Gujarat High Court
The Oriental Insurance Co. Ltd vs Rajnikant Mastram ... on 18 November, 2021
Bench: Sandeep N. Bhatt
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 676 of 2006
With
R/FIRST APPEAL NO. 677 of 2006
With
R/FIRST APPEAL NO. 678 of 2006
With
R/FIRST APPEAL NO. 679 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE ORIENTAL INSURANCE CO. LTD.
Versus
RAJNIKANT MASTRAM NIMAVAT(DECDTHR'HEIRS & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT(100) for the Defendant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1.1,1.2
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1.3
MR.DIPAK B PATEL(3744) for the Defendant(s) No. 3
MS TANHA N PARIKH(3479) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/11/2021
COMMON ORAL JUDGMENT
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
1 As the issues raised in all the captioned appeals are the same and
the challenge in all the captioned appeals is also to the selfsame common
judgement and award passed by the Tribunal, those were taken up for
hearing analogously and are being disposed of by this common
judgement and order.
2 The present group of appeals is preferred by the appellant -
Insurance Company against the common judgement and award passed
by the Motor Accident Claims Tribunal (Auxiliary), Fast Track Court,
Rajkot dated 8th November 2005 in the Motor Accident Claim Petition
Nos.596 of 2003, 597 of 2003, 598 of 2003 and 599 of 2003, by which
the learned Tribunal has awarded compensation of Rs.4,70,000/-,
Rs.6,28,400/-, Rs.4,70,000/- and Rs.4,94,000/-, respectively, with
interest at the rate of 9% per annum.
3 The facts of the present case are that in an unfortunate accident,
three unmarried persons namely Rajnikant, Sultanbhai and Jayesh and
one married person namely Dharmendrasinh died on the sport, while
they were proceeding towards Satalpur in the Ambassador Car bearing
registration No.GJ-3AB-1985. The said Ambassador car was driving by
married person namely Dharmendrasinh. The said accident occurred
when the car reached near village Katalpa, at that point of time, one
Tanker bearing registration No.GJ-12T-7960 came in rash and negligent
manner and dashed with the Ambassador car. Therefore, the claimants
have filed the claim petitions to get the compensation from the Oriental
insurance company, New India Assurance Company, the driver and the
owner of the offending vehicle - Tanker.
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
4 All the three unmarried persons were earning Rs.2,800/- per
month and as they were very young, their potential income would have
increased upto the level of Rs.9,000/- per month, if they would not have
met with an accident, and therefore, the heirs of the deceased persons
filed claim petition Nos.596 of 2003, 598 of 2003 and 599 of 2003,
respectively, to get the compensation before the Tribunal.
5 So far as the married deceased person namely Dharmendrasinh is
concerned, it appears that he was a driver of the said Ambassador car
and was earning Rs.2,800/- per month and considering his potential
income, he was likely to earn Rs.6,000/- per month and therefore, his
heirs filed the claim petition No.597 of 2003 to get the compensation
before the Tribunal.
7 The Tribunal issued notice and both the Insurance Company
appeared and raised several contentions before the Tribunal and
thereafter, the Oriental Insurance Company and the New India
Assurance Company tendered written statements at Exhibit : 21 and 31,
respectively and they contended that at the time of accident, the driver
of the offending vehicle was not holding the valid and effective driving
licence and therefore, they stood exonerated from the liability of
compensation. Both the insurance companies denied the allegations
made in the claim petitions, including the age of the deceased, their
income, potentiality and even the dependency of the claimants and also
challenged to prove the same before the Tribunal. The owner of the car
Shri Gopalbhai tendered his written statement at Exhibit : 38, wherein
he had denied all the allegations made by the claimants. It was
contended by the insurance company that in the case of unmarried
deceased persons, the dependency would be only 1/3 rd for the
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
claimants. The insurance company also contended that the amount
claimed by the claimants is excessive and exorbitant and without any
basis and therefore, both the insurance companies pray to dismiss the
claim petitions with costs.
