Gujarat High Court
National Insurance Company vs Pritiben Wd/O Girishkumar A ... on 22 December, 2021
Bench: R.M.Chhaya
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 138 of 2009
With
R/CROSS OBJECTION NO. 101 of 2010
In
FIRST APPEAL NO. 138 of 2009
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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NATIONAL INSURANCE COMPANY
Versus
PRITIBEN WD/O GIRISHKUMAR A L.R.OF GIRISHKUMAR A SANGHVI & 5
other(s)
==========================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR JINESH H KAPADIA(5601) for the Defendant(s) No. 1,2,3
MR KEYUR A VYAS(3247) for the Defendant(s) No. 6
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 5
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/12/2021
Page 1 of 10
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C/FA/138/2009 JUDGMENT DATED: 22/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common
judgement and award dated 16.7.2008 passed by Motor
Accident Claims Tribunal (Aux.), Mehsana in Claim Petition
No. 886/2001, the National Insurance Company of the Bajaj
Chetak Scooter - original respondent No.4 involved in the
accident has preferred this appeal under Section 173 of the
Motor Vehicles Act, 1988 ("the Act" for short) and the owner
of the scooter has preferred cross objections on the ground
negligence.
2. Following facts emerge from the record of this appeal:
2.1. That the accident took place on 3.5.2001. It is the case
of the original claimants that the deceased Girishkumar
Amrutlal Sanghvi and deceased Arvindbhai Naranbhai were
travelling on their Bajaj Chetak Scooter bearing registration
No.GJ-2-F-2822. It is further the case of the claimants that
when the scooter reached Palavasna Cross Road at about 9:00
a.m., a jeep bearing registration No.GJ-2-A-8615 came from
Mehsana side being driven in a rash and negligent manner.
The deceased Girishkumar sustained fatal injuries and
succumbed to the same on the road itself whereas deceased
Arvindbhai received head injuries and injuries on other parts of
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
the body and firstly taken to hospital at Mehsana and
thereafter to Ahmedabad. However, deceased Arvindbhai died
on the way. The record also indicates that the driver of the
jeep immediately ran away. An FIR was lodged with Mehsana
Taluka Police Station being C.R. No.I-103/2001. The case of
the claimants was that deceased Girishkumar Amrutlal Sanghvi
was 26 years at the time of accident and was earning
Rs.8,061/- as salary. The claimants also relied upon
documentary evidence such as FIR at Exh.32.
3. The Tribunal after appreciating the evidence on record
came to the conclusion that the driver of both the vehicles
were composite negligent and attributed 80% negligent upon
the driver of the jeep and 20% upon driver of the scooter and
while partly allowing the claim petition awarded a sum of
Rs.12,87,500/- with 7.5% interest from the date of filing of the
claim petition till its realization.
4. Being aggrieved and dissatisfied by the same, the
Insurance Company of the scooter has preferred this appeal
and cross objections are filed by the original claimants of
deceased Girishkumar Amrutlal Sanghvi.
5. Heard Dr. Rushang Mehta, learned advocate appearing
for the appellant - National Insurance Company, Ms. Karuna
Rahevar for the Oriental Insurance Company of the jeep
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
(Respondent No.6) and Mr. Jignesh Kapadia, learned advocate
for respondent Nos. 1 to 3 (original claimants). As aforesaid,
the original claimants of deceased Girishkumar Amrutlal
Sanghvi has also filed cross objections in this appeal.
6. We have perused the oral record and proceedings.
7. Dr. Rushang Mehta, learned advocate for the Appellant -
National Insurance Company contended that the Tribunal has
committed an error in coming to the conclusion that the driver
of the scooter was also negligent to the extent of 20%.
Referring to the panchnama of the scene of occurrence at
Exh.32, it was contended by Dr. Mehta that the manner in
which the accident has occurred and the damage which is
shown to the jeep as per the panchnama clearly indicates that
the driver of the jeep was solely negligent. Dr. Mehta,
learned advocate for the Appellant - Insurance Company
contended that the Tribunal has committed an error in coming
to the conclusion that the driver of the scooter was also
negligent to the extent of 20%. Dr. Mehta also contended that
the appellant - Insurance Company be exonerated. In the
aforesaid grounds, Dr. Mehta, learned advocate contends that
the appeal of the Insurance Company of the scooter be
allowed.
8. Per contra, Ms. Karuna Rahevar, learned advocate
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
appearing for the Insurance Company of the Jeep has opposed
this appeal and has submitted that even if the panchnama is
read, the deceased driver of the scooter was equally liable and
negligent for the accident. Ms. Rahevar contended that on the
contrary the Tribunal has correctly appreciated the evidence on
record and has come to the conclusion that driver of the jeep
was negligent to the extent of 80% and driver of the scooter
was negligent to the extent of 20%. Ms. Rahevar further
contended that the Tribunal has rightly assessed the income of
the deceased based upon the deposition of the witness of the
claimants who was examined before the Tribunal and no
interference or modification is required and therefore, the
appeal being meritless deserves to be dismissed.
9. Mr. Jignesh Kapadia, learned advocate for the original
claimants and also for the owner of the scooter has pressed
into service the cross objections on quantum. He relied upon
the letter at Exh.48 as well as the chart and the oral
deposition of Mr Nilesh D. Patel, Assistant Manager Stores of
the Company in which the deceased was working at Exh.41, it
was contended that salary was actually revised from January
2001 and therefore, on the date of accident, the actual salary
of the deceased was Rs.8061/-. Mr. Jignesh Kapadia, learned
advocate for the owner of the scooter has vehemently relied
upon the panchnama at Exh.32 and has submitted that the
Tribunal has committed an error in considering the negligence
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
as the manner in which the accident has taken place is
appreciated based upon the panchnama. The jeep was being
driven on wrong side as it was coming from Mehsana to
Ahmedabad whereas the scooter was going from Ahmedabad
side to Mehsana side. Mr. Kapadia, contended that the driver
of the jeep was solely negligent for the accident and the
Tribunal has committed an error in holding the driver of the
scooter, that is the deceased as negligent to the extent of 20%.
