Gujarat High Court
New India Assurance Co Ltd vs Manjulaben Wd/O Vajesingh ... on 31 March, 2021
Bench: R.M.Chhaya
C/FA/1257/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1257 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2013
In R/FIRST APPEAL NO. 1257 of 2013
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
MANJULABEN WD/O VAJESINGH TERSINGH DAMOR & 7 other(s)
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR VISHAL MEHTA for the Defendant(s) No. 1,2,3,4,5,6,7
RULE SERVED(64) for the Defendant(s) No. 8
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 31/03/2021
ORAL JUDGMENT
1. Feeling aggrieved by and dissatisfied by the
judgment and award dated 18.10.2012 passed by
the Motor Accident Claims Tribunal (Aux.),
C/FA/1257/2013 JUDGMENT
Godhra in MACP No.864/2010, the appellant-
insurance Company has preferred this appeal
under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as "the Act").
2. Following facts emerge from the record of the
appeal:
That, the accident occurred on 28.7.2010 at
about 06:00 a.m. Record indicates that the
deceased Vajesinh was going on his cycle from
Village Panchela to Piplod for attending his
work. Record indicates that at that juncture,
Honda Activa bearing registration no. GJ17
AC8585 being driven by the original
respondent no.1 came from Piplod side and
dashed with the cycle from behind. The
deceased received serious injuries and was
admitted to the hospital and ultimately,
succumbed to the same. An FIR bearing CR no.
I117/10 was lodged with the jurisdictional
Police Station and the present claim petition
was filed under Section 166 of the Act and
claimed compensation of Rs.10,00,000/.
3. It was the case of the original claimants that
the deceased was 28 years old on the date of
the accident and was earning Rs.6,000/ per
month from paper agency as well as from
agriculture. The wife of the deceased Vajesinh
C/FA/1257/2013 JUDGMENT
was examined at Exh.26 and the original
claimants also relied upon the documentary
evidences, such as, FIR Exh.17, inquest
Panchnama Exh.18, Panchnama of the place of
incident Exh.19, driving licence of original
respondent no.1 Exh.20, R.C. Book of the
vehicle involved in the accident Exh.21,
insurance policy Exh.22, postmortem report
Exh.23, medical bills Exh.24, Pedhinama of the
heirs of the deceased Exh.25, extracts of
village form no.7/12 and village form no.8 of
the land of the father of the deceased Exh.26
and bills of Sandesh newspaper from January,
2010 to July, 2010 Exh.27. The appellant -
insurance Company did not adduce any evidence.
The Tribunal, after examining the manner in
which the accident has occurred, came to the
conclusion that the driver of Activa was
solely negligent. As far as the income is
concerned, the Tribunal has, after
appreciation of the evidence on record,
believed the case of the original claimants
that the deceased was running a paper agency -
Sandesh newspaper and was earning as an agent.
Relying upon the bills for the months of
January, 2010 to July, 2010 and upon
appreciation of such evidence on record, the
Tribunal determined the income of the deceased
from paper agency at Rs.3,000/ and Rs.500/
from agriculture and thus, determined the
C/FA/1257/2013 JUDGMENT
total income of the deceased at Rs.3,500/ per
month. The Tribunal was also pleased to give
prospective income to the tune of 50% and
after deducting onefifth towards personal
expenses, applied multiplier of 17 and awarded
a sum of Rs.8,56,800/ as compensation towards
the loss of dependency, Rs.10,000/ towards
loss of estate, Rs.10,000/ towards loss of
consortium, Rs.5,000/ towards funeral
expenses and Rs.75,310/ towards medical
expenses and thus, awarded a total
compensation of Rs.9,57,200/ (rounded figure)
along with interest at the rate of 9% per
annum from the date of filing of the claim
petition till its realization. Being aggrieved
by the same, the appellant - insurance Company
has preferred this appeal.
4. Heard Mr. Sunil Parikh, learned advocate for
the appellant - insurance Company and Mr.
Vishal Mehta, learned advocate for the
original claimants. Though served, no one
appears for the other respondents. I have also
perused the original record and proceedings.
5. Mr. Sunil Parikh, learned advocate for the
appellant has contended that the original
claimants have adduced no evidence to even
remotely prove the income. Mr. Parikh further
submitted that the Tribunal has committed an
C/FA/1257/2013 JUDGMENT
error in determining the income of the
deceased from paper agency at Rs.3,000/ and
Rs.500/ as income from agriculture. Mr.
