Gujarat High Court
New India Assurance Co.Ltd vs Jayaba Jayvirsinh Jhala on 4 February, 2022
Bench: Hemant M. Prachchhak
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 14 of 2010
With
R/CROSS OBJECTION NO. 68 of 2011
In
FIRST APPEAL NO. 14 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowedNo
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial questionNo
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NEW INDIA ASSURANCE CO.LTD
Versus
JAYABA JAYVIRSINH JHALA & 6 other(s)
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 6
MR VH KANARA(1881) for the Defendant(s) No. 1,3,4
MR.MANAN BHATT(6535) for the Defendant(s) No. 6.1,6.2
RULE SERVED for the Defendant(s) No. 2,5,7
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/02/2022
Page 1 of 10
Downloaded on : Fri Feb 11 20:12:54 IST 2022
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 29.04.2009 passed by the Motor
Accident Claims Tribunal (Auxi.), Jamnagar in MACP No. 23 of
2008, the Insurance Company has preferred this appeal under
Section 173 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the 'Act').
2. It is the case of the claimants that deceased- Jayvirsinh
Gajubha Jhala was on duty as ASI in traffic branch of Jamnagar
Police near by-pass four cross road at Jamnagar at about 6:40
p.m. on 22.05.2007. It is further the case of the claimants that
while on duty, a truck bearing registration No. GJ-11-T-9703
was being driven by the driver from Lalpur Chaukari side in a
rash and negligent manner and while the deceased was on
duty of the security of the His Excellency, the Governor of the
Gujarat at the place of the accident, ran over the deceased,
because of which the deceased sustained serious injuries and
was admitted to J.J. Hospital at Jamnagar and ultimately
succumbed to death. The FIR was lodged with 'B' Division
Police Station, Jamnagar being CR-I No. 87 of 2007 and the
present claimants had filed the claim petition under Section
166 of the Motor Vehicles Act and claimed compensation of Rs.
25 lakh. It was the case of the deceased that the deceased was
aged about 47 years and was working in the police department
and was earning Rs. 10,000/- in aggregate by way of salary as
well as agriculture income of Rs. 82,000 -90,000/- per year and
one of the claimant - wife of the deceased was examined at
Ext 53 and also relied upon one Mr. Yasinmohammed Hussain
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
Bhatti, the junior clerk of the DSP office, Jamnagar at Exh. 56
and also relied upon the documentary evidence such as page
Nos. 4 & 5 of the impugned judgment and award:
(I) FIR Exh. 46
(ii) Statement of the Police (witness) Exh. 34 to 42
(iii) Panchnama Exh. 47
(iv) Charge-sheet Exh. 48
(v) Form No. 54 Exh. 43
(vi) Paper relating to Police Bandobast Exh. 44 & 45
(vii) RC book of the truck Exh. 51
(viii) Insurance receipt of the truck Exh. 52
(ix) Inquest Panchnama Exh. 49
(x) Post-mortem report Exh. 50
(xi) birth certificate of the deceased Exh. 28
(xii) last salary slip of the deceased Exh. 29
(xiii) revenue record of the agriculture land
of the deceased Exh. 30 to 33
(xiv) document indicating and calculation
of leave pay Exh. 57
3. The Tribunal having appreciated the evidence of
Panchnama at Exh. 47, charge-sheet at Exh. 48 came to the
conclusion that the driver of the truck was solely negligent.
While computing the income of the deceased, the Tribunal
appreciated the evidence in form of pay slip at Exh. 29 and the
revenue records at Exh. 32 and 33 and came to the conclusion
that monthly income of the deceased from salary was Rs.
9,415/- and also considered Rs. 1500/- as supervisory loss of
agriculture land and thus determined the income of the
deceased at Rs. 10,915/- per month and after deducting 1/3
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
towards personal expenses and applying multiplier of 13,
awarded a sum of Rs. 11,35,056/- as compensation under the
dependency loss and also awarded Rs. 25,000/- as loss of love
and affection, Rs. 15,000/-as consortium, Rs. 3,000/- as funeral
expenses and thus awarded total compensation of Rs.
12,15,316/- with 9% interest from the date of filing of the claim
petition.
4. Being aggrieved by the same the Insurance Company has
preferred the present appeal and the original claimants have
preferred Cross Objection for enhancement of the claim.
