Gujarat High Court
Legal Heirs Of Deceased Natvarlal ... vs Hamirbhai Bhimshibhai on 29 October, 2021
Bench: Mauna M. Bhatt
C/FA/1440/2020 JUDGMENT DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1440 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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LEGAL HEIRS OF DECEASED NATVARLAL MOHANLAL KACHHELA
Versus
HAMIRBHAI BHIMSHIBHAI
==================================================================
Appearance:
MR JENIL M SHAH(7840) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 2
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 29/10/2021
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. This is a claimants' appeal for enhancement of compensation not
being satisfied with the quantum of compensation awarded by the Motor
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Accident Claims Tribunal (Auxi.) at Dhoraji in Motor Accident Claim
Petition No.410 of 2012 dated 11.05.2018 whereunder claim petition filed
by the appellants came to be allowed in part and compensation of
Rs.7,19,000/- has been awarded with interest @ 9% per annum from the
date of filing of the claim petition till date realisation. The claimant has
been held to be responsible for the accident to the extent of 10% by
contributing his negligence and, as such, 10% has been ordered to be
deducted from out of the total compensation awarded by the Tribunal.
Hence this appeal.
2. Brief background:
3. Deceased Natvarlal Mohanlal Kachhela was driving his
motorcycle on 04.11.2009 and when he came near Village Kadlal on
Dhrafa to Jam-Jodhpur Road, driver of the motorcycle bearing
Registration No.GJ-03-KK-2807 from the opposite side in a rash and
negligent manner and dashed against the motorcycle driven by the
deceased and, as such, it resulted in deceased falling down and sustaining
injuries. As a result of said injuries, he expired on 02.12.2009 and
treatment extended did not yield any fruitful result. Hence, wife, parents
and children of the deceased filed a claim petition under Section 166 of
the Motor Vehicles Act, 1961 claiming compensation of Rs.30,00,000/-.
Tribunal, as noticed hereinabove, has awarded compensation of
C/FA/1440/2020 JUDGMENT DATED: 29/10/2021
Rs.7,19,000/- under the following heads:
Sr. No. Descriptions Amount
1 Loss of dependency 4,68,000/-
2 Medical Expenses 1,41,000/-
3 Loss of Estate 15,000/-
4 Love and Affection 20,000/-
5 Consortium 40,000/-
6 Pain, Shock and Suffering 10,000/-
7 Transportation, Attendant and Special Diet 10,000/-
8 Funeral expenses 15,000/-
TOTAL AMOUNT 7,19,000/-
4. On account of the purported negligence attributed to the deceased,
10% of the amount has been ordered to be deducted from the total
compensation awarded.
5. We have heard Mr. Jenil M. Shah, learned counsel appearing for
the appellants and Mr. Chirayu A. Mehta, learned counsel appearing for
respondent No.3.
6. Since the insurer has not disputed the issuance of policy to the
offending vehicle and award having been satisfied, question of issuing
notice to respondent Nos.1 and 2 does not arise and it stands dispensed
with. Record & Proceedings of the Tribunal having been secured, this
appeal is being disposed of keeping in mind that claimants are the widow
and children of the deceased and the aged parents.
C/FA/1440/2020 JUDGMENT DATED: 29/10/2021
7. It is the contention of the learned counsel appearing for the
appellants that Tribunal committed a serious error in awarding abysmally
less compensation without considering the material evidence that was
available on record and he would draw the attention of this Court to the
award whereunder Tribunal has considered the income of the deceased at
Rs.3,000/- per month to contend that said finding is without any basis
and, as such, he prays for enhancement of compensation under all heads.
8. Per contra, Mr. Chirayu Mehta, learned counsel appearing for the
insurer has vehemently contended that what has been awarded by the
Tribunal itself is excessive side and, as such, award of the Tribunal would
not call for interference. Hence, he has prayed for dismissal of the
appeal. In reply, Mr. Jenil Shah, learned counsel would contend that
Tribunal committed a serious error in arriving at a conclusion that there
was contributory negligence on the part of the claimant without
considering the fact that appellants' records clearly indicated that driver
of the opposite vehicle had been charged for rash and negligence driving
and, as such, Tribunal could not have held that there was any negligence
on the part of the deceased and countering his argument, learned counsel
for the insurer would support the findings of the Tribunal recorded in this
regard to contend that the accident had occurred in a curve and same
being head on collision, some negligence has to be attributed to the
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deceased and Tribunal has rightly held that there is negligence to the
extent of 10% on the deceased and it does not call for any interference.
