Gujarat High Court

The New India Assurance Co.Ltd vs Vinaben Sureshkumar Agrawal Wd/O ... on 16 November, 2021

Bench: Hemant M. Prachchhak

    C/FA/1954/2020                              JUDGMENT DATED: 16/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1954 of 2020
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                     In R/FIRST APPEAL NO. 1954 of 2020
                                   With
                      R/FIRST APPEAL NO. 1631 of 2020
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                     In R/FIRST APPEAL NO. 1631 of 2020
                                   With
                      R/FIRST APPEAL NO. 1632 of 2020
                                   With
                      R/FIRST APPEAL NO. 1952 of 2020
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                     In R/FIRST APPEAL NO. 1952 of 2020
                                   With
                      R/FIRST APPEAL NO. 2258 of 2020
                                   With
                      R/FIRST APPEAL NO. 2261 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

==========================================================
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 NEW INDIA ASSURANCE CO.LTD.
                              Versus
 VINABEN SURESHKUMAR AGRAWAL WD/O LATE SURESHKUMAR AGRAWAL
==========================================================



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      C/FA/1954/2020                                   JUDGMENT DATED: 16/11/2021



Appearance:
MR TANMAY B KARIA(6833) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 8
MS ARCHANA R ACHARYA(2475) for the Defendant(s) No. 1,2,3,5
NOTICE SERVED BY DS(5) for the Defendant(s) No. 4,6,7
==========================================================

  CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
        KUMAR
        and
        HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                         Date : 16/11/2021
                     COMMON ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. These six appeals are filed challenging the

judgment and award passed in M.A.C.P. Nos.101 of 2005

and 754 of 2004 whereunder the claim petitions filed

by the dependents of the deceased Suryothis Suresh

Atmaram Agrawal and Pavankunar Jagannathji Agrawal in

M.A.C.P. No.101 of 2005 and M.A.C.P. No.754 of 2004

respectively has been allowed in part.

2. The insurers of both the vehicles as well

as the claimants have filed these appeals. For the

purpose of convenience and immediate reference, we

have tabulated hereinbelow the details of the cases

filed before Tribunal as well as before this Court in

the following tabular column :

MACP FA by FA by NIA FA by UIIC Claimed Awarded by Claimant for for Qualis Amount Tribunal trailer Jeep 101/2005 2258/2020 1954/2020 1631/2020 2,25,00,000/- 33,46,000/-

754/2020 2261/2020 1952/2020 1632/2020 10,00,000/- 4,74,900/-

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

3. Since the accident is of the year 2004 and

the records and proceedings of Tribunal having been

secured, by consent of learned advocates appearing

for the parties and having regard to the fact that

accident is of the year 2004, these appeals are taken

up for final hearing though they are at the stage of

admission.

4. We have heard respective learned advocates

appearing for the parties, namely, Shri Tanmay B.

Karia, Shri Vibhuti Nanavati, Ms.Archana Acharya and

Shri Hemal Shah, appearing for insurance companies

and respective claimants and we have perused the

records.

5. The brief facts of the case are as under.

6. On 14.08.2004, the deceased persons namely

Sureshbhai Atmaram Agrawal and Pavankumar Jagannathji

Agrawal were returning back from Jodhpur (Rajasthan)

to Gandhidham in a Qualis jeep bearing Registration

No.GJ-12-P-4981, driven by the driver Gopalsingh

Mahetabsingh Rathore. When the vehicle reached nearby

Chirtrod-Lakadiya road on National Highway, at around

5.00 a.m. in the early morning of 15.08.2004, driver

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

of the Qualis car rammed from the hind to the trailer

bearing Registration No.HR-38-H-3271 which was

proceeding in front and the driver of the said

trailer had applied sudden brake. As a result of the

injuries sustained in the said accident, the

occupants of the Qualis except the driver died at the

spot. Hence, dependents of the deceased filed claim

petitions under Section 166 of the Motor Vehicles

Act, 1988, claiming compensation of Rs.2.25 Crores

and Rs.10 Lakhs respectively.

7. Before the Tribunal claimants tendered both

oral and documentary evidence and after evaluating

the same, Tribunal allowed the claim petitions in

part and has awarded compensation of Rs.33,46,000/-

(in M.A.C.P. No.101 of 2005) and Rs.4,74,900/- (in

M.A.C.P. No.754 of 2004) with interest @ 9% per

annum. Claimants not being satisfied with the quantum

of compensation awarded by the Tribunal have filed

First Appeal Nos.2258 of 2020 and 2261 of 2020.

