United India Insurance Company ... vs Ghanshyambhai Shivabhai Patel
2021 Latest Caselaw 17434 Guj

     C/FA/1877/2013                               JUDGMENT DATED: 18/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1877 of 2013


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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               UNITED INDIA INSURANCE COMPANY LIMITED.
                                 Versus
               GHANSHYAMBHAI SHIVABHAI PATEL & 9 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 3,4,5,6,7,8,9
RULE SERVED(64) for the Defendant(s) No. 1,10,2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 18/11/2021

                             ORAL JUDGMENT

1 The present First Appeal is preferred by the insurance company against the judgement and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Vadodara dated 22 nd February 2013 in the Motor Accident Claim Petition No.407 of 1993, by which the learned Tribunal awarded the compensation of Rs.4,74,200/- with interest at the

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rate of 7.5% per annum to the claimants from the date of the claim petition by holding the opponents Nos.1, 2 and 3 jointly and severally liable.

2 The brief facts of the case are that on 13 th September 1992 at about 8:30 p.m., the deceased Ismailsha was going on a scooter bearing registration No.GCS 2612, belonging to the opponent No.2, as a pillion rider, for having work of the opponent No.2. The said scooter was being driven by opponent No.1 in rash and negligent manner and in excessive speed. As a result, the opponent No.1 has lost control over the scooter and went on wrong side and dashed with the truck. Therefore, the deceased Ismailsha, a pillion rider, flung away from the scooter and sustained lethal injuries. Thus, the accident took place on 13 th September 1992 at about 8:30 p.m. on N.H. No.8 near Samrat Petrol Pump, due to rash and negligent driving of the driver of the scooter i.e. opponent No.1.

3 The learned Tribunal has issued notice to the opponents and the insurance company and the owner of the vehicle have been served.

4 The learned Tribunal framed the issues for consideration and proceeded further by recording evidence of the witnesses from the claimants side and after giving proper opportunity to cross-examine such witnesses, the learned Tribunal has heard the arguments and proceeded for final judgement and award and accordingly, the learned Tribunal has awarded Rs.4,74,200/- with 7.5% interest, by holding the opponents Nos.1, 2, and 3 jointly and severally liable. Against that, the present appeal is preferred by the Insurance Company.

     C/FA/1877/2013                              JUDGMENT DATED: 18/11/2021



5     Learned advocate Mr. Vibhuti Nanavaty for the Insurance

Company submitted that the claim was resisted by opponent No.3 - the Insurance Company. The Insurance Company, by filing written statement at Exhibit : 43, denied the averments made in the petition regarding the manner in which the accident took place, the alleged negligence on the part of the driver of the vehicle and also disputed the reasonableness of the amount claimed as compensation by the claimants. The Insurance Company has also disputed the fact that the accident occurred due to rash and negligent driving of the driver of the scooter. The Insurance Company has taken a plea that considering the contents of the FIR filed by the opponent No.1, the accident took place due to rash and negligent driving by the driver of the scooter only. The truck, with whom the accident occurred, could not be traced and therefore, the applicants falsely filed the present claim petition. He has contended that the learned Tribunal has erred in considering the income of the deceased as Rs.2,000/- per month, though admittedly the income of the deceased was found Rs.1,040/- per month. He has also submitted that the learned Tribunal has erred in relying on salary certificate produced at Exhibit : 50 as the witnesses who stepped into the witness box failed to adduce the supporting documents to prove the said salary certificate and therefore, the learned Tribunal has erred in considering such salary certificate for assessing the income of the deceased. He has also submitted that the learned Tribunal has erred in deducting 1/10 towards personal expenses of the deceased as it ought to have considered 1/4 income towards personal expenses. He has, therefore, submitted that the learned Tribunal has not properly considered the quantum of compensation. The learned advocate for the appellant has not raised any other ground as regards the amount of compensation awarded by the learned Tribunal. The Insurance Company has also disputed the rate of

C/FA/1877/2013 JUDGMENT DATED: 18/11/2021

interest in the claim petition. He has submitted that this appeal may be allowed.

6 Per contra, Mr. M. I. Mansuri, learned advocate for the respondents - claimants has submitted that the judgement and award passed by the learned Tribunal is just and proper and there is no error apparent on the face of it. He has further submitted that the learned Tribunal has considered the quantum of compensation very conservably. It is also submitted that though the ample evidence are produced on record, the learned Tribunal has considered the income only Rs.2,000/- per month and by adding 30% amount towards future prospective, the learned Tribunal has considered income only Rs.2,600/- per month towards loss of prospective income and annually, the said income would come to Rs.31,200/-. Considering 35 years of age of the deceased and in view of the decision of the Apex Court in Sarla Verma vs. Delhi Transport Corporation [(2009) 6 SCC 121], the learned Tribunal has considered 16 multiplier and by applying 16 multiplier, the loss of future dependency calculated to the tune of Rs.4,99,200/- and the learned Tribunal thought to deduct 1/10 amount of the loss of future dependency as the deceased had a wife, six children and aged parents in the family. Accordingly, the loss of future dependency comes to Rs.4,49,200/- after deducting Rs.50,000/- as personal and living expenses of the deceased. The learned Tribunal has awarded Rs.10,000/- towards loss of estate, Rs.5,000/- towards loss of consortium, Rs.5,000/- towards funeral expenses and other miscellaneous expenses and Rs.5,000/- towards loss of love and affection. Thus, the learned Tribunal has awarded total compensation of Rs.4,74,200/-. In view of the decision of the Apex Court in National Insurance Company Limited vs. Pranay Sethi [(2017) 16 SCC 680], the loss of consortium should be at least Rs.70,000/- and therefore, even if