9. Having heard learned counsels appearing for the parties and on
perusal of the judgment and award passed by the Tribunal as well as
Record & Proceedings of the Tribunal, we are of the considered view that
following points would raise for our consideration:
(i) Whether Tribunal was correct and justified in arriving
at a conclusion that there was negligence to the extent of
10% contributed by the deceased for causing the accident
and as such the claimants should not be entitled to the
compensation to the extent of 10% of the award?
(ii) Whether compensation awarded by the Tribunal in a
sum of Rs.7,19,000/- is just and reasonable compensation?
and, if not, to what extent it requires to be enhanced and
under what heads, claimants would be entitled for
enhancement?
(iii) What order?
10. The facts relating to the road traffic accident that occurred on
04.11.2009, as well as issuance of policy to the offending vehicle and
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same being in force as on date of the accident not being in dispute and
these facts having been dealt in extenso by the Tribunal is not being
discussed in this order as it would be repetition of facts.
RE: POINT No.(i)
Tribunal having noticed that charge-sheet had been filed against the
driver of the motorcycle bearing Registration No.GJW-25-B-8901
namely, Hamirbhai Bhimshibhai, yet recorded a finding that there was
some negligence on the part of the deceased. In fact, insurer has not even
examined the driver of the motorcycle bearing Registration No.GJW-25-
B-8901 as he would have the best person to narrate the mode and manner
in which the accident had occurred. Though Tribunal noticed in
paragraph 10 of its award that an adverse inference is to be drawn against
the driver and presumption has to be drawn against the driver of the
offending vehicle by referring to the judgment of the Hon'ble Apex
Court, yet in a perfunctory and in a casual manner it has been held that
deceased have been bit negligent. In the words of the Tribunal, the
finding so recorded reads thus:
"[10] Considering all the materials placed on record ... ...
... do not survive any longer. Further both the vehicles are
of same kind. ... ... ... and caution while driving his
motorcycle. ..."
C/FA/1440/2020 JUDGMENT DATED: 29/10/2021
The Tribunal having recorded finding that an adverse inference has to be
drawn against the driver of the vehicle on surmises and conjectures could
not have held that there might be bit of negligence on the part of the
deceased. As to what caution deceased ought to have taken is not
forthcoming from the above recorded finding, except saying that
deceased himself was also negligent to some extent and as to what was
the negligence of the deceased is not indicated in the order. Thus, any
finding recorded without assigning reasons would not be susceptible to
acceptance. As such, finding recorded by the Tribunal to the effect that
deceased had contributed to the accident to the extent of 10% cannot be
sustained and the said finding requires to be set aside and accordingly we
set aside the said finding and hold point No.(i) in the negative and in
favour of the claimants and against the insured as well as insurer -
appellant.
RE: POINT No.(ii)
Tribunal, while assessing or computing the compensation payable to the
claimants towards loss of dependency, has construed the income of the
deceased at Rs.3,000/- per month. The finding recorded by the Tribunal
in this regard can be traced to paragraph 13 of the award. In order to
substantiate the claim put forward in the petition seeking for
compensation, claimants viz. widow as well as other claimants had
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contended that deceased was doing business under the name and style of
'Jalaram Pav Bhaji' and earning about Rs.18,000/- to Rs.20,000/- per
month. In order to substantiate this claim, the certificate issued by the
jurisdictional gram panchayat had been produced and it was marked as
Exh.44. The insurer though disputed the contents of the said certificate,
yet did not tender any evidence to disprove its contents and no witnesses
were examined on behalf of the insurance company, no records were
summoned from the gram panchayat. No rebuttal evidence was tendered
by the insurance company to dispute the contents of Exh.44. In the
absence thereof, the contents of Exh.44 cannot be disbelieved and
Tribunal has not even considered the said material evidence available on
record and this is the first stage of the error committed by the Tribunal. It
is an undisputed fact that at the relevant point of time the deceased and
claimant No.1 who had four children out of their wedding were all
studying in schools and to demonstrate that the fees was paid by the
deceased they had produced Exhs.48 to 54 namely the bills issued by the
Unique School of Science, Opposite to LIC Office, Station Plot, Dhoraji,
which would indicate that said receipts were issued by the school for
having collected fees for quarterly or in other words for four quarters
annual fee was Rs.10,000/- per month. Even this material which are
available on record has been completely ignored by the Tribunal. No
reasons are assigned as to why it has to be discarded. The contention of
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the claimants was that deceased was carrying on the business of Pav
Bhaji through a push cart or in other words, he was doing business of
selling Pav Bhaji in a hawking zone. Mr. Chirayu Mehta, learned counsel
appearing for the insurer has raised an intriguing plea namely he had
contended that entire payment made to Moti Panoli who was supplier of
raw material as on 2011 was 11903 and, as such, the income of the
deceased could not have been Rs.18,000/- to Rs.20,000/- per month and
