The United India Insurance ... vs Jamkuben Veljibhai Vagadia L.H. ...
2022 Latest Caselaw 10087 Guj

     C/FA/3650/2018                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3650 of 2018

                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                      In R/FIRST APPEAL NO. 3650 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                   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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           THE UNITED INDIA INSURANCE COMPANY LTD
                             Versus
      JAMKUBEN VELJIBHAI VAGADIA L.H. OF DECEASED VAGADIA
                VELJIBHAI BHURABHAI & 6 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR KAMLESH B MEHTA(2381) for the Defendant(s) No. 4,5
MR TANMAY B KARIA(6833) for the Defendant(s) No. 7
MR. RAHIL P JAIN(7305) for the Defendant(s) No. 1,2,3
NOTICE SERVED for the Defendant(s) No. 6
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 14/12/2022

                             ORAL JUDGMENT

C/FA/3650/2018 JUDGMENT DATED: 14/12/2022

1. The Insurance Company is in appeal against the award of the Motor Accident Claims Tribunal (Aux), Mahisagar in M.A.C.P. No.1994 of 2017 (old M.A.C.P. No.32 of 2012).

2. It is a case where the claimant, who was serving as a Driver at Kadana Division-I, Divda Colony at Panchmahals was, therefore, a government servant and as a part time of his duty while he was driving official jeep has sustained an accident on account of rash and negligent driving by the original opponent no.1-driver of the tractor.

3. The reason for which the appeal is brought is that the original claimant, who sustained injuries passed away by a natural death, and thereafter, the claim was proceeded ahead by the legal heirs of the original claimant (since deceased). The only argument today advanced on behalf of the Insurance Company is an application of multiplier of 13.

3.1 It is submitted that under the head of age and multiplier, the Tribunal has proceeded to apply the multiplier of 13 by adopting parameters laid down by the Apex Court in the case of Serla Verma v. Delhi Transport Corporation, reported in 2009 ACJ 1298, wherein the age of the victim is between 46 to 50 years.

3.2 It is submitted that the age of the claimant was 50 years at the time of accident, and therefore, multiplier of 13 was applied, however, as a subsequent event, as the claimant had died on 22.08.2012, and therefore, had survived for 2 years after the actual accident in question, the application of 13

C/FA/3650/2018 JUDGMENT DATED: 14/12/2022

multiplier cannot be sustained.

3.3 Learned advocate has therefore argued that towards the loss of future income, the amount is required to be reduced.

3.4 In support of his argument, learned advocate has referred to the decision of this Court in case of Madhuben Maheshbhai Patel since Decd.Through Heir Vs. Joseph Francis Mewan and Anr. reported in 2015(2) G.L.H. 499, wherein this Court under a reference has held that the heirs will be entitled to compensation to the extent of loss to the estate.

4. Learned advocate appearing for the respondent has submitted that the amount awarded under the head of pain, shock and suffering is very much on the lower-side, as the claimant had suffered a fracture injury while on duty and that has suffered a permanent disability to the tune of 10% body as a whole. Considering the nature of injuries and the fact that the same would impediment his daily routine, the pain, shock and suffering is required to be enhanced.

5. Having considered the rival submissions made by learned advocates of the parties and having perused the documents on record, the claimant, as mentioned in the preceding paragraph was a driver in a government department, and therefore, in so far as the income of the claimant is concerned, the same is assessed of Rs.16,000/- on the basis of evidence on record with which the Court will not interfere.

C/FA/3650/2018 JUDGMENT DATED: 14/12/2022

6. It appears that while considering the application of multiplier, the Tribunal has relied upon the decision of Serla Verma (supra) and by considering the evidence on record regarding the age vide Exh.21, the age of the deceased claimant was 50 years. After considering the various evidences vide Exhs.21 & 32, the Tribunal came to the conclusion about the age of the claimant being 50 years, and therefore, applied the multiplier of 13. However, it would be pertinent mention here that the claimant expired on 22.08.2012 while the claim was pending for adjudication, and therefore, the claimant was substituted by the surviving legal heirs, who prosecuted further with the claim.

7. This Court in Madhuben Maheshbhai Patel since Decd.Through Heir (supra) has held as under:-

"10. Considering the aforesaid decision of the the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil

C/FA/1528/2009 CAV JUDGMENT Judge of this Court in the case of Jenabai Widow of Abdul Karim Musa (supra) and in the case of Amrishkumar Vinodbhai (supra); and aforesaid two decisions of the learned Single Judge of the Rajasthan High Court, we are of the opinion that maxim "actio personalis moritur cum persona" on which section 306 of the Indian Evidence Act is based cannot have an applicability in all actions even in an case of personal injuries where damages flows from the head or under the head of loss to the estate. Therefore, even after the death of the injured claimant, claim petition does not abate and right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, which would include personal expenses incurred on the treatment and other claim related to loss to the estate. Under the circumstances, the issue referred to the Division Bench is answered accordingly. Consequently, it is held that no error

C/FA/3650/2018 JUDGMENT DATED: 14/12/2022

has been committed by the learned tribunal in permitting the heirs to be brought on record of the claim petition and permitting the heirs of the injured claimant who died subsequently to proceed further with the claim petition. However, the claim petition and even appeal for enhancement would be confine to the claim for the loss to the estate as observed hereinabove.

Now, the matter will be placed before the learned Single Judge to proceed further with the appeal and to consider the claim accordingly in accordance with law and on merits and to the aforesaid extent, as observed hereinabove."

Therefore, the surviving heirs of the claimant could prosecute the claim only to the extent of loss of estate.

8. Considering the aforesaid and consensus given by the appellant, the Court deems it fit to apply the multiplier of 2 considering the fact that the claimant survived for 2 years after the date of accident and hence, the loss of future income is to be considered as 1600 X 12 X 2=38,400/-.

9. Considering the submissions made by learned advocate for the respondent in so far as the disability sustained and the nature of work with which the claimant was involved, the Court is of the view that under the head of pain, shock and suffering an amount of Rs.5000/- is on the lower side, and therefore, the Court by considering the partial permanent disability to the extent of 10% as body as a whole considered Rs.20,000/- to be proper compensation under the head of pain, shock and suffering.

C/FA/3650/2018 JUDGMENT DATED: 14/12/2022

10. To the aforesaid extent, the awarded of the Tribunal stands modified, and therefore, the respondent is now entitled to the compensation as under:-

                  Particulars                      Amount (Rs.)
 2 Years Loss of Income 19200 X 2=38400                       38,400/-
 Medical Expenses                                              5,000/-
 Actual Loss                                                  32,000/-
 Pain, Shock and Suffering                                    20,000/-
 Transportation                                                5,000/-
                                    TOTAL                   1,00,400/-

11. With aforesaid, the First Appeal along with connected Civil Application stand disposed of.

12. The Tribunal shall disburse the entire awarded amount if lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, qua the Motor Accident Claim Petitions, as noted above, to the claimants, by account payee cheque, after proper verification and after following due procedure.

12.1 From the amount deposited, excess amount shall be refunded to the Insurance Company along with proportionate cost and interest.

12.2 Record and proceedings of the appeal be sent back to the concerned Tribunal, forthwith.

Sd/-

(A.Y. KOGJE, J) GIRISH