C/FA/1877/2013 JUDGMENT DATED: 18/11/2021

the amount of dependency benefit and the amount under the conventional head is considered, the total awarded amount of compensation would be very reasonable. In fact, the learned Tribunal ought to have awarded more amount after considering the more income and also considering the various heads under the conventional amount. Further, he has submitted that said Ismailsha was doing carpentry work and because of the financial burden on him, he had also started to work in the factory of the opponent No.2 as a Moulder. He was doing overtime and therefore, the total monthly income of the deceased was Rs.3,000/- per month and if he would have lived long, he would have earned more than what he was earning at the time of accident. The claimants have also prayed for compensation towards funeral expenses, etc. The claim petition was filed to get the compensation of Rs.5 Lakh. He has submitted that this appeal may be dismissed.

7 I have considered the rival submissions of the parties. This Court has perused the Record and Proceedings of the case. The opponent Nos.1 and 2 have not extended cooperation and therefore, the opponents were permitted to cross-examine the applicants and their witnesses on all the counts. The opponent No.2 was also directed to produce the driving licence, registration documents of the alleged scooter, etc. I find that the present appeal is filed mainly on the ground of quantum of compensation awarded and calculation of the awarded amount by the Tribunal, more particularly, 1/10 deduction towards personal expenses. I have perused the oral as well as documentary evidence adduced on record. The Tribunal has considered the deposition of Hanifaben - wife of the deceased, which says that the deceased was aged about 35 years and died due to lethal injuries occurred during the accident. The deceased was earning Rs.3,000/- per month from the various source and if the deceased would have lived long, then he would

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have contributed more amount to his family. To substantiate the evidence, the applicants examined one witness viz. Dalsukhbhai Ramji at Exhibit : 49. According to the said evidence, the said witness was familiar with the deceased, he was served in the partnership firm as Moulder, however he could not recall the exact tenure of service of the deceased. Although he could say that the deceased was serving since 1991 and his daily wage was Rs.40/- per day and over and above, he was doing some other work and earning more. He also identified and verified the salary certificate produced at Exhibit : 50 issued by his company. In his cross-examination, he has stated that at present, he retired and paid little attention in the business. Therefore, the Tribunal considered the salary certificate produced at Exhibit : 50. It was also exhibited after consent of the other side and therefore, there is no reason for the Tribunal to disbelieve the salary certificate of the deceased which is a vital evidence for the income and the same is supported by the oral evidence of the said witness i.e Dalsukhbhai Ramji (Exhibit : 49). Though the Tribunal has calculated only 26 working days in a month, the Tribunal had therefore presumed the income and has come to the conclusion that the deceased was earning at least Rs.2000/- per month in the year 1992, and after considering the said monthly income and 35 years age of the deceased and the deceased had responsibility of his wife and six children as well as his parents, by adding 30% amount towards prospective income to the existing income, the future monthly dependency would come to Rs.2600/- per month and annually, it would come to Rs.31,200/-, the Tribunal has considered multiplier of 16 in view of the decision of the Apex Court in Sarla Verma (supra) and therefore, Rs.4,99,200/- is calculated as future dependency and thereafter, the Tribunal has found that since the deceased had 9 dependents including wife, four daughters, two sons, father and mother, 1/10 of the amount of Rs.4,99,200/- is deducted and therefore, the

C/FA/1877/2013 JUDGMENT DATED: 18/11/2021

amount under the head of dependency benefit is considered only Rs.4,49,200/- and by adding Rs.10,000/- towards loss of estate, Rs.5,000/- towards loss of consortium, Rs.5,000/- towards funeral and other miscellaneous expenses and Rs.5,000/- towards loss of love and affection, etc, the total compensation of Rs.4,74,200/- is awarded by the Tribunal.

8 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 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.

9 In view of the above, I find no illegality or impropriety in the impugned judgement and award passed by the Tribunal. The Tribunal has considered the conventional amount which should be at least Rs.70,000/- in view of the decision of the Apex Court in Pranay Sethi (supra). Therefore, the judgement and award passed by the Tribunal is just and proper. I find that the Tribunal had not awarded the amount on higher side and therefore, no interference in the impugned judgement and award passed by the Tribunal is called for.

10 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. Therefore, the present

C/FA/1877/2013 JUDGMENT DATED: 18/11/2021

appeal preferred by the insurance company deserves to be dismissed and is dismissed, with no order as to costs.

11 In view of the dismissal of the present Appeal, the entire payable amount lying in Fixed Deposit Receipts shall be paid forthwith to the claimants after due verification.

12 The record and proceedings be sent back to the Tribunal concerned forthwith.

(SANDEEP N. BHATT,J) CHANDRESH