8 The Tribunal framed the issues at Exhibit : 44 and recorded the
evidence after considering the oral as well as documentary evidence. The
Tribunal proceeded further and after hearing the arguments of both the
parties, the Tribunal allowed the claim petitions No.596 of 2003, 598 of
2003 and 599 of 2003 by awarding compensation of Rs.4,70,000/-,
Rs.4,70,000/- and Rs.4,94,000/-, respectively, with interest at the rate of
9% per annum. The Tribunal also allowed the claim petition No.597 of
2003 by awarding compensation of Rs.6,28,400/- with interest at the
rate of 9% per annum.
10 Being aggrieved by and dissatisfied with the impugned judgement
and award, the Insurance Company - The Oriental Insurance Company
has preferred the present appeals mainly on the ground that the amount
of compensation awarded by the Tribunal is on higher side. Therefore,
the Insurance Company has challenged the quantum compensation
awarded by the Tribunal and has raised the contention regarding the
aspect of quantum.
11 Mr. Vibhuti Nanavati, learned advocate for the Insurance
Company, while arguing the matter, contended that all the three
unmarried deceased persons were earning Rs.2,800/-, which cannot be a
co-incident and there was absolutely no evidence on record, even though
the Tribunal has rightly accepted the income of the deceased persons
Rs.3,000/- per month. He has also contended that the multiplier in the
case of unmarried persons should be on the lesser side. He has also
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
contended that the deduction in the case of unmarried person should be
on higher side and the loss of dependency should be taken as 1/3 rd
income of the deceased. He has further contended that the interest
awarded on the amount of claim is also on higher side and in view of the
various judgements of the Hon'ble Apex Court, the judgement and award
passed by the Tribunal should be interfered with by this Court and he
has prayed to set aside same. Learned advocate for the Insurance
Company has not raised any other ground as regards the compensation
awarded by the Tribunal.
12 Per contra, the submission of Ms. Tanha Parikh, learned advocate
for the claimants is that the judgement and award passed by the learned
Tribunal is just and proper. She has further submitted that considering
the various decisions of the Hon'ble Apex Court, the Tribunal has rightly
considered the monthly average income of the deceased as Rs.3,000/-
and after deducting 1/3rd amount from the said income i.e Rs.1,000/-,
Rs.2,000/- per month, is considered as an amount of dependency. She
has submitted that the Tribunal has also considered the multiplier of 15,
which is on the lower side and considering the age of the deceased
persons and the age of the mothers of the deceased persons in the claim
petitions Nos.596 of 2003 and 598 of 2003, the Tribunal has considered
multiplier of 15 and by applying the multiplier 15, an amount of
dependency would come to Rs.3,60,000/- [Rs.2,000/- x 12 x 15], and in
the claim petition No.599 of 2003, considering the age of the deceased
and the age of the mother of the deceased, the Tribunal has considered
multiplier 16 and by applying the multiplier 16, an amount of
dependency would come to Rs.3,84,000/- [Rs.2,000/- x 12 x 16].
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
13 Ms. Parikh has further submitted that the Tribunal has considered
Rs.1,00,000/- towards conventional amount and Rs.10,000/- towards
cremation expenses and therefore, the Tribunal has awarded total
compensation of Rs.4,70,000/- [Rs.3,60,000 + 1,00,000 + 10,000] in
claim petitions Nos.596 of 2003 and 598 of 2003, respectively. She has
submitted that in the claim petition No.599 of 2003, the Tribunal has
also considered Rs.1,00,000/- towards conventional amount and
Rs.10,000/- towards cremation expenses and therefore, the total
compensation of Rs.4,94,000/- [Rs.384,000/- + 1,00,000 + 10,000] has
been awarded by the Tribunal.
14 Ms. Parikh, the learned advocate for the claimants has also
submitted that in the claim petition No.597 of 2003, the deceased was a
driver of the Ambassador car and also a married person and the Tribunal
has considered the average monthly income of Rs.3,000/- and
considering the fact that the married deceased claimant had left behind
five family members in his family. The Tribunal has considered average
monthly income of Rs.2,400/- after deducting 1/5th share i.e. Rs.600/-
towards personal expenses from the said amount and thereafter, the
Tribunal has also considered multiplier of 18 in view of the age of the
deceased as 29 years as well as the age of his wife as 28 years. She has
submitted that the Tribunal has awarded amount of dependency of
Rs.5,18,400/- [Rs.2,400/- x 12 x 18] and by adding Rs.1,00,000/-
towards conventional amount and Rs.10,000/- towards cremation
expenses, the Tribunal awarded the compensation of Rs.6,28,400/-
[Rs.5,18,400/- + Rs.1,00,000/- + Rs.10,000/-].
