United India Insurance Co Ltd vs Dharmisthaben Widow Of ...
2021 Latest Caselaw 16209 Guj

     C/FA/4766/2019                          JUDGMENT DATED: 14/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 4766 of 2019
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                In R/FIRST APPEAL NO. 4766 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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                UNITED INDIA INSURANCE CO LTD
                            Versus
      DHARMISTHABEN WIDOW OF MITHUNBHAI ZINABHAI VASAVA
==========================================================
Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4
NOTICE UNSERVED(8) for the Defendant(s) No. 5,6
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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/4766/2019 JUDGMENT DATED: 14/10/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 24.12.2018 passed by the Motor Accident Claims Tribunal (Aux), Rajpipla, District Narmada in MACP No. 214/16, the appellant- insurance company has preferred this appeal.

2. Heard Mr. V.C. Thomas, learned advocate for the appellant and Mr. Nishit Bhalodi, learned advocate for the respondents-original claimants. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for its final disposal forthwith.

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

3.1 That on 01.07.2016, at about 11.20 AM, when the deceased Mithunbhai Zinabhai Vasava was going on his motorcycle bearing registration no. GJ-22-F-1962 and when he reached Dediyapada crossing, one truck bearing registration no. TN-52/B-6014 came from the other side being driven in rash and negligent manner and dashed with the motorcycle driven by Mithunbhai because of which he sustained serious injuries and died on the spot. An FIR was lodged with the jurisdictional police station. It was the case of the respondents-original claimants that the deceased was 33 years old on the date of the accident and was working as Police Constable in SRP Group at Roopnagar Valia. It was the case of the original claimants that the monthly salary of the deceased was Rs. 32,000/-. The claimants therefore preferred the

C/FA/4766/2019 JUDGMENT DATED: 14/10/2021

present claim petition claiming compensation of Rs. 1,00,00,000/-. One of the claimants was examined at exhibit 24 and the claimants also relied upon documentary evidence such as FIR, panchnama of the scene of the accident, insurance policy, salary slip, bio data of the deceased.

3.2 It was the case of the original claimants that the deceased was 32 years 6 months and 7 days old on the date of the accident. The Tribunal appreciated the evidence on record and considering the salary slip of the month of June 2016, determined the monthly income of the deceased by giving 50% future prospective income at Rs.18,855/- p.m. and by applying multiplier of 16, awarded a sum of Rs. 40,72,680.96 as compensation under the head of loss of dependency. Over and above the same, the Tribunal also awarded a sum of Rs. 45,000/- as compensation under different conventional heads including funeral expenses. After considering the panchnama and the FIR on record, the Tribunal came to the conclusion that the driver of the truck was found solely negligent. After appreciating the evidence on record, ultimately, the Tribunal partly allowed the claim petition and awarded a sum of Rs. 41,17,680/- with 9% interest from the date of the filing of the claim petition till its realisation. Being aggrieved by the same, the present appeal is filed.

4. Mr. Thomas, learned advocate appearing for the appellant, relying upon the rough map, copy of which was also produced for perusal of this Court,

C/FA/4766/2019 JUDGMENT DATED: 14/10/2021

contended that the Tribunal has committed an error in coming to the conclusion that the driver of the truck was 100% negligent. Relying upon the rough map, it was contended by Mr. Thomas that the deceased was taking a turn on the main road and therefore should have been careful while taking the turn. It was further contended by Mr. Thomas that because of the contributory negligence on the part of the deceased, the motorbike dashed with the middle portion of the moving truck and therefore, it was contended that the deceased was equally negligent. It was contended by Mr. Thomas that the Tribunal has thus committed an error in coming to the conclusion that the driver of the truck was solely negligent.

5. Mr. Thomas also contended that the Tribunal has also committed an error in not deducting income tax to the tune of 10% and therefore, the income of the deceased even after considering 50% prospective income would be less than what is calculated by the Tribunal. On these counts, it was contended by the learned counsel appearing for the appellant that the impugned judgment and award deserves to be modified.

6. Per contra, Mr. Nishit Bhalodi, learned advocate appearing for the respondents-original claimants has opposed this appeal and supported the findings arrived at by the Tribunal. Mr. Bhalodi contended that the Tribunal has correctly appreciated the manner in which the accident has taken place and has rightly come to the conclusion that the driver of the truck was solely responsible and negligent for the

C/FA/4766/2019 JUDGMENT DATED: 14/10/2021

accident. Mr. Bhalodi, learned advocate further contended that on the contrary, the Tribunal has awarded lesser amount as compensation under different conventional heads and submitted that even though the Tribunal has relied upon the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, while considering the income, has awarded lesser amount of compensation under different conventional head and hence, it should be enhanced from Rs. 45,000/- to Rs.75,000/- as per the ratio laid down by the Apex Court in the case of Pranay Sethi (supra). Mr. Bhalodi, learned advocate therefore contended that the appeal being meritless, deserves to be dismissed.

7. No other or further submissions have been made by the learned advocates appearing for the respective parties.

8. Considering the aspect of negligence as contended by the learned counsel for the appellant, it would be appropriate to note that the truck involved in the accident was a huge vehicle with 10 tyres. Upon re-appreciating the evidence on record and more particularly the FIR and panchnama of the place of accident and even considering the sketch/rough map, relied upon by the learned counsel for the appellant, the motorcycle dashed with the middle portion of the truck being a long vehicle. It is a matter of fact that the truck was being driven not exactly on the side of the road, but almost

C/FA/4766/2019 JUDGMENT DATED: 14/10/2021

middle of the road and while passing through the cross roads, the driver of the such a heavy vehicle should be overcautious and careful and should have maintained appropriate speed. The evidence on record shows that the impact of the accident was such that the deceased died on the spot and upon re- appreciating the evidence on record and considering the manner in which the accident has taken place, we do not find that the Tribunal has committed any error in coming to the conclusion that the driver of the truck was solely negligent.

9. As far as other contention of deduction of income tax is concerned, it deserves to be noted that the Tribunal has awarded lesser amount under different conventional heads. Following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the original claimants would be entitled to more amount than what is awarded. Upon re-appreciation of the evidence on record and considering the amount of loss of consortium being awarded, the respondents-original claimants would have been entitled to further compensation.

10. Upon re-appreciation of the evidence as a whole, this Court is of the opinion that the Tribunal has awarded just compensation and no interference is called for in exercise of the appellate jurisdiction of this Court. The appeal fails and is hereby dismissed. However, there shall be no order as to costs.

C/FA/4766/2019 JUDGMENT DATED: 14/10/2021

Civil Application for stay also stands disposed of accordingly.

(ARAVIND KUMAR,CJ)

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