Whereas the insurer of Qualis has assailed the award

contending inter-alia that there was no negligence on

the part of the driver of Qualis and Tribunal

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

committed a serious error in fastening the liability

to the extent of 20% in both claim petitions by

filing First Appeal Nos.1631 of 2020 and 1632 of 2020

and has sought for being absolved of indemnifying the

award. Whereas First Appeal Nos.1954 of 2020 and 1952

of 2020 have been filed by the insurer of

truck/trailer bearing Registration No.HR-38-H-3271 on

the ground that driver of the trailer had taken all

reasonable care and caution and it is on account of

the negligence of driver of Qualis the accident had

occurred or in other words, driver of the Qualis had

not taken reasonable care and caution as expected of

a prudent driver and as such, Tribunal ought to have

fixed the liability of the Qualis's owner/

insurer/insured in the ratio of 50:50 and not 20:80.

Hence, they have sought for their respective appeals

being allowed.

8. Ms.Archana Acharya, learned counsel

appearing for the claimants has contended that

compensation awarded by the Tribunal is abysmally on

the lower side and Tribunal has committed a serious

error in not construing the income of deceased based

on Exhibits-124, 128, 129, 130, 131 and 132 which

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

reflects the income of the firm of which deceased

claimant Suresh Atmaram Agrawal was a partner and she

would contend that a plain reading of these exhibits

would indicate that average annual income of deceased

was much more than Rs.25 Lakhs per annum and as such

Tribunal ought to have considered the income of the

deceased at Rs.2 Lakhs per month instead of

Rs.20,000/- per month. Hence, she seeks for enhancing

the compensation suitably.

9. Per contra the learned advocates appearing

for the insurers of the respective vehicles would use

the contentions urged in the appeals and pray for

their respective appeals being allowed.

10. Having heard the learned advocates

appearing for the parties and after bestowing our

careful and anxious consideration to the rival

contentions raised at the Bar and on perusal of the

records and proceedings secured from the Tribunal, we

are of the considered view that following points

would arise for our consideration :

(i) Whether Tribunal was correct and justified in arriving at a conclusion that

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

there was contributory negligence on the part of driver of Qualis and thereby insurer of Qualis was required to indemnify the respective claims to the extent of 20%?

OR whether Tribunal was correct in arriving at a conclusion that compensation awarded is to be shared between the two insurance companies of the vehicles involved in the accident namely Qualis and Trailer/truck in the ratio of 20:80?

(ii) Whether the compensation awarded by the Tribunal in M.A.C.P. Nos.101 of 2005 and 754 of 2004 is just and reasonable or it requires to be modified? If so, to what extent ?

        (iii)            What order ?



11.              In     the    instant    case       there       is     no     dispute

with regard to the fact that vehicles involved in the

accident namely Qualis jeep (GJ-12-P-4981) and truck/

trailer (HR-38-H-3271) were insured by the appellants

in First Appeal Nos.2258 of 2020 and 2261 of 2020

respectively and as on the date of the accident, said

insurance policies were in force or in vogue. The

inmates of the vehicle Qualis namely Suresh Atmaram

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

Agrawal and Pavankumar Jagannathji Agrawal having

died at the spot in the accident that occurred on

15.08.2004 at about 5.00 hours (early morning) as a

result of accidental injuries sustained by them is

also not in dispute. Hence, these aspects are not

delved upon by us in these appeals.

Re.: Point No.1

12. We have perused the records and proceedings

secured from the Tribunal. A perusal of the same

would disclose that chargesheet was filed against

drivers of the Qualis as well as trailer. In the

criminal case that was filed by the jurisdictional

police, the driver of the Qualis was acquitted of

charge. That apart the driver of the Qualis vehicle

had entered the witness box before the Tribunal and

he had filed his affidavit in lieu of his

examination-in-chief as per Exhibit-138. He has

asserted thereunder and has deposed categorically

that he tried to avoid the accident namely he tried

avoiding from ramming into the truck which was

proceeding in the front and on account of there being

lack of visibility he had to necessarily dash the

Qualis vehicle which he was driving as on the hind

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

side of the trailer/truck there was no tail-lamp. In

fact, the insurer of the truck though filed written

statement and had denied the averments made in claim

petition except to the extent expressly admitted

thereunder, did not venture to challenge the

chargesheet or dispute the contents of the

chargesheet. Be that as it may. Even the driver of

the truck was not even examined. As to the reasons

for said driver having not been examined is also not

stated. In fact, during the course of hearing of the

arguments, learned advocates appearing for the

parties have made available copies of the photographs

that was taken at the spot which clearly indicate

that there is not even a reflector on the hind side

of the truck let alone the tail-lamp. The incident in

question having occurred at 5.00 a.m. in the early

morning on 15.08.2004, it would be still dark.

