Reliance General Insurance Co. ... vs Ratanben Kabhaibhai Alias ...
2021 Latest Caselaw 16217 Guj

     C/FA/2189/2021                            JUDGMENT DATED: 14/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                      R/FIRST APPEAL NO. 2189 of 2021
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                     In R/FIRST APPEAL NO. 2189 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.G.URAIZEE                        Sd/-
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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               NO
     of the judgment ?

4    Whether this case involves a substantial question               NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                 RELIANCE GENERAL INSURANCE CO. LTD.
                               Versus
               RATANBEN KABHAIBHAI ALIAS KALIDAS BELDAR
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                           Date : 14/10/2021
                           ORAL JUDGMENT

1. This appeal has been preferred by the appellant- Insurance Company under Section 173 of the Motor Vehicle Act, 1988 to assail judgment and award dated 26.2.2021, passed by the the Motor Accident Claims Tribunal (Main), Bharuch in Motor Accident Claim Petition No.354 of 2014.

C/FA/2189/2021 JUDGMENT DATED: 14/10/2021

2. With the consent of of learned advocate for the appellant and learned advocate for the respondent Nos.1 to 3, the appeal is taken up for final disposal, as the issue involved in the appeal is of quantum of compensation only. Presence of other respondents is not necessary for the purpose of disposal of this appeal.

3. Mr.Raval, learned advocate for the appellants vehemently submits that the claimants had examined the employer of the deceased vide Exhibit 36. The employer had deposed in his evidence that the retirement of deceased was on 11.2.2015. He, therefore, submits that the deceased was aged around 59 years. As the accident had happened in the year 2014, considering his date of retirement as 60 years. He further submits that the Tribunal has committed an error in considering the age of the deceased as 49 years at the time of accident. According to his submission, the Tribunal ought to have adopted multiplier of 9 and prospective income ought to have been considered @10% instead of 13%. He, therefore, submits that the compensation awarded to the claimants needs to be recalculated accordingly.

4. Mr.Bhalodi, learned advocate for the claimants could not dispute the submission of Mr.Raval, learned advocate as regards the age of the deceased. However, he submits that considering the overall facts of the case that the deceased was riding bicycle, which was hit by the truck,

C/FA/2189/2021 JUDGMENT DATED: 14/10/2021

which was insured with the appellant-Insurance Company. The Tribunal has committed an error in attributing 10% negligence to the deceased. He, therefore, submits that while recalculating the compensation on the basis of revised age of the deceased, 100% negligence may be attributed to the driver of the offending truck. As far as the contributory negligence of 10% attributed to the deceased is concerned, it is an admitted fact that the deceased was riding bicycle. The Tribunal has recorded finding that the accident has taken place when the deceased was trying to cross road riding his bicycle when the truck had come from Bharuch side and dashed with the bicycle of the deceased. The Tribunal has also recorded a finding that the panchnama of place of accident does not reveal any break mark. However, the Tribunal has specific reasoning of exercising caution by the pedestrian or cyclist attributed 10% negligence on the part of the deceased, which cannot be sustained. The conjoint reading of the FIR and Panchnama of the place of accident, leave no room for doubt, as driver of the offending truck, who was solely responsible for happening of the accident resultantly death of the deceased. The driver of the offending vehicle was required to exercise more caution, as he was driving big vehicle and ought to have seen the movement of the deceased crossing the road on his bicycle.

5. I am, therefore, of the view that the accident had happened because of sole negligence on the part of the

C/FA/2189/2021 JUDGMENT DATED: 14/10/2021

driver of the truck. So far as the age of the deceased is concerned, there appears to be substance in the submission of Mr.Raval, learned advocate for the Insurance Company, that the claimants, who had examined the employer of the deceased in very clear term stated that the age of the retirement of the deceased was 11.2.2015. The accident had happened on 11.7.2014, therefore, the deceased maust have been aged about 59 years and not 49 years at the time of the accident. So, the Tribunal has clearly fails in properly determining age of the deceased at the time of the accident. If the age of the deceased is taken as 59 years and not as 49 years, then proper multiplier would be 9 and not 13 as adopted by the Tribunal as per the ratio propounded by the Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680. Prospective, income of person falling in the age group would be 10% and not 13%. Thus, in my considered view, the Tribunal has committed an error in adopting proper multiplier and proper percentage for considering prospective income of the deceased. Accordingly, the compensation determined by the Tribunal will have to be recalculated as under:

Compensation As Per Award Recalculation under Challenged Actual Income Rs.19,410/- Rs.19,410/-

  Prospective Income                  (30%)                       (15%)
  Deduction of amount spent (1/3)                                 (1/3)






        C/FA/2189/2021                                  JUDGMENT DATED: 14/10/2021



      by the deceased on himself
      Future Loss                     Rs.26,24,232/-             Rs.17,46,900/-

      Conventional Amount             Rs.77,000/-                Rs.77,000/-
      Total                           Rs.27,01,232/-             Rs.18,23,900/-
      Contributory Negligence         Rs.2,70,123/-
      (10%)
      Awarded amount                  Rs.24,31,109/-             Rs.18,23,900/-

6. In view of the above, the Tribunal ought to have awarded Rs.18,23,900/- as compensation to the appellants-complainants instead of Rs.24,31,109/-. Therefore, the claimants are entitled to get Rs.18,23,900/- as compensation.

7. For the forgoing reasons, the Appeal succeeds in part and the impugned judgment and award passed by the learned Tribunal is hereby modified and reduced from Rs.24,31,109/- to Rs.18,23,900/- with the running interest at the rate of 7% per annum from the date of application till realization.

8. Since the main matter is disposed of, the Civil Application does not survive. Hence the same stands disposed of as having become infructuous. Rule discharged.

Sd/-

(A.G.URAIZEE, J) ALI