5. Heard Mr. Ankit Patel for Ms. Lilu K. Bhaya, learned
advocate for the appellant - Insurance Company, Mr. Kaash
Thakkar for Mr. V. H. Kanara, learned advocate for the original
claimants and Manan Bhatt, learned advocate appearing for
respondents No. 6 to 6.2. Though served, none appears for the
other respondents and have also perused the original record
and proceedings.
6. Mr. Ankit Patel, learned advocate for the appellant-
Insurance Company has contended that though in the written
statement the contention was taken that the driver of the truck
did not possess a valid and effective licence, the said
contention has not been considered. According to Mr. Patel, in
absence of any valid licence, the Insurance Company is not
liable. It was next contended that while considering the
income, the Tribunal has not considered the benefit of gratuity
which was derived by the heirs, which according to Mr. Patel,
should be deducted from both the total income of the
deceased, while computing the compensation under the head
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
of loss of dependency. Mr Patel, learned advocate also
contended that the age of the deceased was 46 years at the
time of the accident. It is submitted that the Tribunal has
committed an error by applying 13 multiplier. According to Mr.
Patel, the appropriate multiplier would be that of 11 and not
13. On the aforesaid ground, Mr. Patel asserted that the appeal
deserves to be allowed and the impugned judgment and award
deserves to be modified. It is further contended that the
Tribunal has rightly considered the income based upon the pay
slip at Exh. 29 and the revenue records. Mr. Patel, learned
advocate has contended that it is an admitted position that the
agriculture land has remained with the original claimants i.e.
family members of the deceased and there is no actual loss of
income and therefore, even supervisory loss should not be
granted. Mr. Patel, learned advocate for the appellant also
contended that the Tribunal has otherwise considered the
income except the gratuity amongst the income determined
by the Tribunal, is proper and no enhancement is necessary.
According to Mr. Patel, learned advocate for the appellant the
appeal filed by the Insurance Company deserves to be allowed
and the cross objection filed by the original claimants are
meritless and deserves to be dismissed.
7. Mr. Manan Bhatt, learned advocate appearing for the
other private respondents has submitted that this Court may
pass appropriate order.
8. Mr. Kaash Thakkar, learned advocate appearing for the
original claimants has submitted that the Tribunal has not
committed any error in applying multiplier of 13. Relying upon
the judgment of the Hon'ble Apex Court in the case of Sarla
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
Verma and others Vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 1211, it is contended by the Mr.
Thakkar that the appropriate multiplier would be 13. Mr.
Thakkar also further submitted that except that fact that there
was denial that the driver of the truck had no valid license, no
evidence is adduced by the Insurance Company, nor that point
is effectively raised before the Tribunal and therefore, the
contention raised by the appellant predominantly in the appeal
that the driver did not possess valid licence deserves to be
negatived. It is further contended that any other financial
benefit by way of benefits from service received by the original
claimants cannot be deducted or be treated as part of the
compensation under Motor Vehicles Act. It is submitted that
the said contention deserves to be negatived. Referring to the
grounds raised in the cross objection, Mr. Thakkar has
contended that the Tribunal has assessed very less amount of
Rs. 1500/- as supervisory loss. It is contended that the
evidence shows that the deceased had very large chunk of
agricultural lands which were being tilled through the
contractor/ labourers and the yield used to be distributed, from
which the deceased had seizable income of Rs. 82,000/- to
90,000/- per year as averred in the claim petition. Mr. Thakkar,
learned advocate for the original claimants has contended that
the Tribunal has committed an error in deducting 1/3 toward
personal expeness as admittedly there were 5 dependents of
the deceased. Mr. Thakkar has submitted that the Tribunal has
committed an error in not granting any prospective income
and has relied upon the judgment of the Hon'ble Apex Court in
the case of National Insurance Company Limited Vs. Pranay
Sethi and others reported in (2017) 16 SCC 680. On the
aforesaid contentions, it is submitted by the Mr. Kaash Thakkar
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
that the appeal filed by the Insurance Company is meritless
and the same deserves to be dismissed, while cross objection
filed by the original claimants deserves to be allowed and the
impugned judgment and award deserves to be modified.
9. No other and further submissions, contentions or grounds
have been raised by the learned advocates appearing for the
respective parties.
10. Upon considering the evidence as a whole, it clearly
transpires that the age of the deceased was 47 years at the
time of the accident. Useful reference can be made to the
document at Exh. 28, which is a birth certificate of the
deceased which indicates that the date of birth of the
deceased was 05.11.1959 and thus on the date of the
accident, the deceased was aged 47 years old. Following
judgment of the Hon'ble Court in the case of Sarla Verma
(supra) the appropriate multiplier would be 13.
