Gujarat High Court

The National Insurance Insurance ... vs Amadbhai Sidikbhai Khedara on 5 February, 2021

Bench: Vaibhavi D. Nanavati

          C/FA/131/2021                                  JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 131 of 2021
                                   With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                     In R/FIRST APPEAL NO. 131 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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

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 ?

==========================================================
         THE NATIONAL INSURANCE INSURANCE COMPANY LTD
                             Versus
              AMADBHAI SIDIKBHAI KHEDARA & 5 other(s)
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5
==========================================================

 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 05/02/2021

                           ORAL JUDGMENT

1. This First Appeal is filed by the appellant

- Insurance Company under Section 173 of the

Motor Vehicle Act challenging the judgment

C/FA/131/2021 JUDGMENT

and award dated 6.8.2019 passed by the

learned Motor Accident Claim Tribunal (Aux.),

Additional District Judge, Rajkot at Jetpur

in Motor Accident Claim Petition No.162 of

2016.

2. Rule. Mr. Nishit A. Bhalodi, learned

advocate for the appellant waives service of

rule on behalf of the respondents.

3. It is the case of the respondents - original

claimants that on 28.06.2016, deceased

Aminbhai was going by Driving his --

Motorcycle No. GJ03FA5322 at slowly,

carefully, moderate speed and on the correct

side of the road by following traffic rules.

At about 08.45 am in the morning, when he

reached near Pipaliya Village, on the Gondal

Rajkot Road. The driver of the Bus No. GJ

11TT5562 in rash and negligent manner with

an uncontrollable speed came on extreme wrong

side and dashed with the Motorcycle from the

front side, resulting into the deceased

C/FA/131/2021 JUDGMENT

sustained serious injuries and succumbed to

the injuries on the spot. Therefore, the

original claimants prayed compensation for

unnatural death and untimely death against

the present appellant by way of filing

petition before the learned Motor Accident

Claim Tribunal (Aux.), Additional District

Judge, Rajkot at Jetpur in Motor Accident

Claim Petition No.162 of 2016 and prayed for

Rs.5,00,000/ and held the present appellant

and original opponent No.1 jointly and

severally liable to pay the amount of

compensation.

4. Heard Mr.Maulik J. Shelat, learned advocate

for the appellant - Insurance Company and

Mr.Nishit A. Bhalodi, learned advocate for

the respondents No.1 to 5.

5. Mr.Maulik J. Shelat, learned advocate for

the appellant - Insurance Company has

submitted that the judgment and award passed

by the Tribunal is improper, unjust and

C/FA/131/2021 JUDGMENT

against the provisions of law. Mr. Shelat

has submitted that the learned Tribunal has

erred in considering income of deceased @

Rs.10,000/ p.m. in absence of any evidence

on record to substantiate actual income of

the deceased.

6. It is submitted by the learned advocate for

the appellant that the learned Tribunal has

erred in considering 50% towards prospective

income. It is submitted that as per ratio

laid down by the Apex Court in the case of

National Insurance Company Ltd., vs. Pranay

Sethi and Ors., reported in (2017) 16 SCC 680

only 40% rise of income could have been

considered by the learned Tribunal as the

deceased was not in permanent job.

Deduction of amount spent by the deceased on

himself Rs.3500/ (1/4)

Future loss per annum :

  Rs.10500 x 12 = 1,26,000/

  Multiplier of 15





    C/FA/131/2021                                               JUDGMENT

Future loss of Rs.18,90,000/

Conventional amount of Rs.70,000/

Total Rs.19,60,000/

Contributory negligence 10% = Rs.1,96,000/

Total compensation of Rs.17,64,000/

Lastly, he has submitted to consider the

multiplier of 15 as per the decision in the

case of Sarla Verma (Smt.) and Ors., vs.

Delhi Transport Corporation and Anr.,

reported in (2009) 6 SCC 121 when sufficient

evidence were produced on record. He,

therefore, submitted that the award requires

to be modified as prayed for and total

compensation be considered from

Rs.18,85,500/ (awarded by the Tribunal) to

Rs.17,64,000/ reducing Rs.1,21,500/.

7. Mr.Nishit A. Bhalodi, learned advocate for

the respondents No.1 to 5 - original

claimants has submitted that the judgment and

award passed by the learned Motor Accident

Claim Tribunal (Aux.), Additional District

C/FA/131/2021 JUDGMENT

Judge, Rajkot at Jetpur is just and proper

and do not require any interference. He

submitted that the Tribunal has correctly

taken the income as also applied the correct

multiplier and the same requires no

interference.

8. I have heard learned advocates for the

respective parties at length. I have perused

the averments made in the memo of appeal. The

original claimants produced sufficient

evidence before the Tribunal regarding income

and age of the deceased, which is just and

proper. The choice of the multiplier is

determined by the age of the claimant. The

multiplier method is logically sound and

legally well established. Hence this Court is

inclined to accept the multiplier of 15 as

per the decision in the case of Sarla Verma

(Smt.) and Ors., vs. Delhi Transport

Corporation and Anr., reported in (2009) 6

SCC 121. Keeping that in mind, this Court is

C/FA/131/2021 JUDGMENT

of the view that multiplier of 15 is just and

proper.

9. Considering the facts of the case judgment

and award dated 6.8.2019 passed by the

learned Motor Accident Claim Tribunal (Aux.),

Additional District Judge, Rajkot at Jetpur

in Motor Accident Claim Petition No.162 of

2016 is modified to the extent that the

prospective income be 40% of the income and

actual income of Rs.10,000/ p.m. is

accepted. There is no error committed by the

learned Tribunal in arriving at Rs.10,000/

p.m. as actual income. Table is produced

hereinbelow for sake of convenience. Hence

the award comes to ;

Compensation As per Award Calculation under in First challenge Appeal (A) Future Loss

(i) Actual Income 10000 10000

(ii) Prospective Income 15000 (50%) 14000 (40%)

(iii) Deduction of amount 3750(1/4) 3500(1/4) spent by the decd. on himself

(iv) Future Loss Per Annum 11250 x 12 = 10500 x 12 = 135000 126000

C/FA/131/2021 JUDGMENT

(A) Future Loss 20,25,000 18,90,000 (B) Conventional Amount 70,000 70,000 Total 20,95000 19,60,000 Contributory 2,09,500 1,96,000 Negligence (10%) Total Compensation 18,85,500 17,64,000

Total amount of the award comes to

Rs.17,64,000/. The learned Tribunal has

passed the award of Rs.18,85,500/. The

present respondents are therefore entitled to

Rs.17,64,000/ as amount of compensation

along with 8% from the date of application

filed before the Tribunal. The appellant is

directed to deposit the amount of

compensation alongwith interest within a

period of six weeks from the date of receipt

of copy of this judgment.