National Insurance Company ... vs Chauhan Kishorbhai Hirasinh
2021 Latest Caselaw 16207 Guj

     C/FA/665/2019                                   JUDGMENT DATED: 14/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO.         665 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

and
HONOURABLE MR. JUSTICE R.M.CHHAYA

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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 ?

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                     NATIONAL INSURANCE COMPANY LIMITED
                                    Versus
                         CHAUHAN KISHORBHAI HIRASINH
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 4
MR TEJAS P SATTA(3149) for the Defendant(s) No. 5,6,7,8,9
NOTICE UNSERVED(8) for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
          KUMAR
          and
          HONOURABLE MR. JUSTICE R.M.CHHAYA

                             Date : 14/10/2021

                        ORAL JUDGMENT

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

C/FA/665/2019 JUDGMENT DATED: 14/10/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 29.06.2018 passed by the Motor Accident Claims Tribunal (Aux), Mehsana in MACP No. 421 of 2008, 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. Vibhuti Nanavati, learned advocate for the appellant, Mr. Tejas Satta, learned advocate for the respondents-original claimants and Mr. Chirayu Mehta, learned advocate for respondent no.4.

3. The following facts emerge from the record of the present appeal -

3.1 That on 12.04.2008 the deceased Ketankumar Girdharlal Patel was going to Udaipur along with one Rajubhai Angatbhai Rathod in the car bearing registration no.GJ-1-HP-4807 and when they reached on Himmatnagar-Shamlaji Road, a truck bearing registration No. RJ-9G-4476 being driven in rash and negligent manner, dashed with the car of the deceased as result of which, the deceased sustained serious injuries and died on the spot. A complaint came to be registered with the jurisdictional police station at Exhibit 60. The claimants therefore, preferred the present claim petition under Section 166 of the Act claiming compensation of Rs. 90,00,000/-.

3.2 It was the case of the respondents-original claimants that the deceased was 40 years of age on

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the date of the accident and was earning Rs.5,00,000/- p.a. by doing business of manufacturing and trading of colour and paints.

3.3 The Tribunal considered the documentary evidence such as copy of the FIR at Exh. 60, panchnama of the place of accident at exhibit 61, PM Note at exhibit 62, driving license of the deceased at exhibit 63, driving license of the driver of the truck at exhibit 64, R.C. book of the truck at exhibit 65, insurance police of the truck at exhibit 66, purchase fill of car at exhibit 67, insurance policy of the car at exhibit 68, inquest panchnama at exhibit 69, certificate issued by the police regarding accidental death at exhibit 70, income-tax return of the deceased at exhibit 71, ration card of the claimants at exhibit 72, fitness certificate of the truck at exhibit 73, national permit of the truck at exhibit 74, certificate issued by the municipal corporation to Kartik Paints at exhibit 35 and 36, certificate of the professional tax at exhibit 37, copy of the partnership deed at exhibit 38, income tax return of the original claimant no.1 from 2008-2009 to 2016- 2016 at exhibits 39 to 49, passport of the deceased at exhibit 78, school leaving certificate of the deceased at exhibit 79 and election card of the deceased at exhibit 80. One of the claimant, Ashaben Ketankumar Patel, widow of the deceased was examined at exhibit 28.

3.4 The Tribunal, after appreciating the evidence on record, deducted 10% towards income tax and assessed

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the income of the deceased at Rs.3,06,405/- p.a.. Thereafter, considering the prospective income of the deceased at 40%, deducted 1/4th amount towards personal expense and applied the multiplier of 15 and awarded a sum of Rs.48,25,875/- towards loss of dependency. Over and above, the Tribunal also awarded a sum of Rs. 70,000/- under different conventional heads, including funeral expenses and thus awarded a total compensation of Rs. 48,95,875/-. The Tribunal held contributory negligence of the driver of the truck negligent to the extent of 90% and driver of the car-the deceased to the extent of 10%. Thus, the Tribunal awarded a total sum of Rs. 44,06,288/- as compensation to the original claimants with interest at the rate of 9% p.a. from the date of filing of the claim petition till actual realisation. Being aggrieved by the same, the present appeal is preferred by the appellant insurance company.

4. Mr.Nanavati, learned advocate appearing for the appellant contended that the income which is calculated by the Tribunal does not require any alteration. However, it was contended that the Tribunal has committed an error in appreciating the prospective income. Mr. Nanavati, learned counsel appearing for the appellant contended that looking to the deposition of the claimants at exhibit nos. 28 and 32, i.e, deposition of the widow as well as father of the deceased respectively, it is evident that the business of the deceased continued even after his death and there was no decrease in the income of the claimants. Referring to the income tax

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returns at exhibit nos.39 to 49, it was contended by Mr. Nanavati, learned advocate for the appellant that as there is no loss of income, the claimants would be entitled to only supervisory loss. It was also further contended by Mr. Nanavati, learned advocate for the appellant that the Tribunal has wrongly deducted 1/4th of the amount towards personal expenses of the deceased. According to Mr. Nanavati, father was not the dependent and therefore, the deduction should have been 1/3rd. On the aforesaid grounds, Mr. Nanavati, learned advocate for the appellant contended that the impugned judgment and award deserves to be modified by allowing the appeal as prayed for.

5. Per contra, Mr. Satta, learned advocate appearing for the the original claimants contended that the prospective income should not be deducted. It was contended that after the death of the deceased, the claimants had to compulsorily enter into partnership firm and the said firm was also required to be closed and thus, there was no income out of the business. Mr. Satta contended that the Tribunal has awarded just and fair compensation and therefore, no interference is called for.