11. As far as the contention of the licence raised by the
learned advocate for the appellant - Insurance Company is
concerned, except the bare denial in the written statement at
Exh.16 more particularly in Para-3 thereof, there is nothing on
evidence to show that the driver of the truck did not posses a
valid licence and it is an admitted position that the driver of
the truck has expired, however, the appellant - Insurance
Company could have examined any other witness, more
particularly any officer from the transport department. When
such a contention is raised, the same is to be proved and in
absence of any evidence, it cannot be said that the driver of
the truck involved in the accident, did not possess valid and
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
legal licence at the time of the accident. As far as the third
contention regarding benefits of gratuity received by the
claimants is also of no avail to appellant as benefits accrued
and received from service of the deceased, cannot be
deducted from the compensation, otherwise, available under
provisions of the Motor Vehicles Act.
12. Upon re-appreciating the evidence in the form of pay slip
at Ext. 29, the same indicates the salary of the deceased as
ASI in Traffic Branch of Jamnagar City 'B' Division Police Station
for the months of April, 2007. The total salary of the deceased
was Rs. 9715/- and the professional tax of Rs. 60/- was
deducted and hence, the net income from salary would come
to Rs. 9655/- (9715-60) i.e. gross income - tax. As far as
supervisory charge is concerned upon re-appreciating the
evidence on record, it is no doubt true that the agricultural
land had remained with the claimants and the fact remains
that deceased as Karta, head of the family, used to supervise
the agricultural operations and in absence of the same, the
claimants have suffered supervisory loss. The Tribunal has
awarded only Rs. 1500/- as supervisory loss. Upon re-
appreciating the evidence on record, we deem it fit to enhance
it by some reasonable figure so as to arrive at a dictum figure
of total income of the deceased from both the sources.
Accordingly, we deem it fit to determine the income of the
deceased per month at Rs. 12,000/- (Rs. 9655/- salary income
+ Rs. 2345/- income from agriculture supervision per month).
Following ratio laid down by the Hon'ble Apex Court in the case
Pranay Sethi (supra), the claimants would be entitled to
prospective income to the extent of 30%.
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
13. As the dependents were five in number, following the
ratio laid down by the Apex Court in the case of Sarla Verma
(supra) as well as Pranay Sethi (supra), the deduction towards
personal expenses would be 1/4 and not 1/3 as calculated by
the Tribunal.
14. As observed hereinabove the appropriate multiplier would
be 13. The original claimants would be entitled compensation
under the head of loss of dependency as under:
Rs. 12,000/- (income)+ Rs. 3,000/- (30% prospective
income) = Rs. 15,000/- - Rs. 3,900/- (1/4 deduction
towards personal expenses) = 11,700x12x13 (multiplier)
= Rs. 18,25,200/- (towards of dependency).
15. Over and above the same, the claimants would also be
entitled to additional compensation of Rs. 70,000/- under
different conventional heads including funeral expenses,
consortium and loss of estate and thus the claimants would be
entitled to total compensation of Rs. 18,95,200/-. As the
Tribunal has awarded Rs. 12,15,316/-, the original claimants
would be entitled to additional compensation of Rs. 6,79,884/-.
16. In view of above, first appeal No. 14 of 2010 filed by the
Insurance Company stands dismissed.
17. The Cross Objection filed by the original claimants stands
allowed. The impugned judgment and award dated 29.04.2009
passed by the Motor Accident Claims Tribunal (Auxi.), Jamnagar
in MACP No. 23 of 2008 is modified to the aforesaid extent the
original claimants would be entitled total compensation of Rs.
C/FA/14/2010 JUDGMENT DATED: 04/02/2022
18,95,200/-. As the Tribunal has awarded Rs. 12,15,316/-, the
original claimants would be entitled to an additional
compensation of Rs. 6,79,884/-. However, such additional
amount would bear interest at the rate of 6% per annum from
the date of filing the claim petition till its realization.
18. The Insurance Company is directed to deposit the
additional amount of Rs. 6,79,884/- with 6% interest from the
date of filing of the claim petition till its realization along with
proportionate cost with the Tribunal within an outer limit of
eight weeks from the date of receipt of this judgment and
order. However, there shall be no order as to costs.
Record and Proceedings be transmitted to the concerned
Tribunal forthwith.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
Salim/