Necessarily all the vehicles are required to be

fitted with the tail-lamp as otherwise drivers of the

vehicle coming from the hind side would not be able

to see or visualize about any vehicle moving in their

front. In the absence of insurer discharging its

initial burden of establishing that vehicle in

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

question namely trailer/truck had the tail-lamp, the

defense set up by the insurer has to be necessarily

brushed aside. Only when the initial burden cast on

them is discharged, the burden would shift to the

claimants to discharge their burden. The best piece

of evidence that could have been tendered by the

insurer of the truck was to produce the Motor Vehicle

Inspection Report in Form No.54 as contemplated under

Rule-151(1) and (2) of the Central Motor Vehicles

Rules, 1989. Even this was not produced and as such

adverse inference has to be necessarily drawn against

the insurer of the truck, particularly when the

insured had been placed ex-parte. The burden which

was necessarily cast on the insurer of truck to stave

off its liability having not been discharged or this

exercise having not been undertaken, it has to be

necessarily held that driver of the truck had

contributed his negligence in full i.e. to the extent

of 100%.

13. Learned counsel appearing for the insurer

of the truck has relied upon the judgment of the Apex

Court in the case of Raja Rani and others vs.

Oriental Insurance Company, reported in (2009) 13 SCC

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

654, to contend that when two vehicles are involved

necessarily negligence has to be apportioned in the

ratio of 50:50. The facts as obtained in Raja Rani's

case is distinct from the facts obtained in the

present case. In the instant case, as already noticed

hereinabove, the accident in question had occurred in

the wee hours of 15.08.2004 when there was total

darkness and the vehicles moving in a highway has to

necessarily have tail-lamps and reflectors as

mandated under the Central Motor Vehicle Rules. The

photographs taken at the time of the accident would

clearly indicate that there was no tail-lamp to the

trailer/truck and not even a reflector was found on

the hind side of the truck. The driver of Qualis had

rammed from hind side of the truck on account of

truck driver having applied brake suddenly and there

being lack of visibility in the wee hours. In fact,

driver of the Qualis had tried his best to avoid the

accident and on account of which he had rammed on the

hind side of the truck on account of sudden

application of brakes by the driver of the truck. As

such, we are of the considered view that Tribunal was

not correct and justified in arriving at the

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

conclusion that driver of Qualis was also negligent

or in other words had contributed his negligence to

the cause of accident. Consequently, insured as well

as insurer of Qualis are absolved from indemnifying

the claim or award and on account of negligence being

attributable to the driver of the trailer/truck to

the extent of 100%, the insurer of said vehicle will

have to necessarily indemnify the award. Accordingly,

we answer point No.1 in favour of the insurer of

Qualis jeep (GJ-12-P-4981) by accepting the

contention raised by Shri Vibhuti Nanavati.

Re : Point No. 2 (M.A.C.P. No.754 of 2004 - First

Appeal No.2261 of 2020)

14. Tribunal after considering the evidence

tendered by the parties has allowed the claim petition

in part and has awarded a total compensation of

Rs.4,74,900/-. For the purpose of calculating the loss

of dependency, Tribunal has construed the income of

the deceased at Rs.8,000/- per month. In fact,

Tribunal has accepted the fact that deceased was

working as a Supervisor in Indo Brine Industries

Limited vide paragraph 10.1. However, on the ground

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

that his son Pavankumar Agrawal has admitted in his

cross-examination that he is doing the job in the same

company as a Supervisor and getting salary of

Rs.25,000/- per month, has construed the income of

deceased at Rs.4,000/- for the purpose of awarding

compensation under the head loss of dependency or loss

of income. This exercise undertaken by the Tribunal is

erroneous and fallacious. When it is an admitted fact

that deceased was a Supervisor working in Indo Brine

Industries Limited and getting salary of Rs.8,000/-

per month, Tribunal out to have adopted the same as

income of deceased. Hence, we are of the considered

view that income of the deceased ought to be taken at

Rs.8,000/- per month instead of Rs.4,000/- per month

as adopted by the Tribunal. Accordingly, we

redetermine the compensation payable to the claimants

towards loss of dependency as under :

