Gujarat High Court
National Insurance Company ... vs Pushpavati Vasudevan Mullarat ... on 28 October, 2021
Bench: R.M.Chhaya
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4945 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 4945 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE sd/-
==============================================================
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 ?
==============================================================
NATIONAL INSURANCE COMPANY LIMITED THROUGH
AUTHORISED SIGNATORY
Versus
PUSHPAVATI VASUDEVAN MULLARAT (MULATAD)
==============================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Defendant(s) No. 2,3,4
NOTICE UNSERVED(8) for the Defendant(s) No. 5,6,7
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 1
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 25.4.20217 passed by the Motor
Accident Claims Tribunal (Auxi), Mehsana in MACP No.195
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
of 2013 as well as order dated 24.04.2018 passed in Review
Application No. 2 of 2017 whereby the Review Application
filed by the respondents claimants came to be allowed,
present appeal under Section 173 of the Motor Vehicles Act
has been filed by the appellant- Insurance Company.
2.0. The following facts emerge from the record of this
appeal:
2.1. That the accident occurred on 26.04.2013 wherein the
deceased Babubhai was driving the Maruti Car bearing
registration No. GJ-02-AP- 8690 in capacity of driver owned
by opponent no.1. It is the case of the original claimants
that the Maruti Car was being driven in moderate speed and
on the correct side of the road and when Maruti Car
reached the place of occurrence, one truck being driven in
rash and negligent manner and in excessive speed came
from behind and went into wrong side while overtaking
vehicle, as a result of which, deceased took his car on
Kachacha Road to avoid accident but to unknown reasons,
he lost the control over the car and dashed with the tree
and deceased and owner Sanjaykumar of Maruti Car
sustained serious injuries and ultimately succumbed to the
said injuries. It was the case of the original claimants that
the deceased was a skilled foreman technician and was
handling garage and was earning Rs. 2 lakhs per month and
was also working as a driver and earning Rs.6000/- plus
Rs.50/- daily as allowance and in all was earning Rs.7500/-
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
per month from the said vocation. The original claimants
preferred claim petition under Section 166 of the Act and
claimed compensation of Rs.40 lakhs. Oral as well as
documentary evidence were led by the respondent
Claimants. The Tribunal assessed the income of the
deceased based upon the income tax return relied upon by
the original claimants and after applying ratio laid down by
the Hon'ble Supreme Court in the case of Sarla Verma and
ors. vs. Delhi Transport Corporation and Anr reported in
2009 ACJ 1298, deducted 1/4th towards personal expenses
and applying 14 multiplier, awarded a sum of
Rs.17,93,190/- as compensation under the head of
dependency benefit and also awarded Rs.25,000/- as
compensation under the different conventional heads
including funeral charges and thus awarded total
compensation of Rs.18,18,190/- with 9% interest from the
date of claim petition till its realization. It deserves to be
noted that in the original award dated 25.4.2017 the
Insurance Company came to be exonerated and liability
was fixed upon opponent no.1 owner of Maruti Car. The
record indicates that the original claimants preferred Review
Application which came to be allowed and both the
opponents i.e. owner of the vehicle as well as Insurance
Company were held to be jointly and severally liable for the
said amount.
Feeling aggrieved and dissatisfied with the impugned
judgment and award as well as order passed in the Review
Application, Applicant- Insurance Company has preferred
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
the present appeal.
3.0. Heard Mr. Maulik Shelat, learned advocate for the
appellant and Mr. Yogendra Thakore, learned advocate for
the original claimants. We have perused the original record
and proceedings of the case.
4.0. Mr. Shelat, learned advocate for the appellant-
Insurance Company contended that the Tribunal has
committed an error in assessing the income of the deceased.
Mr. Shelat contended that the even if it is believed that the
deceased was a paid driver, the claimants cannot claim that
he derived income from both i.e. as a foreman in the garage
and also as a Driver. It was also contended that the risk of
the driver was only covered as per the Workman
Compensation Act and therefore, the original claimants
cannot claim benefit of having any independent income as
well as income as a paid driver or a salary person. On the
aforesaid ground, it was contended by Mr. Shelat that the
decease cannot be granted any compensation for his own
wrong as even while considering the aspect of negligence,
the Tribunal has come to the conclusion that the driver of
the Maruti Car negligent for the accident. Shri Shelat
further referring to the FIR and panchnama contended that
there is no other vehicle involved in the accident and only
because rash and negligent driving on the part of the
deceased, the accident has occurred. It was lastly
contended that even if this Court finds that the original
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
claimants are entitled to any interest thereof, the rate of
interest which has prevailing on the date of accident i.e.
