Gujarat High Court
The Oriental Insurance Co Ltd vs Jaysinh Bhagwansinh Tanvar on 22 September, 2021
Bench: A.G.Uraizee
C/FA/2557/2021 ORDER DATED: 22/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2557 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 2557 of 2021
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THE ORIENTAL INSURANCE CO LTD
Versus
JAYSINH BHAGWANSINH TANVAR
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 3,4,5,6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 22/09/2021
ORAL ORDER
1. Heard Mr. Maulik J. Shelat, learned advocate for the
appellant and Mr. Nishit A. Bhalodi, learned advocate for
the respondent Nos. 1 and 2. Presence of other
respondents is not necessary for the purpose of disposal
of present appeal.
2. The appeal is taken up for final disposal with the
consent of learned advocate for the appellant and learned
advocate for the respondents at the admission stage, as
the issue involved moves in a narrow compass.
3. The present appeal under Section 173 of the Motor
Vehicles Act 1988 (MV Act for short) is preferred by the
appellant Insurance Company to assail the impugned
judgment and award dated 28.8.2019 by Special Judge
C/FA/2557/2021 ORDER DATED: 22/09/2021
(CBI) and Motor Accident Claims Tribunal Aux (Court
No.15), Ahmedabad so far as it relates to award of
Rs.1,00,000/- under the head of loss of love and affection.
4. Mr. Shelat, learned advocate for the appellant fairly
submits that the appellant insurance company does not
challenge the compensation awarded under various head
except Rs.1,00,000/- awarded under the head of lost of
love and affection. He submits that in view of the decision
of the Supreme Court in case of National Insurance
Company Ltd. vs. Pranay Shethi and other reported
in (2017) 16 SCC 680, the conventional heads under
which compensation are available are recognized as loss
of estate, loss of consortium and funeral expenses. He,
submits that the Tribunal has committed error in
awarding compensation under the head of loss of love and
affection. He, therefore, urges that the impugned award
may be modified to the extent of reducing the
compensation by Rs.1,00,000/- which is awarded under
the head of loss of love and affection.
5. Mr. Bhalodi, learned advocate fairly concedes that
the compensation awarded under the head of loss of love
and affection is not admissible in view of the decision in
of the Hon'ble Supreme Court in case of Pranay Shethi
(supra). He submits that appropriate order may be
passed in this appeal for reducing the compensation to
the extent of compensation of love and affection. He,
C/FA/2557/2021 ORDER DATED: 22/09/2021
further submits that Insurance Company may be directed
to deposit remaining compensation in the Tribunal within
reasonable time.
6. The Supreme Court, in case of Pranay Shethi
(supra), has observed as under:-
"52. As far as the conventional heads are
concerned, we find it difficult to agree with the
view expressed in Rajesh. It has granted Rs.
25,000/- towards funeral expenses, Rs.
1,00,000/- loss of consortium and Rs. 1,00,000/-
towards loss of care and guidance for minor
children. The head relating to loss of care and
minor children does not exist. Though Rajesh
refers to Santosh Devi, it does not seem to
follow the same. The conventional
and traditional heads, needless to say, cannot
be determined on percentage basis because
that would not be an acceptable criterion.
Unlike determination of income, the said heads
have to be quantified. Any quantification must
have a reasonable foundation. There can be no
dispute over the fact that price index, fall in
bank interest, escalation of rates in many a
field have to be noticed. The court cannot
remain oblivious to the same. There has been a
thumb rule in this aspect. Otherwise, there will
be extreme difficulty in determination of the
C/FA/2557/2021 ORDER DATED: 22/09/2021
same and unless the thumb rule is applied,
there will be immense variation lacking any
kind of consistency as a consequence of which,
the orders passed by the tribunals and courts
are likely to be unguided. Therefore, we think it
seemly to fix reasonable sums. It seems to us
that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively. The
principle of revisiting the said heads is an
acceptable principle. But the revisit should not
be fact-centric or quantum-centric. We think
that it would be condign that the amount that
we have quantified should be enhanced on
percentage basis in every three years and the
enhancement should be at the rate of 10% in a
span of three years. We are disposed to hold so
because that will bring in consistency in
respect of those heads."
7. In view of aforesaid dictum of the Supreme Court, it
is eminently clear that the Tribunal has fallen in error in
awarding Rs.1,00,000/- under the heard of loss of love
and affection which does not exist to the claimants.
8. In view thereof, the impugned judgment and award
of the Tribunal is required to be modified to that limited
extent.
C/FA/2557/2021 ORDER DATED: 22/09/2021
9. For the foregoing reasons, present appeal succeeds
in part. The impugned judgment and award dated
28.8.2019 by Special Judge (C.B.I.) and Motor Accident
Claims Tribunal Aux (Court No.15), Ahmedabad is
modified and the claimants are held entitle to receive a
sum of Rs.11,07,450/- instead of Rs.12,07,450/- with 9%
interest per annum and proportionate cost.
10. The insurance company is directed to deposit the
amount of compensation in terms of this order in the
Tribunal within six weeks after receipt of the certified
copy of this order.
11. The appeal stands disposed of accordingly.
In view of order passed in the main appeal, civil
application does not survive and the same stands
disposed of accordingly.
(A.G.URAIZEE, J)
SURESH SOLANKI