        Income per month                  Rs.8,000/-
        15% Future                        Rs.1,200/-
        prospects
        Total                             Rs.9,200/-
        Deduction : 1/3rd                 Rs.3,066/-
        Total                             Rs.6,134/-
                                          Rs.6,134/- x 12 x 11
                                          Rs.8,09,688/-







       C/FA/1954/2020                                     JUDGMENT DATED: 16/11/2021




15.              Tribunal         has     awarded           an       amount            of

Rs.40,000/-            towards          loss        of      consortium                and

Rs.15,000/- each under the head loss of estate and

funeral expenses respectively which is just and

proper and it would not call for interference. In the

substitution to the compensation awarded by the

Tribunal in a sum of Rs.4,74,900/- under the four

heads, we award the same as under :

         Loss of dependency             Rs.8,09,688/-
         Loss of Estate                 Rs.15,000
         Loss of Consortium             Rs.40,000/-
         Funeral Expenses               Rs.15,000/-
         Total                          Rs.8,79,688/-

Re : Point No.2 (M.A.C.P. No.101 of 2005 in First

Appeal No.2258 of 2020)

16. Tribunal while calculating the loss of

dependency has construed the income of the deceased

at Rs.20,000/- per month. However, no reasons are

assigned as to why the income is to be construed at

Rs.20,000/- though a passing reference is made by the

Tribunal in paragraph-9.4 to the effect that deceased

was not filing the income tax returns. The fact

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

remains that deceased was a partner of two firms

namely Laxmi Motors and Agrawal Automobiles as per

Partnership Deed dated 01.04.1998 which came to be

produced and marked before Tribunal. In fact the

audit report as required under Section-44AB of the

Income Tax Act, 1961, came to be filed by the

claimants before the Tribunal and were marked as

Exhibits-128, 129, 131 and 132. Exhibits-128 and 129

which are statutory audit reports and it relates to

the partnership firms namely Laxmi Motors and Agrawal

Automobiles. Whereas Exhibit-130 relates to tax audit

relating to the proprietary firm M/s.Shiv Shankar &

Co. The audit report of the two firms for the

subsequent year 2004-05 has been produced and marked

as at Exhibits-131 and 132. These returns would

reflect the income of the firm and to some extent

apportionment of profits of the firm to the partners.

In fact, the wife of deceased who entered the witness

box and had filed the affidavit in lieu of her

examination-in-chief as per Exhibit-70 has clearly

admitted in her cross-examination that she has

continued as partner of Laxmi Motors and Agrawal

Automobiles. She has also admitted that she is the

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

proprietor of Shiv Shankar and Co. She further admits

that she is doing business in all the three firms

which her deceased husband was conducting during his

lifetime. She further admits that she has not

tendered any document to establish with regard to the

income tax returns in respect of the three firms

filed after 2005 i.e. subsequent to death of her

husband. In fact, she goes to the extent of admitting

in her cross-examination that in all the three

businesses she is earning profits. In other words,

the income which was earned from the business of

firms which the deceased was carrying on, there is no

diminution or in other words the income has not

reduced. It was incumbent upon the claimants to have

established before the Tribunal as well as before

this Court as to how there was loss of income to the

claimants by virtue of death of her husband. Be that

as it may. The fact remains that deceased was an

active partner of the two firms and the proprietor of

the firm Shiv Shankar & Co. and he would have

naturally and necessarily contributed his physical

exertion to carry on the businesses and would have

been remunerated by way of either salary or expenses.

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

This ought to have been established by the claimants

before Tribunal by producing cogent material.

