New India Assurance Co. Ltd vs Mohanbhai Kalabhai ...
2021 Latest Caselaw 17438 Guj

     C/FA/653/2006                              JUDGMENT DATED: 18/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 653 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                   NO
     to 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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            NEW INDIA ASSURANCE CO. LTD & 4 other(s)
                            Versus
      MOHANBHAI KALABHAI RATHOD(DECDTHR'HEIRS & 3 other(s)
==========================================================
Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1.5
MR BIPIN I MEHTA(456) for the Defendant(s) No. 1.1
MR VICKY B MEHTA(5422) for the Defendant(s) No. 1.1
RULE SERVED(64) for the Defendant(s) No. 1.2,1.3,1.4,1.6,1.7,1.8
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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 appellant - Insurance Company against the judgement and award passed by the Motor Accident Claims Tribunal (Auxiliary), Rajkot dated 21 st September 2005

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in the Motor Accident Claim Petition No.676 of 1996, by which the learned Tribunal has awarded the compensation of Rs.7,98,200/- with 9% interest per annum.

2 The short facts of the case are that; the claimants i.e. the respondents Nos.1 to 5 are the legal heirs and representatives of deceased Mohanbhai Kalabhai Rathod filed the above mentioned claim petition to get the compensation. It is the case of the claimants in the claim petition that on 23 rd April 1996, the deceased Mohanbhai Kalabhai Rathod was driving scooter bearing registration No.GCI 3884 to go from Rajkot to Ahmedabad in the morning. When he reached about 8 kms. away from Rajkot near Harikrupa Petrol Pump at 10:15 a.m., one Metador bearing registration No.GJ-13-T-1611 came in rash and negligent manner from opposite direction, took turn at the said petrol pump without giving any signal or indication and collided with the scooter of the deceased. Due to said accident, Mohanbhai Kalabhai Rathod succumbed to the injuries and expired on the spot. Therefore, heirs of Mohanbhai had filed the claim petition to get the compensation of Rs.10 Lakhs under the various heads against the present appellant - Insurance Company and the owner of the vehicle - Metador.

3 The notice came to be issued by the Tribunal and the driver of the vehicle, owner of the vehicle and the insurance company appeared through the advocate asking permission under Exhibit : 18 from the Tribunal. The written statement was filed by the Insurance Company at Exhibit : 16. The Tribunal framed issues at Exhibit : 24 and thereafter, the evidence was led by the claimants and the insurance company cross- examined the evidence. The Tribunal considered the documentary as

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well as oral evidence available on record and awarded the compensation of Rs.7,98,200/- with 9% interest to the claimants.

4 Being aggrieved and dissatisfied with the impugned judgement and award passed by the Tribunal, the present appeal is preferred by the Insurance Company.

5 I have heard Mr. Sunil Parikh, learned advocate for the appellant

- Insurance Company and Mr. Vicky Mehta, learned advocate for the respondents - claimants. The record and proceedings is called for by this Court which is received and the same is perused.

6 Learned advocate Mr. Parikh for the Insurance Company has submitted that the amount of compensation, which is awarded by the Tribunal is grossly exorbitant. He has also submitted that the Tribunal has taken monthly dependency of Rs.3,750/- under the dependency head after deducting 1/6 th amount under the head of personal expenses of the deceased. He has further submitted that the Tribunal has awarded multiplier of 17 which is on higher side. He has also submitted that the Tribunal has wrongly relied upon the Income Tax Returns, which is filed posthumously and therefore, it could not be considered. He has also submitted that on the aspect of liability, the Tribunal has not considered that the driver of the offending vehicle i.e. Metador does not hold the valid and effective driving licence and the claimants have failed to prove that aspect and therefore, learned advocate for the Insurance Company has submitted that in view of the catena of judgements of the Hon'ble Apex Court as well as this Court, the present appeal may be allowed. The insurance company has raised two main contentions in the written statement that the alleged accident took place due to rash and negligent driving of the deceased, and that if the Tribunal holds that the driver of