15 Ms. Parikh has also submitted that in view of the decisions of the
Hon'ble Apex Court in the case of Sarla Verma vs. Delhi Transport
Corporation reported in (2009) 6 SCC 121 and in the case of National
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC
680, the conventional amount could be restricted to Rs.70,000/, but, in
view of the fact that the multiplier is on the lower side, the amount
awarded by the Tribunal is just and proper. She has argued that the
Insurance Company has not taken any care to examine any witness or
any authorized person of the RTO office to prove the contention that the
drivers of the vehicles are not holding the valid driving licence. On the
contrary, xerox copies of the licence are already produced on record and
therefore, the Insurance Company failed to discharge its duty to lead any
cogent and convincing evidence in respect of its contentions and
therefore, she has submitted that the present appeals be dismissed.
16 I have considered the rival submissions made by the learned
advocates for the respective parties. This Court has perused the Record
and Proceedings of the case. I am convinced that the amount awarded
by the Tribunal is just and proper. On the contrary, it seems that the
multiplier is considered on lower side. In view of the judgements of the
Hon'ble Apex Court in Sarla Verma (supra) and Pranay Sethi (supra),
the multiplier should be 18 considering the age
of the deceased. In fact, the Tribunal has considered the multiplier 15. It
appears that there is no cross objection or any cross appeal filed by the
appellants, even otherwise, the amount of actual income is also
considered on the very lower side, as there is no cogent evidence
produced by the claimants and therefore, whatever the amount is
considered by the Tribunal seems to be just and proper in the facts and
circumstances of the present case. Though the amount under the
conventional head is on the higher side in view of the judgement of the
Hon'ble Apex Court, but since the multiplier is considered on the lower
side by the Tribunal, which should be 18 instead of 15, the amount of
the compensation would go on the higher side, and therefore, the
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
contention regarding the quantum of amount awarded by the Tribunal,
as raised by the learned advocate for the Insurance Company, is not
acceptable, and hence, rejected.
17 The second contention, though not pleaded in memo of First
Appeals as regards the drivers of both the vehicles are not having valid
driving licence, is not supported by any material by the Insurance
Company. On the contrary, the Insurance Company has failed to prove
its contention before the Tribunal by not leading any cogent and
convincing evidence, more particularly, by not examining any witness or
any authorized officer from the RTO office and there are series of the
judgements of this High Court as well as the Hon'ble Apex Court when
the Insurance Company has failed to discharge its duty, such contention
cannot be accepted by this Court. I find that such contention is not
tenable in law, and hence, rejected, more particularly, when the
claimants have produced the xerox copies of the driving licence of the
drivers of both the vehicles on record. Therefore, I find that the
judgement and award passed by the Tribunal is
well reasoned and in accordance with the provisions of law and after
considering the documentary and oral evidence produced on record by
the parties, there is no infirmity or illegality in the impugned judgement
and award.
18 It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the concept of
'just and fair' compensation. It is a beneficial legislation which has
been framed with the object of providing relief to the victims or
their families. Section 168 of the Motor Vehicles Act deals with the
concept of 'just compensation' which ought to be determined on the
foundation of fairness, reasonableness and equitability. Although such
C/FA/676/2006 JUDGMENT DATED: 18/11/2021
determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and fair
compensation irrespective of the amount claimed by the claimants.
19 In view of the provisions of the Motor Vehicles Act, the award
which is passed by the Tribunal, is otherwise found very reasonable and
just.
20 In view of the above, I find no merit in any of the appeals.
Accordingly, all the four appeals are dismissed, with no order as to costs.
21 In view of the above, it is directed that the amount which is lying
with the Tribunal and/or in Fixed Deposit Receipts shall be disbursed in
favour of the claimants by account payee cheque after proper verification
and after following due procedure.
22 The record and proceedings be sent back to the Tribunal
concerned, forthwith.
(SANDEEP N. BHATT,J)
CHANDRESH