Parikh further contended that such agriculture
land is joint property and therefore, no
income can be considered to be the income of
the deceased. Mr. Parikh therefore submitted
that even in absence of any evidence
whatsoever, the Tribunal has fixed an amount
of Rs.3,500/ per month as income. Mr. Parikh
further submitted that the Tribunal has also
erred in giving prospective income to the tune
of 50%. According to Mr. Parikh, considering
the date of accident, the original claimants
would be entitled to prospective income only
to the tune of 30%. Mr. Parikh further
submitted that thus, without there being any
cogent evidence regarding prospects of the
deceased, higher amount of compensation is
awarded by the Tribunal. On the aforesaid
grounds, it was contended by Mr. Parikh that
the impugned judgment and award deserves to be
modified by allowing the appeal which is
restricted only to Rs.1,58,010/ on quantum.
6. Per contra, Mr. Vishal Mehta, learned advocate
for the original claimants has supported the
impugned judgment and award. Mr. Mehta
contended that though the original claimants
have not filed any appeal, it is incorrect to
C/FA/1257/2013 JUDGMENT
say that no evidence was adduced. According to
Mr. Mehta, learned advocate for the original
claimants, the original claimants did prove
the income from the newspaper agency at
Exh.27. Mr. Mehta further contended that the
Tribunal has rightly considered the income
from agriculture at Rs.500/ as even though it
was a joint family property, the fact remains
that the deceased did earn at least Rs.500/
per month as agriculture income. Referring to
the judgment of the Hon'ble Apex Court in the
case of National Insurance Company Limited Vs.
Pranay Sethi & Ors. reported in (2017) 16 SCC
680, it was contended that the original
claimants would be entitled to 40% prospective
income and onefifth will have to be deducted
as there are 7 dependents. It was further
contended that as per the judgment of the
Hon'ble Supreme Court in the case of Pranay
Sethi (supra), the original claimants would be
entitled to Rs.70,000/ towards compensation
under different conventional heads instead of
Rs.25,000/ as awarded by the Tribunal. Mr.
Mehta therefore submitted that on the
contrary, the original claimants would be
entitled to more compensation than what is
awarded by the Tribunal. Mr. Mehta therefore
contended that the appeal, being meritless,
deserves to be dismissed.
C/FA/1257/2013 JUDGMENT
7. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
8. As far as the income is concerned, the
original claimants have relied upon the bills
from January, 2010 to July, 2010 at Exh.27
issued by Sandesh newspaper. Upon
reappreciation of such piece of evidence on
record, it cannot be said that the Tribunal
has committed any error in determining the
income at Rs.3,000/ from the newspaper
agency. It is no doubt true that the land as
per the evidence at Exh.26 belonged to the
father of the deceased, but it cannot be
gainsaid that the no income was derived by
him. Even considering the date of accident
being 28.7.2010, a person aged 28 years,
engaged in service of newspaper agency and
having share in the agriculture income, the
Tribunal has committed no error in determining
the income at Rs.3,500/ per month. Even if
the guesswork is to be made, in opinion of
this Court, the Tribunal has committed no
error in determining the income of the
deceased. Upon reappreciation of the evidence
in form of bills at Exh.27 in particular, it
cannot be said that the original claimants
adduced no evidence to prove the income.
C/FA/1257/2013 JUDGMENT
9. As far as the prospective income is concerned,
Mr. Parikh, learned advocate for the
appellant-insurance Company is correct while
asserting that the Tribunal has committed an
error in granting 50% prospective income.
However, following the ratio laid down by the
Hon'ble Apex Court in the case of Pranay Sethi
(supra), the original claimants would be
entitled to 40% prospective income. Even if
that exercise is undertaken, there would not
be any difference in compensation awarded by
the Tribunal under the head of loss of
dependency benefit, which would require
interference by this Court in its appellate
jurisdiction. Even considering the ratio laid
down by the Hon'ble Apex Court in the case of
Pranay Sethi (supra), the original claimants
would be entitled to Rs.70,000/ towards
compensation under different conventional
heads including funeral expenses including
Rs.25,000/ as awarded by the Tribunal.
10. Considering the judgment of the Hon'ble Apex
Court in the case of Magma General Insurance
Company Limited Vs. Nanu Ram alias Chuhru Ram
& Ors., reported in (2018) 18 SCC 130, as the
parents are the claimants, they would also be
entitled to "filial consortium". Having
C/FA/1257/2013 JUDGMENT
considered this aspect, this Court feels that
what is awarded is just compensation.
11. In totality of facts therefore and having
reappreciated the evidence on record, in
opinion of this Court, the Tribunal has
awarded just compensation which is soul of
claim petition. In peculiar facts and
circumstances of this appeal therefore, no
interference is called for. The appeal
deserves to be dismissed and is hereby
dismissed. However, there shall be no order as
to costs. Registry is directed to send the
original record and proceedings back to the
Tribunal forthwith.
12. As the appeal is disposed of, Civil
Application does not survive and is disposed
of accordingly.
(R.M.CHHAYA, J)
MRP