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the offending vehicle Metador was also guilty for the alleged accident, then the deceased was also liable to be guilty for the alleged accident. The insurance company also raised the contention that the driver of the offending vehicle Metador was not having the valid driving licence and therefore, the driver had breached the conditions of the insurance policy. Therefore, the Insurance Company has further contended that it is not liable to pay any amount or indemnify the insured. It is also contended by the Insurance Company regarding the potentiality of the future income of the deceased as well as the age and income of the deceased at the time of alleged accident and also the factor of dependency of the deceased. The Insurance Company has challenged the judgment and award mainly on two grounds; (i) on the ground of deciding quantum of the amount of compensation awarded by the Tribunal, and (ii) negligence attributes to the vehicles. The advocate for the appellant has not raised any other ground as regards the compensation awarded by the Tribunal.

7 Per contra, Mr. Mehta, learned advocate for the claimants has submitted that the amount awarded by the Tribunal is just and proper. The accident had occurred in the year 1996 and the claimants had lost the sole bread earner of their family. The Tribunal has awarded the amount of compensation after considering the documentary as well as oral evidence available on record. He has also submitted that the Tribunal has rightly considered the aspect of income, which is based on the Income Tax Returns and keeping in mind the various case laws of the Hon'ble Apex Court, granted the multiplier of 17 after considering the age of the deceased - 35 years at the time of alleged accident, and that it is the say of the claimants that at the time of accident, the deceased was aged about 35 years and he was having two factories of his ownership viz. 'Samrat Welding Works' and 'Samrat Industries' and

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one factory viz. 'Samtrat Steel Products' was in partnership firm and he was earning about Rs.1 Lakh per month. The claimants produced on record the Income Tax Returns of the year 1994-95 and also produced the books of accounts for the year 1995-96. The claimants also averred in the claim petition that the deceased was the only bread earner in their family and due to sudden death of the deceased, his family was in miserable condition. In the claim petition, since the deceased was earning Rs.1 Lakh, Mr. Mehta, learned advocate for the claimants is restricting his submissions to that effect. He has further submitted that the insurance company has neither examined any witness nor any authorized officer from the RTO nor any reliable witness to establish that the driver of the offending vehicle was having the valid driving licence and therefore, he has submitted that the burden is on the insurance company to establish its case when the insurance company is disputing the validity of the driving licence of the driver of the offending vehicle. Therefore, he has submitted that the present appeal may be dismissed.

8 I have considered the submissions made by both the learned advocates appearing for parties. It appears that the Tribunal has discussed all the relevant aspects elaborately by considering cogent and convincing evidence produced on record while awarding the amount of compensation and the contention raised by the insurance company regarding the validity of the driving licence of the driver of the offending vehicle has also been dealt with by the Tribunal. The Tribunal has observed in para 5 of its judgement that the FIR produced at Exhibit : 36, panchnama at Exhibit : 37 and even the statement of the driver of the offending vehicle, which was made before the police at Exhibit : 45 and other witnesses had also given the statements before the police at Exhibit : 39 and 41, which clearly indicate that the driver of the

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offending vehicle was negligent as he took turn without giving any indication or signal. The Tribunal has rightly fixed 10% liability of the driver of the scooter that the deceased and 90% laibility of the driver of the Metador from documentary evidence like FIR, panchnama available on record and therefore, there is no infirmity regarding findings about negligence of driver of vehicle.

