Heirs Of Decd. Govindbhai ... vs Nirmalbhai Nankubhai Basiya
2021 Latest Caselaw 1047 Guj

          C/FA/124/2012                                          JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 124 of 2012


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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       HEIRS OF DECD. GOVINDBHAI DANABHAI AAJRA & 2 other(s)
                             Versus
              NIRMALBHAI NANKUBHAI BASIYA & 1 other(s)
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Appearance:
MR GM AMIN(124) for the Appellant(s) No. 1,2,3
MR ANKIT SHAH(6371) for MR BRIJESH RAMANUJ for the Defendant(s)
No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                 Date : 22/01/2021

                                ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the judgment and order dated 27.4.2011 passed by the Motor Accident Claims Tribunal (Main),

C/FA/124/2012 JUDGMENT

Rajkot in MACP no.1154 of 2009, the appellants­original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following noteworthy facts emerge from the record of the appeal:­

That, the accident took place on 24.5.2009 at about 6.10 a.m. near Bhatta Village on Dehradun­Masuri road within the local limits of Masuri, District Dehradun, State of Uttarakhand. A luxury bus bearing registration no. GJ­3 Y­216 was being driven by the deceased - Govindbhai Danabhai Aajra as a driver and the luxury buss fell down in the valley because of which the deceased sustained serious injuries and succumbed to the same. An FIR was lodged in Uttarakhand State and the original claimants preferred a claim petition under Section 163A of the Act and claimed compensation of Rs.4,36,500/­. The appellant no.1 - Danabhai Virabhai Aajra was examined at Exh.24 and the appellants ­ original claimants also relied upon the documentary evidence, such as driving licence of the deceased Exh.27, FIR Exh.28, Panchnama Exh.29, inquest Panchnama drawn on the dead body of the deceased Exh.30, postmortem report Exh.31,

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certificate issued by R.T.O., Rajkot Exh.32, insurance policy Exh.33 and ration card of the appellants Exh.34. The Tribunal, after considering the evidence on record, considered that it is an application under Section 163A of the Act and also considered the oral deposition of the appellant no.1 and other documentary evidence and came to the conclusion that the age of the deceased was 29 years and 21 days on the date of the accident. As averred in the claim petition, the deceased was a driver by profession and was earning Rs.3,000/­ per month on the date of the accident. However, in absence of any evidence, though the Tribunal believed that he was driver of the luxury bus, determined the income of the deceased at Rs.2,700/­ per month and after deducting one­third towards personal expenses, applied multiplier of 14 and awarded the sum of Rs.3,02,400/­ as compensation under dependency loss, Rs.2,500/­ towards loss of estate and Rs.2,000/­ towards funeral expenses. Being aggrieved by the said award, the present appeal is filed by the appellants- original claimants.

3. Heard Mr. Gopinath Amin, learned advocate for the appellant and Mr. Ankit Shah, learned advocate for Mr. Brijesh Ramanuj, learned advocate for respondent no.2. Though served,

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no one appears for the respondent no.1.

4. Mr. Gopinath Amin, learned advocate for the appellants has contended that even though the Tribunal was conscious of the fact that the original claim petition was filed under Section 163A of the Act, instead of determining the compensation as per the structured formula, the Tribunal assessed the income and applied wrong multiplier and has decided the application as if it is a claim petition under Section 166 of the Act. Mr. Amin further contended that the deceased was working as a driver of a luxury bus and even as per the FIR, the accident has occurred while he was driving the luxury bus in Uttarakhand State. Mr. Amin contended that thus, the Tribunal has committed an error in assessing the income of the deceased and only on surmises, the same has been determined at Rs.2,700/­ per month even though as per the oral evidence, the income of the deceased was determined at Rs.3,000/­ per month. Mr. Amin contended that applying the structured formula as per Second Schedule, the appellants would be entitled to enhance the amount of compensation which would be just compensation. Mr. Amin therefore contended that the impugned judgment and award deserves to be modified and the appeal deserves to be allowed.

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5. Per contra, Mr. Ankit Shah, learned advocate for the respondent no.2 has opposed the appeal. Mr. Shah that there is no evidence on record to show that the deceased was working as a driver of the luxury bus. Mr. Shah contended that the claimants have not produced any further evidence and have not examined the owner of the bus to prove that the deceased was driver of the said luxury bus and therefore, in absence of any evidence, the income assessed by the Tribunal is proper. Mr. Shah also contended that the Tribunal has awarded just compensation and is as per the structured formula and it was contended that the appeal being meritless deserves to be dismissed.

6. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. I have considered the submissions made and have also perused the original record and proceedings. On perusal of the record and proceedings, it is an admitted position that the claim petition was filed under Section 163A of the Act and not under Section 166 of the Act and therefore, the compensation is

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required to be calculated as per the structured formula provided in Second Schedule of the Act. It is evident from the judgment that the Tribunal has observed that it is an application under Section 163A of the Act. However, while determining the compensation instead of strictly adhering to the Second Schedule, the Tribunal has determined the compensation in a different way. As far as the income is concerned, it is found from the claim petition Exh.1 that the appellants have claimed that the deceased was earning Rs.3,000/­ per month and was working as a driver. The appellants have also relied upon the FIR lodged with jurisdictional Police Station in Uttarakhand State at Exh.28 and has also brought on record the postmortem report of the deceased. Considering the date of accident and the oral deposition of the appellant no.1 at Exh.24, it clearly transpires that the appellant no.1 has denied the suggestion made by the insurance Company in his cross­examination that the deceased was earning Rs.1,500/­. Upon reappreciation of the evidence on record and even considering the fact that as a driver of the luxury bus, the deceased would be getting Rs.100/­ per day, the claim raised by the appellants that the income of the deceased was Rs.3,000/­ per month is more than reasonable and therefore,

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the income of the deceased should have been assessed at Rs.3,000/­ per month. It is found that the Tribunal was conscious of the fact that the claim petition is under Section 163A of the Act has determined the compensation without adhering to the structured formula as provided in the Second Schedule as provided under Section 163A of the Act.

8. It would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of the National Insurance Company Ltd. Vs. Gurumallamma & Anr., (2009) 16 SCC 43, wherein the Hon'ble Supreme Court has observed thus:­

"5. Section 163A was inserted by Act No.54 of 1994 as a special measure to ameliorate the difficulties of the family members of a deceased who died in use of a motor vehicle. It contains a non­obstante clause. It makes the owner of a motor vehicle or the authorized insurer liable to pay in the case of death, the amount of compensation as indicated in the Second Schedule to his legal heirs.

6. The Second Schedule provides for the amount of compensation for third party Fatal Accident/Injury Cases Claims. It provides for the age of the victim and also provides for the multiplier for arriving at the amount of compensation which became payable to the heirs and legal representatives of the deceased

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depending upon his annual income.

7. The Second Schedule furthermore provides that in a case of fatal accident, the amount of claim shall be reduced by 1/3rd in consideration of the expenses which the victim would have incurred upon himself, had he been alive. It provides for the amount of minimum compensation of Rs.50,000/­. It furthermore provides for payment of general damages as specified in Note 3 thereof.

8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non­fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3,300/­ per month, the amount of compensation payable would be somewhat between 6,84,000/­ to Rs.7,60,000/­.

9. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required

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to apply the multiplier except in a case of injuries and disabilities."

9. In the facts of this case therefore, the appellants ­ original claimants would be entitled to compensation as per the structured formula provided in the Second Schedule. Having come to the conclusion that the income of the deceased was Rs.3,000/­ per month i.e. Rs.36,000/­ per annum, applying the structured formula and considering the age of the deceased at 29 years, the appellants­original claimants would be entitled to compensation of Rs.6,12,000/­. One­third of the said amount is required to be deducted as expenses which the victim would have incurred for his own maintenance. Hence, the appellants ­ original claimants would be entitled to compensation as under:­

Rs.6,12,000/­ Amount of compensation ­ Rs.2,04,000/­ one­third of Rs.6,12,000/­ = Rs.4,08,000/­ Amount of compensation

10. As the appellants are father, mother and the sister by way of general damages as provided in the Second Schedule, the appellants would be entitled to Rs.2,000/­ as funeral expenses and loss of estate at Rs.2,500/­ and thus, the appellants ­ original claimants would be

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entitled to total compensation of Rs.4,12,500/­. The Tribunal has awarded Rs.3,06,900/­ and hence, the appellants ­ original claimants would be entitled to additional compensation of Rs.1,05,600/­ with 9% interest per annum from the date of the filing of the claim petition till its realization. The impugned award stands modified only to the aforesaid extent. The insurance Company shall deposit the additional/enhanced amount along with the interest as provided in this judgment within a period of three months from the date of receipt of this judgment.

11. The appeal is partly allowed. However, there shall be no order as to costs. Registry is directed send the original record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA, J) MRP