6. Examining the contention of deduction first, it deserves to be noted that the deceased Ketankumar had wife, two sons and parents aged 66 and 62 years respectively. Thus, the deceased had 5 dependents. There is nothing on record or in the evidence to show that the parents were not the dependents of the

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deceased. On the contrary, it shows that the father of the deceased was all alone in India and other brother of the deceased had already migrated to USA. Upon re-appreciation of the evidence as a whole, this Court is of the opinion that the Tribunal has rightly deducted 1/4th towards personal expenses of the deceased and not 1/3rd, as contended by Mr. Nanavati, learned counsel for the appellant.

7. Examining the second limb of argument, as put forward by the learned counsel appearing for the appellant, it would be appropriate to refer to the deposition of Ashaben, widow of the deceased and more particularly, the cross-examination of the said claimant. In the cross-examination of the said claimant, she has clearly admitted that after the accident in 2008, her father-in-law managed the business for two years and thereafter, a partnership firm was formed. She has also admitted in her cross- examination that the income at present is similar to the income, which was derived when her husband was alive. Similarly, Girdharlal Patel, father of the deceased at exhibit 32, has admitted in his cross- examination that after the death of his son Ketanbhai, there is no loss of income in the business. The income tax returns, which are on record at exhibit nos. 39 to 49 clearly show that the income has increased after the death of Ketanbhai. Upon re-appreciating the said piece of evidence at exhibit 39 to 49 and the chart which is on record prepared by the Tribunal, the same shows that the income has either remained the same or increased as

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admitted by the claimants in their cross-examination. In light of the aforesaid therefore, the claimants would not be entitled to prospective income as there is no loss of income because of the death of Shri Ketanbhai. Having come to the aforesaid conclusion and upon re-appreciating the evidence on record, the Tribunal has rightly considered the actual income at Rs. 3,06,405/- p.a. (after deducting 10% towards income tax liability). Deducting 1/3rd of the same would come to Rs. 2,04,270/- (Rs.3,06,405 - Rs.1,02,135). Thus the dependency benefit per annum would come to Rs. 2,04,270/-. Considering the age of the deceased to be 40 years, the appropriate multiplier would be 15 and thus, the total loss of dependency benefit would come to Rs. 30,64,050/- (Rs.2,04,270 X 15).

8. Even while considering the appeal filed by the insurance company, in order to arrive at just and fair compensation, it deserves to be noted that the wife was just 36 years old when she lost her husband and both sons were just in their adolescence. The parents have lost their major son who was earning bread and butter for their family. At this juncture, it would be profitable to refer to the judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Satinder Kaur alias Satwinder Kaur and Ors. reported in AIR 2020 SC 3076 wherein the Hon'ble Apex Court has considered the aspect of filial consortium to the wife, son, daughter and parents. Following the judgment of the Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram &

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Ors. reported in 2018 (18) SCC 130 and United India Insurance Co. (supra), this Court is of the opinion that the claimant no.1, i.e., Ashaben, widow of the deceased Ketanbhai would be entitled to filial compensation of Rs.40,000/-. Similarly, both the sons would be entitled to filial compensation of Rs. 40,000/- each and mother would be entitled to parental compensation of Rs. 40,000/-. Over and above the same, as awarded by the Tribunal, the claimants would be entitled to Rs.70,000/- as compensation under the different conventional heads including funeral charges.

9. Having come to the aforesaid conclusion therefore, the respondents-original claimants would be entitled to Rs.32,94,050/- (Rs.30,64,050 + Rs.40,000 + Rs.40,000+ Rs.40,000+ Rs.40,000+ Rs.70,000) as compensation under the head of loss of dependency.

10. Thus, the original claimants would be entitled to total compensation of Rs.32,94,050/-. As determined by the Tribunal, contributory negligence of the deceased was to the extent of 10% and thus, the respondents-original claimants would be entitled total compensation of Rs. 29,64,645/- (Rs.32,94,050 - Rs. 3,29,405) along with 9% interest and proportionate cost from the date of the filing of the claim petition till its actual realisation.

11. In the peculiar facts and circumstances of this case, we also provide that out of the total amount of

C/FA/665/2019 JUDGMENT DATED: 14/10/2021

compensation as awarded by this Court, the Tribunal shall disburse 50% of the total compensation to the claimants in the following manner -

1) 40% of amount be disbursed to the claimant no.1 Ashaben, wife of the deceased

2) 15% of the amount be disbursed to each children.

3) 15% of the amount be disbursed to each parent.

The Tribunal shall invest remaining 50% of the amount in the fixed deposit for a period of 3 years in nationalised bank. However, the claimants would be entitled to interest that may accrue on the fixed deposit.

12. The appeal is allowed in part. The judgment and award dated 29.06.2018 passed by Motor Accident Claims Tribunal(Aux.), Mehsana in MACP No.421 of 2008 is hereby modified and in substitution to the compensation awarded by the Tribunal, the total compensation of Rs.29,64,645/- is awarded with interest at 9% p.a. from date of petition till date of payment or deposit, whichever is earlier.

The appellant Insurance Company is directed to deposit the awarded amount with accrued interest thereon excluding the amount already deposited, if any, before the jurisdictional Tribunal within an outer limit of six weeks.

The Tribunal is hereby directed to refund the excess amount of Rs.14,41,643/- (Rs.44,06,288 - Rs.

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29,64,645) to the appellant insurer forthwith.

In view of the aforesaid disposal of the main First Appeal, Civil Application (For Stay) No.1 of 2018 stands disposed of.

13. Record and proceedings be transmitted back to the Tribunal forthwith.

(ARAVIND KUMAR,CJ)

R.M.CHHAYA,J) BIJOY B. PILLAI