Gujarat High Court
New India Assurance Company ... vs Ishak Jamubhai Mogal on 23 August, 2022
Bench: A.J.Desai
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.1082 of 2020
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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NEW INDIA ASSURANCE COMPANY LIMITED
Versus
ISHAK JAMUBHAI MOGAL
=========================================
Appearance :
MR VIBHUTI NANAVATI for the Appellant.
MR.HIREN M MODI for the Defendant Nos.3,4,5,6,7
RULE SERVED for the Defendant Nos.1,2
=========================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 8
Downloaded on : Thu Aug 25 20:46:02 IST 2022
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
Date : 23/08/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. New India Assurance Company Limited as appellant
has filed this appeal under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the Act') challenging the judgment
and award dated 18.2.2019 passed by Motor Accident Claims
Tribunal (Aux.) , Surat at Bardoli in Motor Accident Claim Petition
No.920 of 2015 by which the Tribunal has awarded compensation
of Rs.55,43,980/-. The appellant has challenged the award to the
extent of Rs.33,19,385/- only.
2. The brief facts are as under :-
2.1` That on 8.4.2012, one Dilipbhai Sevabhai Chaudhari
(hereinafter referred to as 'the deceased') went to Patal village and
thereafter while coming towards his home at Mandvi on his
Motorcycle bearing Registration No.GJ-05-HG-580, when he
reached at Mandvi - Kim Road near Amalsadi village, one Truck
bearing Registration No.GJ-10-X-8536 came in rash and negligent
manner and dashed with the Motorcycle. On account of the said
accident, the deceased fell down and sustained grievous injuries
and succumbed to the same.
2.2 The original claimants filed claim petition under
Section 166 of the Act claiming compensation of Rs.50 Lacs with
interest and costs. It was case of the claimants that the deceased
was driving his Motorcycle after following the traffic Rules and the
accident occasioned on account of negligence on the part of the
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
driver of the Truck.
2.3 The Tribunal after hearing the parties and upon
appreciation of evidence decided the issue as under :-
(I) In relation to negligence, the Tribunal held the driver of
the Truck bearing Registration No.GJ-10-X-8536 as sole negligent
for occurrence of the said accident.
(II) In relation to compensation, the Tribunal awarded in all
Rs.55,43,980/- as compensation under different heads as under :-
Future Loss of Income 54,73,980/-
Funeral expenses 15,000/-
Loss of Estate 15,000/-
Loss of Consortium 40,000/-
Total 55,43,980
3. The Tribunal held Insurance Company, driver and
owner of the Truck as jointly and severely liable for the payment of
compensation of Rs.55,43,980/- with 9% interest from the date of
Claim Petition till its realization.
4. Against the said judgment and award, the present
appeal is filed by the appellant - Insurance Company challenging
the award to the extent of Rs.33,19,385/-.
5. We have heard Mr. Vibhuti Nanavati, learned advocate
appearing for the appellant and Mr. Hiren Modi, learned advocate
appearing for the original claimants. As liability has not been
denied, presence of other respondents are dispensed with. We
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
have secured the Records and Proceedings from the Tribunal.
6. Appearing for the appellant, Mr. Vibhuti Nanavati
contended that the Tribunal is in error in holding the driver of the
Truck as sole negligent for occurrence of the accident. He referred
to the Panchnama Exh.24 and contended that the accident
occurred on 8.4.2012 at 12 noon on a 24 Feet broad State Highway
where it has been stated that the traces of accident has been found
in middle of the road and, therefore, the driver of the Motorcycle is
required to be held equally negligent for driving his Motorcycle in
the middle of the road. He further contended that from the
condition of the Motorcycle as narrated in the Panchnama, it is
quite evident that the same was driven with high speed and,
therefore also, the driver of the Motorcycle was equally negligent
for occurrence of the accident. He thus contended that the
Tribunal is in error in holding the driver of the Truck as sole
negligent for the accident and hence, the the judgment and award
of the Tribunal may be quashed and set aside on this ground.
6.1 In relation to quantum, learned advocate Mr. Nanavati
contended that as the gross salary of the deceased was exceeding
the exemption limit and, therefore, the Tribunal ought to have
deducted Income Tax as per the income tax slab applicable for the
relevant Assessment Year. He further contended that the father of
the deceased was an agriculturist and was earning income out of
the said activity and, therefore, the deduction to the extent of 1/4th
was wrongly made applicable and the Tribunal ought to have
deducted 1/3rd towards personal expenditure and ought to have
calculated the amount of compensation on that basis. He thus
contended to allow the appeal.
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
7. Mr. Hiren Modi, learned advocate appearing for the
original claimants has supported the judgment and award of the
Tribunal. In relation to negligence, he contended that the
Panchnama was prepared on the next day of the accident i.e.
9.4.2012 without there being the vehicle at the site of accident. He
further contended that there are no eye-witnesses who have been
cross-examined by the appellant - Insurance Company. Moreover,
the driver of the Truck had not stepped into the witness box to
refute the allegations of the original claimants and, therefore, there
being no examination of eye-witnesses to the accident, the Tribunal
has correctly held the driver of the Truck as sole negligent.