even otherwise, same being taxable income, there was a duty cast under
the Income Tax Act, 1961 and deceased ought to have filed income tax
returns. Said argument is required to be considered for the purposes of
outright rejection and accordingly we do so for the reasons more than
one. Firstly, the income of the deceased cannot be based on the
population as contended. The business of the deceased being eatery and
taking note of all the attendant circumstances viz. that he had four
children who were being paid school fees from the income of the
deceased and the fact that deceased was depositing a sum of Rs.1,000/-
per month in his own name and also in the name of his wife towards
recurring deposit and he had taken out a fixed deposit for Rs.3,00,000/-
and the passbook of the post office as well as FD receipts which were
marked as Exhx.67 to 69 as well as LIC receipts Exhs.81 to 86 would
clearly indicate that income of the deceased could not have been
anything less than Rs.20,000/-. As such, the contention raised by the
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learned counsel appearing for the insurer cannot be accepted and it stands
rejected. Secondly, the mandate of the Income Tax Act, 1961 for filing
income tax returns would be based on after deducting the expenses and if
such income were to fall within the purview of taxable income,
necessarily such person would be required to file the return of the
income. Mere non-filing of the return of income, even assuming that
deceased had a taxable income or income of the deceased was not
required to be taxed would not deprive the claimants of their legitimate
and just compensation to which they would be entitled to. If there is any
infraction of any law by the deceased, it was open for the said authorities
to have taken action against the deceased and, as such, insurer cannot take
umbrage on the ground that deceased has not filed income tax returns to
stave off its liability.
It is no doubt true that purchase bills at Exhs.87 to 94 which were
produced by the claimant to contend that deceased for the purposes of
running Pav Bhaji business was purchasing vegetable and raw material,
are of the same number, yet the fact of deceased carrying on the business
in Pav Bhaji not being in serious dispute or same being proved by
producing the certificate issued by Panchayat at Exh.44, this Court can
also hold that notwithstanding the said bills Exhs.87 to 94 the deceased
was carrying on the business of Pav Bhaji in a push cart and taking into
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consideration all the attendant circumstances, it can be safely concluded
that income of the deceased was at least Rs.18,000/- per month. We say
so for the reaon, that deceased was having wife, four children and two
parents to take care of. Merely because the population of Moti Panoli
was only 11,000, no inference can be drawn that the business of the
deceased could not have fetched his income of Rs.18,000/- per month
and, as such, the contention raised by the insurer, as observed
hereinabove, requires to be outrightly rejected and accordingly stands
rejected. Yet other factor which cannot go unnoticed is that deceased was
also paying premium towards life insurance and the receipts issued by
LIC of India was produced at Exhs.81 to 87. Deceased had four children,
wife and two aged parents whom he was taking care of and entire family
was dependent on the income earned by deceased. It cannot be gainsaid
by insured that his income was paultry sum of Rs.3,000/-, particularly
when school fees of each child was itself around Rs.800 per quarter. All
the claimants were entirely dependent on the income of the deceased. On
account of fatal accident that occurred on 04.11.2009, whole family has
lost the sole bread winner and have been virtually left in the lurch. As
such, it would be solemn duty of this Court to award just and reasonable
compensation and Tribunal even after noticed the documentary evidence
available before it has completely ignored or has not even considered this
material evidence which has resulted in abysmally and paultry
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compensation being awarded which requires to be interfered with by this
Court by re-determining the compensation under all heads. Hence, we
proceed to re-determine the compensation.
Insofar as award of compensation towards loss of dependency is
concerned, it would emerge from undisputed facts that deceased was aged
about 48 years and there were more than 7 persons who were dependent
on his income for their livelihood. As such, multiplier which requires to
be adopted was 13 and same has been rightly adopted by the Tribunal
also. Insofar as deduction towards living expenses is concerned, Tribunal
has rightly held that 1/5th is to be deducted and accordingly it requires to
be deducted in view of dicta laid down by the Hon'ble Apex Court in
case of Sarla Verma vs. Delhi Transport Corporation, reported in
(2009) 6 SCC 121. We have already held that the income of the
deceased is to be construed at Rs.18,000/- and 1/5th requires to be
deducted towards living expenses. On account of bread winner of the
family having been lost by the claimants and taking into consideration
that deceased was an able bodied person carrying on the business of Pav
Bhaji, the loss of future prospects as held by the Hon'ble Apex Court in
case of National Insurance Co. Ltd. vs. Pranay Sethi and others and
followed in Satendra Kaur case requires to be adopted. Hence, this
Court is of the considered view that 25% requires to be added towards the
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income of the deceased (18,000 X 25% / 100) which would be Rs.4,500/-.
