARY & 2 other(s)
==============================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR AMIT C NANAVATI(1384) for the Defendant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 3.1,3.2,3.3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 25.3.2010 passed by the Motor
Accident Claims Tribunal (Auxi), Court No.15, Ahmedabad
in MACP No.171 of 2002, the present appellant- Insurance
Company has preferred the present appeal under Section
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
173 of the Motor Vehicles Act, 1988 (for short "Act").
2.0. Following facts emerge from the record of this appeal:
2.1. That the accident occurred on 14.08.2001 at about 11
hours when the deceased Ketnaben @ Chetnaben was going
on her Luna No.GJ-4-K-5883 from her house to
Vadnagarpura Primary School and was driving her vehicle
with a moderate speed on the correct side of the road. When
she was passing just near Sindbad Hotel on Kalol Mehsana
Highway Road, at that time, one Truck bearing No.RJ-07-G-
3717 driven by opponent no.1 came from behind with a full
speed, in a rash and negligent manner, dashed with the
vehicles of the deceased. In the said impact, the deceased
was thrown away on the road and had sustained serious
injuries and ultimately succumbed to the injuries. An FIR
was lodged with the jurisdictional police station. The original
claimants filed present claim petition under Section 166 of the
Act and claimed compensation of Rs.30,00,000/-. The original
claimant relied upon the following documentary evidence:
Particulars Exh. No.
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
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. 19,41,340/- with 7.5% interest from the
date of application till its realization with proportionate costs.
Being aggrieved and dissatisfied with the same, the present
appeal is filed by the Insurance Company.
3.0. Heard Mr. Vibhuti Nanavati, learned advocate for the
appellant, Mr. Hiren Modi, learned advocate for the original
claimants and Mr. B.K. Oza, learned advocate for Amit
Nanavati, learned advocate for the respondent no.1.
4.0. Mr. Nanavati, learned counsel for the appellant
contended that the Tribunal has committed an error in
considering and determining the prospective income of the
deceased. Mr. Nanavati contended that the deceased was
working as a teacher in a school and was 40 years old on the
date of accident. Mr. Nanavati referring to the observations
made in para 14 & 15 of the impugned judgment and award
contended that the Tribunal has committed an error in
calculating the prospective income. Referring to the judgment
of the Hon'ble Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi & ors reported
in (2017) 16 SCC 680, Mr. Nanavati contended that the
Tribunal has wrongly calculated the net income of the
deceased as prospective income is calculated and determined
by the Tribunal on a higher side. Thus, therefore, contended
that the appeal be allowed as prayed for and impugned
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
judgment and award be modified.
5.0. Per contra, Mr. Hiren Modi, learned advocate for the
original claimants has supported the impugned judgment and
award. Mr. Modi contended that the accident is of the year
2001 and the calculation as regard personal income of the
deceased who was teacher in a school is rightly considered
and the projected salary at the time of retirement is made the
basis of the prospective income. Mr. Modi contended that even
if the judgment of the Hon'ble Supreme Court in the case of
Pranay Sethi (supra) is dealt with by this Court, there would
hardly be any difference as the Tribunal has awarded just and
adequate compensation. According to Mr. Modi, the appeal
being meritless, deserves to be dismissed.
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective parties.
7.0. We have perused the original Record and Proceedings
and have also considered the observations made by the
Tribunal. The Hon'ble Supreme Court in the case of Pranay
Sethi (supra) has observed thus:
59.3. While determining the income, an addition of 50%
of actual salary to the income of the deceased towards
future prospects, where the deceased had a permanent
job and was below the age of 40 years, should be made.
The addition should be 30%, if the age of the deceased
was between 40 to 50 years. In case the deceased was
between the age of 50 to 60 years, the addition should
be 15%. Actual salary should be read as actual salary
less tax.
59.4.In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
below the age of 40 years. An addition of 25% where the
deceased was between the age of 40 to 50 years and
10% where the deceased was between the age of 50 to
60 years should be regarded as the necessary method of
computation. The established income means the income
minus the tax component.
7.1. The record clearly shows that the deceased was working
as a teacher in a school. Considering the deposition of one
Bharatbhai Natubhai Sathavara at Exh.49 and document at
Exh.50 clearly established the fact that deceased was working
as assistant teacher in Vadnagarpura Primary School, Tal:
Kadi, Dist. Mehsana and her salary on the date of accident
was Rs.8174/-. Following the ratio laid down by the Hon'ble
Supreme Court in the case of Pranay Sethi (supra) and the
age of the deceased at the time of death was below 40 years,
she would be entitled to 50% prospective income. The
claimants would be entitled 15 multiplier and hence original
claimants would be entitled to compensation under the
head of future loss of income as under:
Rs. 8174/- per month (income) + Rs.4087/- (50% prospective
income) = 12,261/- - 4087/- (1/3 towards personal income =
Rs.8174/- x 12 (pa)= 98,088/- X 15 (Multiplier as the age of
the deceased was below 40 years) = 14,71,320/-.
8.0. Following the judgment of the Hon'ble Supreme Court in
the case of New India Assurance Company Limited vs.
Somwati and Ors reported in (2020) 9 SCC 644 as well as in
the case of United India Insurance Company Limited vs.
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC
3076, son and daughter were minor on the date of accident
and hence the claimants would be entitled to parental
consortium to the tune of 40,000/- each and respondent no.1
would be entitled to spousal consortium to tune of Rs.40,000.
Over and above the same, the respondents - original
claimants would be entitled to Rs.15,000/- loss of estate and
Rs.15,000/- towards funeral expenses.
9.0. Having come to the aforesaid conclusion, therefore,
the respondents - original claimants would be entitled to
total compensation as under:
Particulars Amount (Rs.)
Future loss of income 14,71,320
Consortium & Parental consortium 1,20,000/-
Loss of estate 15,000/-
Conventional and Funeral Expenses 15,000/-
Total Compensation 16,21,320
10. Thus, the claimants would be entitled to compensation of
Rs.16,21,340/- with 7.5% interest from the date of application
till its realization. As the Tribunal has awarded an amount of
Rs.19,41,340/-, the appellant Insurance Company shall
therefore, be entitled to refund of Rs.3,20,020/- with
proportionate interest and costs thereon. The Tribunal shall
refund the said amount forthwith to the appellant Insurance
Company.
11. In view of the aforesaid, the impugned judgment and
award passed by the Tribunal is modified to the aforesaid
C/FA/2953/2010 JUDGMENT DATED: 13/12/2021
extent. Thus, appeal is partly allowed. 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
