Oriental Insurance Co Ltd vs Heirs Of Decd. Bijalbhai Jamabhai ...
2021 Latest Caselaw 4921 Guj

          C/FA/1612/2013                                       JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 1612 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA                                   sd/­
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1     Whether Reporters of Local Papers may be allowed to see              NO
      the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law as          NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                     ORIENTAL INSURANCE CO LTD
                                Versus
        HEIRS OF DECD. BIJALBHAI JAMABHAI SARVAIYA & 6 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Defendant(s) No. 1,2,3,4,5
MS KRISHNA U MISHRA(1083) for the Defendant(s) No. 6,7
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 31/03/2021
                        ORAL JUDGMENT

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 19.03.2013 passed by the Motor Accident Claims Tribunal (Auxi), Bhavnagar in MACP No.314 of 2009, the Insurance Company has preferred present appeal.

2.0. The following noteworthy facts emerge from the record of the appeal.

2.1. That on 18.02.2008 the deceased was traveling in a Tractor­

C/FA/1612/2013 JUDGMENT

cum Trailer bearing registration No. GJ­4­H­5930 and GJ­4­X­1653 respectively as a labourers loading soil along with other two laboureres. The record indicates that at about 5'o clock when the said vehicle reached between villages Kundhada and Bhandariya, the Wheel of the vehicle got punctured. The deceased Kalubhai got down from the vehicle to check the position of the Wheel and at that moment driver of the Tractor Trailer negligently started running said vehicle because of which, deceased sustained serious injuries and died during the treatment. An FIR was lodged with the Talaja Police Station being CR­I­ No.25 of 2008. The present claim petition under Section 163 A of the Motor Vehicles Act, 1988 was filed by the claimants. It was the claim of the respondents claimants that deceased was earning Rs.3000/­ p.a. from the labour work. The Tribunal after considering the oral deposition of one of the claimant at Exh.19 and considering the documentary evidence such as FIR at Exh.31, Panchnama of the place of incident at Exh.32, Inquest Panchnama of the deceased at Exh.33, PM Report of the deceased at Exh.34, RC Book of Tractor­ Trailer at Exh.35, Election Identity Card of Deceased at Exh.37, Election Identify Card of Applicant No.1 at Exh.38, Insurance Policy of Tractor­ Trailer at Exh.39 and Charge sheet at Exh.40. Very consciously considered the claim petition under Section 163 A of the Act but while considering the quantum calculated the amount of compensation as if it is application under Section 166 of the Act and awarded a sum of Rs.4,17,800/­ with 7.5 % interest from the date of application till its realization.

2.2. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Motor Accident Claims

C/FA/1612/2013 JUDGMENT

Tribunal, the appellant Insurance Company has preferred the present appeal.

3.0. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. Vishal Mehta, learned advocate for the original claimants . I have also perused the original record and proceedings of the case.

4.0. Mr. Nanavati, learned advocate for the appellant has mainly contended that the Tribunal has committed an error in calculating the compensation. Mr. Nanavati pointed out that claim petition filed by the original claimants was under Section 163 A of the Act and therefore, the compensation is to be calculated as per the structured formula under the said Section. Mr. Nanavati submitted that the Tribunal has committed an obvious error in calculating the compensation as if it was claim petition under Section 166 of the Act. On the aforesaid ground, Mr. Nanavati contended that the appeal deserves to be allowed and the impugned judgment and award deserves to be modified as per the structured formula or in the alternative, it is submitted by Mr. Nanavati that impugned judgment and award be quashed and set aside and proceedings be remanded back for its appropriate calculation as provided under scheduled attached to Section 163 A of the Act.

5.0. Per contra, Mr. Vishal Mehta, learned advocate for the original claimants has candidly submitted that considering the fact that the accident is of the year 2008 instead of remanding the proceedings, this Court may after considering the income of the

C/FA/1612/2013 JUDGMENT

deceased at Rs.27000/­ p.a. and considering his age may re­ calculate the compensation as per the structured formula as even according to Mr. Mehta claim petition which was preferred by the original claimants was under Section 163 A of the Act.

6.0. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective parties.

7.0. Even in starting of the impugned judgment and award, the learned Tribunal has recorded that this claim petition under second schedule of Section 163­A of the Motor Vehicles Act (Amended), 1988 to recover a compensation on structured formula basis to the tune of Rs.4,41,500/­. Even in the judgment, I find that the Tribunal was conscious enough that it was dealing with claim petition under Section 163 A and not under Section 166 of the Act. Even upon re­appreciation of the evidence on record, it is quite evident from the claim petition at Exh.1 that claim petition was filed under Section 163 A and not under Section 166 of the Act and therefore, the Tribunal ought not to have calculated quantum of compensation as if it was dealing with claim petition under Section 166 of the Act. Following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Gurumallamma and Another reported in (2009) 16 SCC 43, the original claimants would be entitled to compensation as per the structured formula as per the scheduled. Even Mr. Mehta, learned advocate for the original claimant could not dispute the aforesaid fact. On the said peculiar facts and circumstances of the case

C/FA/1612/2013 JUDGMENT

arising in this appeal, in opinion of this Court, instead of remanding back the proceedings for its re­calculate as per the second schedule under Section 163 A of the Act, this Court thinks it fit to embargo upon such exercise even at the appellate stage. As far as income is concerned, the same is not disputed even by the appellant and considering the age of the deceased at 27 years and income at Rs.27000/­ p.a, as per the structured formula provided under second schedule, the original claimants would be entitled to compensation as under:

Particulars                                     Amount(Rs.)
Yearly Income                                   27,000/­

Loss of dependency as per Schedule ­II of Motor 4,59,000/­ Vehicles Act, 1988 Deduction for personal Expenses 1,53,000/­ Total Loss of Dependency 3,06,000/­ Funeral Expenses 2000/­ Loss of Consortium 5000/­ Loss of Estate 2500/­ Total amount of compensation 3,15,500/­ Amount of compensation awarded by the Tribnal 4,17,800/­ Additional Amount of compensation (to be 1,02,300/­ refunded to the Insurance Company)

8.0. In light of the aforesaid, therefore, the respondents­ claimants would be entitled to total compensation of Rs.3,15,500/­ along with interest at the rate of 7.5% p.a. from the date of filing claim petition till its realization. Appeal is therefore, partly allowed and the impugned judgment and award stands modified to the aforesaid extent. The additional amount as per this judgment be refunded to the appellant Insurance Company forthwith and rest of

C/FA/1612/2013 JUDGMENT

the amount be disbursed as per the original award. However, there shall be no order as to costs. Record and proceedings of the case be transmitted to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD