Oriental Insurance Co Ltd vs Muktiben Jitendrabhai Patel
2021 Latest Caselaw 17903 Guj

      C/FA/3150/2010                              JUDGMENT DATED: 30/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3150 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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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 ?

==========================================================
                        ORIENTAL INSURANCE CO LTD
                                   Versus
                   MUKTIBEN JITENDRABHAI PATEL & 5 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR PARESH M DARJI(3700) for the Defendant(s) No. 1,2
MR VIKAS NAIR for MR AV NAIR(5602) for the Defendant(s) No. 3,4
RULE NOT RECD BACK(63) for the Defendant(s) No. 6
RULE SERVED(64) for the Defendant(s) No. 5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 30/11/2021
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 12.5.2010 passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad in MACP no. 1302/98, the appellant-insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Heard Mr. H.G. Mazmudar, learned advocate for the appellant, Mr. Paresh M. Darji, learned advocate for respondents no.1 and 2 and Mr. Vikas Nair, learned advocate for respondents no.3 and 4. Though served, no one appears for the respondents no.5 and 6.

3. At the outset, it deserves to be noted that the insurance Company had preferred First Appeal no.2138 of 2007, which arose out of the same accident. We find from the record that vide order dated 18.10.2010, when the present appeal was admitted, it was ordered to be heard with First Appeal no.2138 of 2007. The Coordinate Bench of this Court, wherein one of us (R.M. Chhaya, J.) was party. First Appeal no.2138 of 2007 was disposed of by a judgment and order dated 28.3.2019 read with further order which was passed in review application filed by the insurance Company being Misc.

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

Civil Application no.1 of 2019 in First Appeal no.3150 of 2010 dated 27.9.2019. In light of the judgment and order dated 28.3.2019, which has become final as far as the aspect of negligence is concerned, the observations made in the said judgment as far as the negligence is concerned would apply to the present appeal as well.

4. Mr. H.G. Mazmudar, learned advocate for the appellant very fairly contended that in view of the findings arrived at by the Coordinate Bench in First Appeal no. 2138 of 2007 as far as negligence is concerned, the same, though raised in the memo of appeal, is not pressed.

5. Following facts emerge from the record of the appeal:-

5.1 That, the accident took place on 5.6.1998 at about 05:00 p.m. It is the case of the original claimants that on that day, the deceased-Jitendrabhai Kantibhai Patel was going from Nadiad to Vidyanagar with his friend on scooter bearing registration no. GJ- 7 N-8410. When they reached near Village Gutal on National Highway no.8, a truck bearing registration no. WB-23 7195 came from the opposite direction being driven in a rash and negligent manner and dashed with the scooter,

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

as a result of which, the deceased sustained fatal injuries and during the treatment, he died in the hospital. It is the case of the original claimants that the deceased was serving as Computer Operator in G.H. Patel College of Engineering and Technology at Vidyanagar and was earning Rs.9,000/- per month. It is the case of the original claimants that the deceased was also running Computer class and earning Rs.5,000/- and was also engaged in the agricultural activities and in all, he was earning Rs.1,00,000/- and thereby, claimed compensation of Rs.50,00,000/-.

5.2 The original claimant no.1 - Muktiben was examined at Exh.27. The original claimants also relied upon plethora of documentary evidences. The Tribunal, after appreciating the evidence on record, assessed the monthly income of the deceased at Rs.21,846/- and after deducting one-third towards his personal expenses, considered an amount of Rs.14,564/- per month and an amount of Rs.1,74,758/- per year and applying multiplier of 17, awarded a sum of Rs.29,71,056/- under the head of loss of contribution to the family. The Tribunal also awarded Rs.15,000/- towards loss of consortium, Rs.2,500/- under the head of loss of estate and Rs.3,000/- towards funeral

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

expenses. The Tribunal thus awarded total compensation of Rs.29,91,556/- along with 9% interest per annum with proportionate costs and interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellant - insurance Company has preferred this appeal.

6. In light of the aforesaid observations, the only aspect which now arise in this appeal is as regards the quantum of compensation awarded by the Tribunal. It was contended by Mr. Mazmudar that on the submissions made by the original claimants, the Tribunal, while determining the income, has considered projected increase in salary by way of implementation of 6th pay commission. Relying upon the certificate at Exh.46 issued by the College, where the deceased was working as well as the calculation at Exh.36, Mr. Mazmudar contended that even if the income of the deceased is considered as per the salary certificate, as the deceased was working in the College run by the University, following the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the respondents - original claimants would be

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

entitled to 50% increase in income by way of prospective income as the deceased was 28 years old on the date of the accident. Mr. Mazmudar contended that thus, the respondents

- original claimants have been granted more compensation than just and adequate. Mr. Mazmudar therefore contended that this Court may reappreciate the evidence and determine the quantum of compensation based upon the evidence on record by allowing the appeal.

7. Mr. Paresh M. Darji, learned advocate for respondents no.1 and 2 and Mr. Vikas Nair, learned advocate for respondents no.3 and 4 (both for the original claimants) have opposed the appeal and have submitted that the Tribunal has correctly calculated the income and has awarded just compensation and hence, submitted that no interference is called for. Both the learned advocates for the original claimants submitted that the appeal, being merit-less, deserves to be dismissed.

8. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

9. Even at the cost of repetition, it is stated that the ground of negligence is though raised

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

in the appeal is not pressed as the said ground is covered by the judgment rendered by the Coordinate Bench of this Court in First Appeal no. 2138/07 dated 28.3.2019.

10. Upon perusal of the impugned judgment and award and more particularly, the observations made by the Tribunal, while determining the issue no.2 to the effect "whether the applicant is entitled to get compensation? If yes, what amount and from whom?, has considered the fact in Paragraph 19 that the deceased was working as Computer Operator in G.H. Patel College of Engineering and Technology at Vidyanagar and was earning Rs.9,000/- per month. While considering the the income certificate at Exh.46, the Tribunal has come to the conclusion that his monthly salary on the date of the accident was Rs.5,500/- and was working in the pay scale of Rs.5500-175-9000 plus Dearness Allowance and other allowances and giving effect of 40% rise of 6th pay commission, determined the income to deceased at Rs.21,846/- and after deducting one-third towards personal expenses, applied multiplier of 17 and awarded a sum of Rs.29,71,056/-. We also find that the Tribunal has awarded Rs.15,000/- towards loss of consortium, Rs.2,500/- towards loss of estate and Rs.3,000/- towards funeral expenses and

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

has thus awarded total compensation of Rs.29,91,556/-.

11. Following and considering the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), the methodology adopted by the Tribunal to determine the income is not proper. The issue how to derive the income in facts like the present case is well-settled principle. As per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), income would mean gross salary minus tax. Similarly, considering the judgment of the Hon'ble Apex Court in the case of Sarla Verma (supra) as well as Pranay Sethi (supra), the Hon'ble Supreme Court has laid down the guidelines and criteria for awarding the prospective income as well as for deduction towards personal expenses.

12. The Hon'ble Apex Court in the case of Pranay Sethi (supra) has observed thus:-

"61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

           (v)   For    determination    of              the
           multiplicand,   the    deduction              for
           personal and living expenses,                 the





   C/FA/3150/2010                                        JUDGMENT DATED: 30/11/2021

tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.

15,000/-, Rs. 40,000/- and Rs.

15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

13. Upon reappreciation of the evidence on record, both oral and documentary, this Court is therefore of the opinion that the income of the deceased should have been determined at Rs.6,750/- per month on the date of the accident based upon the salary certificate at Exh.46. As the deceased was 28 years old and was a salaried person, the respondents - original claimants would be entitled to increase in income by way of prospective income to the tune of 50%. As the dependents were four in number, following the judgment in the case of Sarla Verma (supra) and Pranay Sethi (supra), deduction would be one-fourth.

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

14. The deceased has left behind wife, one minor daughter and parents even though the said issue was not raised before the Tribunal directly, the Tribunal has committed an error in awarding a meager amount of Rs.15,000/- as loss of consortium, Rs.2,500/- towards loss of estate and Rs.3,000/- towards funeral expenses. Even further considering the ratio laid down by the Hon'ble Apex Court in the cases of Pranay Sethi (supra) as well as United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, claimant no.1 - wife of the deceased would be entitled to Rs.40,000/- as spousal consortium and so also both the parents would be entitled to filial consortium to the tune of Rs.40,000/- each.

15. Having come to the aforesaid conclusion, the respondents no.1 to 4 herein - original claimants would be entitled to compensation as under:-

Rs.6,750/- Income per month + Rs.3,375/- Prospective income (50%) = Rs.10,125/- Income per month

- Rs.2,531/- One-fourth towards personal expenses = Rs.7,594/- Income per month

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

X 17 Multiplier Rs.1,29,098/- Yearly income X 12 Yearly = Rs.15,49,176/- Loss of dependency benefit + Rs.15,000/- Loss of estate + Rs.1,60,000/- Loss of consortium + Rs.15,000/- Funeral expenses = Rs.17,39,176/- Total compensation

16. Thus, the respondents no.1 to 4 - original claimants would be entitled to total compensation of Rs.17,39,176/-. Hence, the respondents no.1 to 4 - original claimants would be entitled to total compensation of Rs.17,39,176/- with 9% interest per annum and costs from the date of filing of the claim petition till its realization. As the Tribunal has awarded compensation of Rs.29,91,556/-, the appellant - insurance Company would be entitled to refund of Rs.12,52,380/- with 9% interest per annum and costs from the date of filing of the claim petition till its realization. The additional amount shall be refunded with interest as provided in this judgment within a period of eight weeks from the date of receipt of this judgment and order. Rest of the impugned judgment and award including the disbursement part remains unaltered.

C/FA/3150/2010 JUDGMENT DATED: 30/11/2021

17. Accordingly, the appeal is partly allowed to the aforesaid extent. The impugned judgment and award stands modified to the aforesaid extent. However, there shall be no order as to costs in this appeal. Registry is directed to send the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) Maulik