26.4.2013 was 7.5% and not 9% as awarded by the
Tribunal. On the aforesaid ground, it was contended that
appeal be allowed as prayed for.
5.0. Per contra, Mr. Thakore, learned advocate for the
opponents- original claimants has opposed this appeal. Mr.
Thakore however contended that it is matter of fact and
evidence clearly reveals that the deceased was a paid driver
and was also as skilled foreman. Mr. Thakore contended
that even if the income as foreman is not believed and the
income as reflected in the income tax return is not taken
into consideration and income of the deceased is required to
be assessed based upon the fact that he was a paid driver,
at least assessed Rs.6000/- per month. Mr. Thakore
contended that the Tribunal has rightly exercised the
discretion and awarded 9% interest which does not require
any alteration. Mr. Thakore contended that the appeal
being meritless and deserve no merits and same deserves to
be dismissed.
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
7.0. We have considered the submissions made by the
learned advocates for the respective parties and also
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
perused the record and proceedings of the case. It is matter
of fact that the original claimants have relied upon the
income tax return of the deceased at Exh.23 to 26 and have
also led oral evidence to the effect that the deceased was a
paid driver of Sanjivkumar. Upon re-appreciation of the
evidence on record and as rightly pointed out by learned
advocates for the claimants even if it is considered that
deceased was a paid driver, the claimants would be entitled
to compensation as risk of the paid driver was covered
under the policy. Following the ratio laid down by the Full
Bench of this Court rendered in First Appeal No.3907 of
2017 and other appeals dated 27.08.2021, the Insurance
Company would be liable as risk stands cover. Upon re-
appreciation of the evidence on record, this Court is of the
opinion that deceased was a paid driver and therefore, the
respondents claimants are entitled to compensation as the
risk of the deceased stand cover under the policy. Having
come to the aforesaid conclusion and upon re-appreciation
of the evidence on record, the income of the deceased can
safely be determined at Rs.6000/- per month being salary
received as paid driver. The record indicates that the
deceased was 45 years as on the date of accident and hence
following ratio laid down by the Hon'ble Supreme Court in
the case of Sarla Verma (supra) as well as in the case of
National Insurance Company Limited vs. Pranay Sethi & ors
reported in (2017) 16 SCC 680, the claimants would be
entitled to increase in income by way of prospective income
to the tune of 25% and 1/4th of his income would be
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
required to be deducted towards personal expenses. We find
that the Tribunal has rightly applied 14 multiplier. Having
come to the aforesaid conclusion, the original claimants
would be entitled to compensation under the head of loss of
dependency as under:
Rs. 6000/- per month (income) + Rs.1500/- (25%
prospective income) = 7500/- - 1875/- (1/4 towards
personal income = Rs.5625/- x 12 = 67,500/- X 14
(Multiplier as the age of the deceased was 45 years) =
Rs. 9,45,000/-.
8.0. Following the ratio laid down by the Hon'ble Supreme
Court in the case of United India Insurance Company
Limited vs. Satinder Kaur @ Satwinder Kaur reported in
AIR 2020 SC 3076, the original claimants would be entitled
to total consortium including parental and filial consortium
to the extent of Rs.1,60,000/-. The respondents claimants
would also be entitled to further amount of Rs.30,000/-
towards loss of estate and funeral expenses and thus, the
respondents claimants would be entitled to compensation as
under:
Particulars Amount (Rs.)
Future loss of income 9,45,000/-
Parental consortium 1,60,000/-
Loss of estate & Funeral 30,000/-
expenses
Total Compensation 11,35,000/-
C/FA/4945/2019 JUDGMENT DATED: 28/10/2021
Considering the date of accident i.e. 26.4.2013, the
Tribunal in its discretion has awarded interest at the rate of
9%. The discretion having been rightly exercised by the
Tribunal, the contention as regard interest cannot be
accepted.
9.0. Thus, the claimants would be entitled to compensation
of Rs.11,35,000/- with 9% interest from the date of
application till its realization. As the Tribunal has awarded
an amount of Rs. 18,18,190/--, the appellant Insurance
Company shall therefore, be entitled to refund the amount
of Rs.6,83,190/- with proportionate interest and costs
thereon. The Tribunal shall refund the said amount
forthwith to the appellant Insurance Company.
10. In view of the aforesaid, therefore, the appeal is
disposed of accordingly. Rest of the judgment and award
stands unaltered. As the appeal is disposed of, connected
Civil Application also stands disposed of. Registry is directed
to transmit back the Record and Proceedings of the case to
the concerned Tribunal forthwith. However, there shall be
no order as to costs.
sd/-
(R.M.CHHAYA,J)
sd/-
(SAMIR J. DAVE,J)
KAUSHIK J. RATHOD