Thus, in all the income of the deceased to be construed for the purposes
of determining loss of dependency would be Rs.22,500/- and after
deducting 1/5th towards living expenses the net loss of income to the
dependents per month would be Rs.18,000/-. The total loss of
dependency would be Rs.28,08,000/- (18,000 X 12 X 13).
Since deceased was treated for nearly about a month i.e. from 04.11.2009
till his death on 02.12.2009, claimants have expended money towards his
medical expenses in a sum of Rs.1,41,000/- which has been considered,
evaluated and accepted by the Tribunal which requires to be reiterated by
this Court and accordingly a sum of Rs.1,41,000/- is awarded towards
medical expenses. The widow and the aged parents having lost husband /
son would be entitled to filial consortium as well as parental consortium
@ Rs.40,000/- per person which would be Rs.1,20,000/- and accordingly
we award a sum of Rs.1,20,000/-. Two children of the deceased were
minor at the time of the deceased expiring due to fatal injuries sustained
in the road traffic accident. As such, we are of the considered view that
two minor children viz. claimant Nos.4 and 5 would also be entitled to
parental compensation of Rs.40,000/- each and accordingly sum of
Rs.80,000/- is awarded towards loss of parental compensation. A sum of
Rs.15,000/- as awarded by the Tribunal towards loss of estate is
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confirmed including compensation awarded towards transportation of the
dead body and funeral expenses in a sum of Rs.15,000/-.
During the period of hospitalisation naturally the claimants would have
stayed at Giriraj Hospital, Rajkot and they would have spent money for
boarding and lodging from the date of admission on 04.11.2009 till death
on 02.12.2009. Hence, we award a sum of Rs.50,000/- towards
transportation, food expenses including the special diet expenses for the
deceased. Thus, in substitution to what has been awarded by the Tribunal
we award the compensation as under:
Towards Loss of Dependency 28,08,000
Medical Expenses 1,41,000
Parental compensation 1,20,000
Love and affection 80,000
Loss of Estate 15,000
Funeral Expenses and Transportation of dead body 15,000
Transportation, Food, Diet etc. 50,000
Total 32,29,000
RE: POINT No.(iii)
The insurer being under contractual obligation to pay just and reasonable
compensation, in this appeal, has raised frivolous plea which cannot be
construed as a reasonable defence which is available to the insurer. For
instance contending by virtue of the population of Moti Panoli being only
11203, the deceased could not have sold Pav Bhaji and earned income of
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Rs.18,000/- is neither in the vicinity of truth nor susceptible to acceptance
as it would not appeal to logic. As such, said argument canvassed by the
learned counsel appearing for the insurer on the basis of instructions said
to have been received from Insurance Company requires to be deprecated
and accordingly it stands deprecated. Since, claimants having been
perforced to knock the doors of this Court by expending time and money
seeking for enhancement, we are of the considered view that claimants
should be suitably compensated to cover minimum cost of litigation. As
such, we are of the considered view that appeal deserves to be allowed
with costs.
11. For the reasons aforestated, we proceed to pass following
ORDER
(i) Appeal is allowed with costs.
(ii) Judgment and award dated 11.05.2018 passed by the
Motor Accident Claims Tribunal (Auxi.) at Dhoraji in Motor
Accident Claim Petition No.410 of 2012 is substituted and
total compensation of Rs.32,29,000/- is awarded with
interest @ 9% per annum from date of petition till payment
or deposit whichever is earlier excluding the period from
14.07.2017 to 06.04.2018.
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(iii) Disbursement of compensation to claimants or
deposit in fixed deposit as ordered by the Tribunal holds
good for the enhanced compensation. The insurer shall
deposit the total compensation as enhanced / raised by this
excluding the amount already deposited if any before the
Tribunal within two weeks from today.
(iii) Costs payable by Insurer to the claimants is quantified
at Rs.10,000/- and same shall be deposited by the insurer
before the Tribunal within two (2) weeks from today.
(iv) Registry is directed to re-transmit the Record &
Proceedings to the jurisdictional Tribunal forthwith.
Sd/-
(ARAVIND KUMAR,CJ)
Sd/-
(MAUNA M. BHATT,J)
Bharat