9 Considering the second contention raised in this appeal regarding quantum of compensation awarded by the Tribunal, the Tribunal has awarded Rs.7,98,200/- under the various heads. While considering the actual income, the Tribunal discussed the evidence in paras 10, 11 and 12 of the judgement, whereby the Tribunal has considered the factum that the deceased was having ownership of two factories viz. 'Samrat Welding Works' and 'Samrat Industries' and he was dealing with drilling machines, spare parts and also watch dial of the wrist watch. The deceased was also having the business in the name of 'Samrat Steel Products' at Shapar and manufacturing of Iron Chairs. The claimants have also produced on record the income statement, showing the income of Rs.1 Lakh per annum for the year 1995-96, at Exhibit : 52 and also produced on record the Income Tax Returns, which is filed on the basis of the statement, at Exhibit : 51, which indicates the income of the deceased was Rs.66,598/- and other evidence of income for the year 1994-95 is also produced by way of balancesheet at Exhibit : 54 and 55, wherein Rs.61,641/- and Rs.76,684/- per annum has been shown as income. The learned Tribunal has considered the electric bills produced at Exhibit : 59 which indicates the electric consumption was about Rs.1700/- to Rs.1800/- per month of the above mentioned three firms and therefore, the Tribunal has considered the income Rs.4000/- as a monthly income of the deceased. The Tribunal has rightly considered the

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age of the deceased as 35 years and the Tribunal has added Rs.2,000/- per month, so it comes to Rs.6,000/- as monthly average income towards prospective income of the deceased. The Tribunal has also deducted 1/6 towards personal expenses and monthly dependency is considered as Rs.5,000/- per month and the Tribunal has considered Rs.10,20,000/- by applying the multiplier 17 and therefore, total Rs.10,20,000/- has been awarded under the head of loss of dependency. The Tribunal has also considered even the age of mother. There also, the Tribunal applied the multiplier of 15 and the amount under the dependency comes to Rs.9 Lakh. After doing this much exercise, the Tribunal has somehow considered the monthly income of the deceased Rs.3,000/- only and by adding 50% amount towards future income, the Tribunal has considered Rs.4,500/- monthly average income. Then, the Tribunal has further deducted 1/6 th towards personal expenses from Rs.4,500/-, which comes to Rs.750/- and ultimately, the Tribunal has considered Rs.3,750/- towards loss of dependency and by applying multiplier of 17 and 12 months, the Tribunal has calculated the compensation Rs.7,65,000/- under the head of dependency and after deducting 10% liability of Rs.76,500/- towards contributory negligence, the Tribunal thought it fit to award the amount of Rs.6,88,500/- under the head of loss of dependency. Thereafter, the Tribunal has considered Rs.97,000/- under the head of conventional, Rs.2,000/- towards the vehicle expenses and Rs.10,000/- towards funeral expenses. Therefore, total Rs.7,98,200/- has been awarded by the Tribunal with 9% interest while drawing the award in the year 2005.

10 I have considered the calculation and reasons given by the learned Tribunal and I find no illegality or infirmity in the calculation, more particularly, while considering the ratio of the judgement rendered by the Hon'ble Apex Court in the case of Sarla Verma vs. Delhi Transport

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Corporation reported in (2009) 6 SCC 121 and another judgement of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Shethi reported in (2017) 16 SCC 680. On the contrary, the Tribunal has calculated very conservably while arriving at the figure of loss of dependency.

11 It is necessary 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 applicants. Therefore, the Hon'ble Apex Court has also observed in many judgements that the Court should not adopt hyper- technical approach while awarding the compensation to the victim of the motor accident or the dependents of the motor accident cases and therefore, I am not convinced with any of the contentions raised by the appellants and the impugned judgement and award passed by the Tribunal is well reasoned and I find no illegality or impropriety in it.

12 In view of the provisions of the Motor Vehicles Act, the award, which is passed by the Tribunal, otherwise found very reasonable and just. Therefore, the present First Appeal preferred by the insurance company deserves to be dismissed and is hereby dismissed, with no order as to costs.

13     In view of the above, it is directed that, the amount which is lying





      C/FA/653/2006                              JUDGMENT DATED: 18/11/2021

with the Tribunal or in Fixed Deposit Receipts shall be paid to the claimants after proper verification and after following due procedure.

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

(SANDEEP N. BHATT,J) CHANDRESH