7.1 In relation to quantum, Mr. Modi has further contended
that the salary slip of the deceased shows the Basic salary at
Rs.11950/- per month. In the said Salary slip, Rs.200/- has been
deducted towards Professional Tax. There is nothing on record
which suggests that the deceased was paying Income Tax and,
therefore, income tax is not required to be deducted as contended
by learned advocate for the Insurance Company. With regard to
the submission of advocate for the Insurance Company regarding
deduction of 1/3rd towards personal expenditure in place of 1/4th
is concerned, he contended that the father of the deceased was an
agriculturist, however, there is nothing on record to suggest that
he was earning out of the said activity and that he was not
dependent upon the deceased. In absence of any proof, it is not to
be believed that the father of the deceased was earning out of
agricultural activity. He further contended that even otherwise,
there being five dependents, the Tribunal has correctly deducted
1/4th towards personal expenditure. He further contended that the
judgment and award of the Tribunal is based on proper
appreciation of evidence and there being no error, the same does
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
not call for any interference. He thus contended to dismiss the
appeal.
8. The coordinate Bench of this Court while admitting the
appeal on 14.6.2021 directed the appellant Insurance Company to
deposit the entire amount with interest and costs. In pursuance of
the said order, the appellant has deposited the entire amount with
the Tribunal.
Since the challenge in the present appeal at the
instance of Insurance Company is against the award to the extent
of Rs.33,19,385/-, the coordinate Bench vide order dated 14.6.2021
ordered to disburse an amount of Rs.22,24,595/- in favour of the
claimants and balance amount of Rs.33,19,385/- was ordered to be
invested in Fixed Deposit Receipt initially for a period of three
years. The original claimants were entitled to draw the interest on
the said amount of FDRs.
9. Having heard learned advocates appearing for the
respective parties and having re-appreciated the evidence on
record and having gone through the Records and Proceedings, we
have noticed that Panchnama Exh.24 was prepared on the next day
of accident i.e. 9.4.2012. It is not in dispute that the accident was
occasioned on 8.4.2012 at 12.00 noon having broad day light. The
condition of the Motorcycle narrated in the Panchnama shows that
the Motorcycle was damaged to the fullest. It is also not in dispute
that the driver of the Truck had not entered into the witness box
and the Insurance Company has not cross-examined any person
who had seen the accident. Therefore, in our opinion, in absence of
examination of the eye-witnesses by the appellant - Insurance
Company, coupled with the fact that the driver of the Truck had not
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
stepped into the witness box, the Tribunal has correctly held the
driver of the Truck as sole negligent for occurrence to the said
accident. In our opinion, driver of the bigger vehicle is required to
follow the traffic Rules in a more precise way when he is driving
heavy vehicle and, therefore, it is very difficult to believe the
submission of learned advocate for the appellant that the accident
had occasioned as the Motorcycle was driven by the deceased in
the middle of the road and, therefore, he was also equally negligent
for the accident.
10. In relation to compensation, we have perused Pay Slip
(Exh.30) of the deceased for the month of March 2012. We have
noticed that the basic salary of the deceased was Rs.11,950/-. In
the very Salary slip, Rs.200/- has been deducted towards
Professional Tax. Undisputedly, there is nothing on record which
suggests that the deceased was paying tax. The deceased being
Government employee, if he was liable to pay TDS and/or tax, the
same would have been deducted from his salary and it should have
been reflected in the salary slip. However, in absence of any such
document to that effect, the contention raised by learned advocate
for the appellant that the Tribunal is in error in not deducting the
amount of income tax from the gross salary of the deceased does
not merit acceptance.
11. In relation to deduction of personal expenditure, the
father of the deceased was not cross-examined by the appellants.
Further, there is nothing on record which suggests that the father
of the deceased was earning income out of the agricultural activity
and that he was not dependent on the deceased. For arriving at
the said conclusion, the Tribunal has placed reliance on the
decision of the Hon'ble Apex Court in the case of National
C/FA/1082/2020 JUDGMENT DATED: 23/08/2022
Insurance Company Limited v. Pranay Sethi and others,
reported in (2017) 16 SCC 680. Hence, in our opinion, there
being five dependents, the Tribunal is in no error in deducting
1/4th towards personal expenses of the deceased.
12. Considering the above referred evidence on record, in
our considered opinion, the Tribunal is in no error in holding the
driver of the Truck as sole negligent for the accident and also in
awarding total compensation of Rs.55,43,980/- with 9% interest to
the original claimants. Therefore, the present appeal fails and it is
accordingly dismissed with no order as to costs.
13. Registry is hereby directed to transmit back the Record
and Proceedings of the case to the concerned Tribunal forthwith.
14. As noticed herein above in paragraph 8, this Court vide
order dated 14.6.2021 has directed the balance amount after
disbursement to be placed under fixed deposits for initial period of
3 years. The original claimants were also made entitled to draw
the interest on the said amount of FDRs. Since the appeal is
dismissed, the Tribunal shall disburse the amount lying in the fixed
deposits upon maturity to the original claimants as per the
directions issued by the Tribunal through RTGS.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT,J)
SAVARIYA
