New India Assurance Co. Ltd vs Hansaba Pradyumansinh Jadeja
2021 Latest Caselaw 3087 Guj

         C/FA/410/2009                                        JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.           410 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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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                  NEW INDIA ASSURANCE CO. LTD
                             Versus
           HANSABA PRADYUMANSINH JADEJA & 6 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
 for the Defendant(s) No. 5
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
RULE SERVED BY DS(65) for the Defendant(s) No. 4,6
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                            Date : 23/02/2021

                              ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 23.11.2007 passed by the Motor Accident Claims Tribunal (Aux), Gandhidham­

C/FA/410/2009 JUDGMENT

Kutch, in MACP No. 862 of 1999, the present appeal is filed by the insurance company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The brief facts leading to filing of the present appeal are as under ­

2.1 That the accident occurred on 24.04.1996 at about 05.00 hrs. The record indicates that deceased Padyumansinh Natubha Jadeja was going to his farm on his motorcycle bearing registration No. GJ­12­E­2885 along with one Dinesh Premji Valand. The record indicates that when the motorcycle reached Chirai­ Gandhidham National Highway, one truck bearing registration No. GJ­12­T­9584 came from the other side and dashed with the motorcycle. The deceased as well as the pillion rider received serious injuries and ultimately, deceased succumbed to the same. The claimants filed the claim petition under Section 166 of the Act and claimed total compensation of Rs. 3,00,000/­. The said claim petition was heard along with MACP No. 889 of 1999 filed by the injured pillion rider. It was the case of the claimant before the Tribunal that the deceased was working in a PCO run by Raj Communication. The respondent no.1 was examined at exhibit 28 and the respondents­claimants also relied upon documentary evidence such as FIR at exhibit 48, panchnama at exhibit 49, PM Note at

C/FA/410/2009 JUDGMENT

exhibit 34 and over and above the same, the owner of the PCO Shri Piyush Shankarlal Nai was examined at exhibit 30. The claimants also produced income certificate at exhibit 31 issued by Raj Communication to prove the income. Considering the evidence of the witness Shri Piyush Shankarlal Nai at exhibit 30 and the certificate at exhibit 31, the Tribunal believed that the deceased was earning Rs. 5,000/­ per month. However, the Tribunal did not believe the case of the claimants that the deceased also earned a further sum of Rs. 1,60,000/­ per year towards agricultural income. Applying the multiplier of 16, the Tribunal was pleased to award a sum of Rs. 9,95,000/­. Being aggrieved by the same, the present appeal is filed by the insurance company.

3. Heard Mr. H.G. Mazmdar, learned advocate for the appellant and Mr. Hiren Modi, learned advocate for the respondents­original claimants. Also perused the original record and proceedings.

4. Mr. Mazmudar, learned advocate for the appellant has taken this Court through the factual matrix arising out of this appeal as well as the relevant evidence. It was contended by Mr. Mazmudar that the Tribunal has erred in assessing the income of the deceased at Rs.

  5,000/­ per month.                   Mr. Mazmudar contended that
  the     Tribunal          has        wrongly          believed          the       oral





       C/FA/410/2009                                                  JUDGMENT

deposition of Shri Piyushbhai at exhibit 30 and the certificate at exhibit 31. Mr. Mazmudar, learned advocate contended that it is impossible to believe that in a small town like Bhachau in Kutch District, the deceased who was working in a PCO would get salary of Rs. 5,000/­. According to Mr. Mazmudar, the evidence led by the claimant is not believable and the income is therefore exaggerated. According to Mr. Mazmudar, the award therefore deserves to be reduced by reducing the income. Mr. Mazmudar contended that considering the date of the accident, even if highest minimum wage standard is considered, the same would not be more than Rs. 1,200/­. On the aforesaid ground, the appeal be allowed and the award passed by the learned Tribunal be modified accordingly.

5. Per contra, Mr. Hiren Modi, learned advocate for the claimants has supported the judgment and award passed by the Tribunal and has contended that the Tribunal has rightly appreciated the evidence on record. Mr. Modi contended that the certificate at exhibit 31 is issued by the owner of Raj Communication who has been examined as witness by the respondents­original claimants and thus, the respondents­original claimants have proved that the deceased was earning Rs. 5,000/­ as salary from Raj Communication.

  Mr.Modi              submitted             that        the      Tribunal              has
  committed                no     error      and       this     Court         may       not
  exercise             the        appellate           jurisdiction            and       the




     C/FA/410/2009                                                JUDGMENT




  appeal            being        meritless,              deserves          to        be
  dismissed.

6. No other or further submissions have been made by the learned advocates appearing for the respective parties.

7. Upon re­appreciating the evidence on record and on re­appreciating the deposition of Shri Piyushbhai at exhibit 30, it clearly transpires that the original claimants have proved that the deceased was working with Raj Communication. It is also proved that the certificate at exhibit 31 is issued by the very witness, which certifies the salary of the deceased per month. The contention that the piece of evidence is not believable deserves to be negatived. Even otherwise, if the judgment and award is taken as it is, the Tribunal has awarded lesser multiplier considering the fact that the deceased was 30 years old on the date of the accident. Similarly, the Tribunal has also awarded lesser amount as compensation under different conventional heads. Following the judgment of the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121 as well as in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, on the contrary, the multiplier deserves to be enhanced to 17 and the compensation under conventional heads deserves to be enhanced to

C/FA/410/2009 JUDGMENT

Rs. 70,000/­.

8. In totality of the facts, this Court is of the opinion that even if such exercise is undertaken, believing the case of the appellant that the income is little exaggerated, the entitlement to total compensation would almost remain the same in facts of the case and re­ appreciating the record as a whole, this Court is of the opinion that the Tribunal has awarded just compensation, which does not require any interference in exercise of the appellate jurisdiction. The appeal therefore fails and is hereby dismissed. No costs. Record and proceedings be transmitted to the Tribunal forthwith.

(R.M.CHHAYA, J) BIJOY B. PILLAI