However, this exercise was not undertaken for reasons

best known. Yet this Court cannot ignore the fact of

claimants having lost certain income which the

deceased was contributing to the family and as such

just and reasonable compensation has to be awarded to

the wife and son of the deceased. On account of

Tribunal having taken Rs.20,000/- as income of the

deceased on the basis of guesswork and this Court

taking note of the documentary evidence that has been

placed before the Tribunal namely Exhibits-128 to 132

which discloses that deceased was actively

participating in all businesses and the fact that the

certificate issued by the Chartered Accountant on

07.12.2011 disclosing the income of three firms was

to the tune of Rs.47 Lakhs per annum and for the year

2004-05, the remuneration that was paid to Suresh

Agrawal was Rs.1,89,088/-. The income of deceased or

expenditure that was booked by the firm for payment

of remuneration to deceased was to the tune of

Rs.15,750/- per month. If it is to be so, for one

firm, necessarily he would have got in the same

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

proportion from yet another firm in which deceased

was a partner. As such, on the basis of guesswork, we

adopt the income of the deceased at Rs.30,000/- per

month from two firms. Though Ms.Archana Acharya,

learned counsel for the claimants has made a valiant

attempt to contend that income of the deceased was

Rs.2 Lakhs per month, we are neither impressed nor

willing to accept the said argument as it is neither

in the vicinity of truth nor susceptible to

acceptance particularly in the background of there

being no cogent documentary evidence to establish as

to what was the income that deceased was earning

which is now stood deprived to his wife and son. The

fact that the wife who entered the witness box having

stated that she continues to be the partner of both

the firms and she continues to be the proprietor of

the firm Shiv Shankar & Co. and all the firms are

earning the same profits as it was earned while her

deceased husband was alive, it would be preposterous

to accept the contention of Ms.Archana Acharya that

loss of dependency is to be calculated on the basis

of Audit Reports Exhibits-128 to 132 partially.

However, we are of the view that remuneration that

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

was being paid by the two firms to the deceased is to

be construed as loss of income to the claimants.

Hence, we proceed to compute the loss of income by

construing the income of deceased at Rs.30,000/- per

month by applying the principles laid down by the

Hon'ble Apex Court in the cases of National Insurance

Company Limited vs. Pranay Sethi and others, reported

in (2017) 16 SCC 680 and United India Insurance

Company Limited vs. Satinder Kaur @ Satwinder Kaur

and others, reported in 2020 SCC Online SC 410 and

having regard to the age of the deceased at 41 years,

the loss of future prospects at 25% of the income

which would be Rs.7,500/- per month will have to be

added to the income of the deceased. Thus, in all the

loss of income to the claimants would be Rs.37,500/-

per month and having regard to the fact that there

were five dependents, 1/4th will have to be deducted

towards living expenses as held by the Hon'ble Apex

Court in Pranay Sethi (supra) and a sum of Rs.9,375/-

is thus deducted from the total income and thereby

net loss of income to the dependents would be

Rs.28,125/- per month (37,500 - 9,375 = 28,125/-) and

adopting the multiplier of 14, the total loss of

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

income would be Rs.47,25,000/- (28,125 x 12 x 14).

Since two minor children were there at the time of

death of their father and mother, they would be

entitled to parental and filial compensation to the

extent of Rs.40,000/- each. On account of wife having

lost the company of her husband, she would would be

entitled to loss of consortium to the extent of

Rs.40,000/-. Thus in all they would be entitled to

the compensation of Rs.1,60,000/- in addition to the

compensation towards loss of estate and funeral

expenses at the rate of Rs.15,000/- each. Thus,

claimants would be entitled to total compensation

under the following heads :

          Loss of dependency                            Rs.47,25,000/-
          Parental Compensation                               Rs.80,000/-
          Filial Compensation                                 Rs.40,000/-
          Loss of consortium                                  Rs.40,000/-
          Funeral expenses                                    Rs.15,000/-
          Loss of Estate                                      Rs.15,000/-
          Total                                         Rs.49,15,000/-

17. Accordingly, point No.2 is answered partly

in favour of the claimants.

Re : Point No.3

18. For the reasons aforestated, we proceed to

C/FA/1954/2020 JUDGMENT DATED: 16/11/2021

pass following

ORDER

(i) First Appeal Nos.1631 of 2020 and

1632 of 2020 are allowed. First Appeal

Nos.1954 of 2020 and 1952 of 2020 are

dismissed and the appeals filed by the

claimants i.e. First Appeal Nos.2258 of 2020

and 2261 of 2020 are allowed in part.

      (ii)               Judgment        and           award        passed          by

      Tribunal           in     M.A.C.P.        No.101         of     2005        and

M.A.C.P. No.754 of 2004 dated 13.12.2019 is

hereby modified and in substitution to what

has been awarded by the Tribunal, a sum of

Rs.49,15,000/- and Rs.8,79,688/- is awarded

with interest @ 9% p.a. from the date of

petition till date of payment or deposit

whichever is earlier.

(iii) The amount deposited by the

insurer in First Appeal No.1631 of 2020 and

1632 of 2020 is ordered to be refunded to

the insurer by the jurisdictional Tribunal

with proportionate interest, if any accrued