In the aforesaid ground, Mr. Kapadia, leaned advocate
contended that the cross objections be allowed.
10. No other and further submissions have been made by
learned advocates appearing for the parties.
11. As far as the act only policy is concerned, the fact
remains that the insurance company of the Bajaj Chetak
Scooter at Exh.64 is an act only policy. The said aspect is not
considered by the Tribunal having recorded the same the
Tribunal has not even referred to the same.
12. The other question which arises in this appeal is whether
the Tribunal has rightly assessed being negligent of both the
vehicles or not. In order to appreciate the said fact, it would
be appropriate to refer to the panchanma at Exh.32. The
panchnama clearly states that the jeep is damaged from the
right side of the driver and even the front bumper is damaged.
Upon re-appreciation of the evidence of the panchnama at Exh-
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
32 and considering the fact that the jeep was being driven
from Mehsana to Ahmedabad, it clearly appears that the jeep
was being driven in the wrong side. The part of the jeep
which is damaged as per the panchnama clearly shows that the
driver of the jeep left its side which was correct side and went
to other side because of which the accident had occurred. At
the same time, considering the damage to the scooter, clearly
indicates that having taken a wrong side that too with a speed
the scooter is totally damaged and the impact of the accident
was such that the deceased driver of the scooter hardly had
any opportunity to save themselves. Upon re-appreciation of
the evidence on record, we are of the opinion that the driver
of the jeep was solely negligent for the accident.
13. Having come to the aforesaid conclusion, the issue of act
only policy really does not require any further elucidation as
the Insurance Company of the jeep would be liable to satisfy
the award. However, considering the insurance policy at
Exh.64, which was act only policy even otherwise the
appellant - Insurance Company would not be liable for the
claim raised by the claimant as it was act only policy.
Resultantly, the appeal filed by the Insurance Company is
allowed. Cross objections filed by the owner of the scooter is
also allowed. Respondent No.6-Oriental Insurance Company
Ltd. as insurer of the jeep and the owner of the jeep shall be
liable to satisfy the claim.
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
14. Upon re-appreciation of the evidence on record and
considering the deposition of the officer at Exh.41 and the
documents at Exh.48, it clearly appears that from January, the
salary of the deceased was increased from Rs.7605/- to
Rs8061/- p.m. and hence even as per the oral deposition of the
witness Nileshbhai Patel at Exh.41 on the date of the accident,
the actual salary of the deceased was Rs.8061/-. The Tribunal
has thus, committed an error in considering the old salary as
income.
15. Having come to the aforesaid conclusion, we hold that
the income of the deceased per month was Rs.8061/- as salary.
As the age of the deceased was 26 years, the claimants would
be entitled to prospective income to the extent of 50% and
appropriate multiplier would be that of 17 and after deducting
1/3rd towards personal expenses, the respondents - claimants
would be entitled to compensation under the head of loss of
dependency as under:
"Rs.8061 + 4030 (50% prospective income) = Rs.12091 x 12
(pa) = Rs.1,45,092 - Rs.48,364 (1/3rd personal expenses) =
Rs.96,728 p.a. x 17 (multiplier) = Rs.16,44,376/."
16. It is pointed out at the bar that the wife of the deceased
has already remarried and, therefore she would not be entitled
to any spousal consortium. However, following the decision of
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
the Apex Court in the case of Satinder Kaur alias Satwinder
Kaur v. United India Insurance Co. Ltd. AIR 2020 SC 3076, the
appellants would be entitled to filial consortium of Rs.40,000/-
each and the claimants would be entitled to additional amount
of Rs.15,000/- towards funeral expenses.
Loss of Dependency Rs.16,44,376/-
Filial consortium Rs. 80,000/-
Funeral Expenses Rs.15,000/-
Total Rs.17,39,376/-
17. Thus, the original claimants would be entitled to total
compensation of Rs.17,39,376/-. As observed herein above, we
hold that the driver of the jeep is solely negligent, the
Insurance Company of the jeep as well as the driver of the
jeep shall be jointly and severely liable to satisfy the claim.
18. As the Tribunal has awarded Rs.12,87,500/- , the
respondents claimants would be entitled to additional
compensation of Rs.4,51,876/-. The Insurance company of the
jeep - Oriental Insurance Company Ltd. shall deposit
additional amount of compensation along with interest @6%.
The original claimants shall be liable to pay additional Court
fees on the additional amount which is awarded by this Court.
The amount deposited by the appellant - Insurance company
of the Bajaj Chetak Scooter shall be refund the amount
deposited by it being 20% of the total claim amount. The
insurance Company of the jeep that is Oriental Insurance
C/FA/138/2009 JUDGMENT DATED: 22/12/2021
Company Ltd. Shall deposit the additional amount + 20%
negligency amount with interest @ 6% p.a. and proportionate
cost with the Tribunal within a period of eight weeks from
today and on such deposit, the Tribunal shall refund the
amount deposited by the appellant - New India Insurance
Company.
19. The appeal and cross objections are allowed. The
impugned judgement and award is modified to the aforesaid
extent. Thereby shall be no order as to costs. Record and
proceedings be transmitted back to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
