Gujarat High Court
Oriental Insurance Company ... vs Solanki Sitaben W/O Kodarsinh ... on 9 February, 2022
Bench: Umesh A. Trivedi
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3319 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 3319 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
======================================
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 or any order made
thereunder ?
======================================
ORIENTAL INSURANCE COMPANY LIMITED
Versus
SOLANKI SITABEN W/O KODARSINH AMARSINH
======================================
Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
for the Defendant(s) No. 7
MR GC MAZMUDAR(1193) for the Defendant(s) No. 8
MR HG MAZMUDAR(1194) for the Defendant(s) No. 8
MR TEJAS P SATTA(3149) for the Defendant(s) No. 1,2,3,4,5,6
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Page 1 of 9
Downloaded on : Tue Feb 15 20:45:20 IST 2022
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
Date : 09/02/2022
ORAL JUDGMENT
[1.0] This Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 challenging the judgment and award
passed by the Motor Accident Claims Tribunal (Auxiliary),
Sabarkantha at Himatnagar dated 25.03.2019 in MACP No.358
of 2007 whereby respondents nos.1 to 6 - original claimants
were awarded compensation for the death of Kodarsinh
Amarsinh to the tune of Rs.8,71,955/- with interest at the rate
of 7.5% per annum from the date of application till realization.
[2.0] The brief facts, as narrated in the impugned
judgment and award, are as under:
[2.1] Respondents nos.1 to 6 - original claimants are
legal heirs of deceased - Kodarsinh Amarsinh, who claimed
compensation of Rs.10,00,000/- for the death of the deceased
by a vehicular accident, which occurred on 16.07.2005 at
about 11:30 a.m. at Kapadvanj - Aantarsumba Road at Jaloya -
Patiya in the vicinity of Kapadvanj Rural Police Station. The
original claimants have claimed compensation, as
dependents, for the death of the deceased. It is asserted in
the Claim Petition that the deceased - Kodarsinh Amarsinh was
serving as a Teacher at Ukardina Muvada in Primary School
and after school hours while he was returning to his home at
Kapadvanj on Motorcycle bearing registration No.GJ-7-AL-9055
near Jaloya Patiya one Rickshaw bearing registration No.GJ-7-Z-
3397, which was going ahead him, all of a sudden, stopped
negligently without even giving any signal in the middle of the
road, due to which the deceased dashed into the Rickshaw and
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
fell down on the road and sustained severe injuries on his
head. The injured then scummed to the injuries during
treatment on 24.07.2005. The said Claim Petition came to be
filed against the owner of the Rickshaw, Insurance Company of
Rickshaw bearing registration No.GJ-7-Z-3397 as also
Insurance Company of Motorcycle bearing registration No.GJ-7-
AL-9055. After leading evidence into the Claim Petition and
hearing the parties, the tribunal held negligent the driver cum
owner of the Rickshaw to the extent of 40% whereas 60%
negligence is assessed that of the driver of the Motorcycle i.e.
the deceased. While calculating the compensation, the
tribunal considered the assertion made by the original
claimants that the deceased was earning Rs.10,208/- per
month and they had produced the salary certificate of the
deceased vide Exh.72 for the period of June, 2005 i.e. in or
around the date of the accident i.e. 16.07.2005. Considering
his monthly earning, the learned tribunal applied the breakup
in the form of basic pay and dearness allowance, deducting the
amount of professional tax as also income tax, if any, and then
came to a conclusion that the monthly income of the deceased
was Rs.9,768/- and in view of the decision of the Supreme
Court, in the celebrated decision, in the case of National
Insurance Co. Ltd. Vs. Pranay Shethi reported in (2017)
16 SCC 680, the tribunal held that since the age of the
deceased was below 40 years, 50% of the amount is added to
the monthly income towards prospective earning and
accordingly the total would come to Rs.14,652/-. After
deducting 1/4th share, considering the number of dependents
towards personal expenses of living, the learned Judge has
arrived at loss of dependency to the tune of Rs.10,989/-,
which would come to Rs.1,31,868/- per annum. The said loss
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
of dependency value per year was then capitalized at a
multiplier of 16, which comes to Rs.21,09,888/-. The said
amount of future loss of dependency was added with
Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of
consortium and Rs.15,000/- towards funeral expenses. The
total of which would come to Rs.21,79,888/-, as calculated at
page 24 of the judgment of the tribunal. Since the deceased,
who was driving the Motorcycle, was held to be negligent to
the extent of 60% the original claimants were held to be
entitled for an amount of Rs.8,71,955/- and the appellant as
also other two opponents in the Claim Petition were held to be
jointly and severally liable. The present appellant and owner
of the vehicle, which is insured with the appellant, were held to
be jointly and severally liable for the aforesaid amount with
running interest at 7.5% per annum from the date of
application with proportionate cost, however interest from
03.04.2010 to 03.05.2014 was not allowed to be drawn by the
claimants as the Claim Petition came to be dismissed for
default on 03.04.2010 and it came to be restored on
03.05.2014. It is against that award, the present Appeal is
filed by the appellant - Insurance Company.
[3.0] Ms. Karuna Rahevar, learned advocate for the
appellant, submitted that the Rickshaw, which was stationary
on the road, did not dash the Motorcycle driver but because of
rash and negligent driving it dashed with a person standing on
the rear of Rickshaw checking smoke emission, and therefore,
the Rickshaw driver cannot be held responsible for the
accident. Because of accident with a man checking emission
of smoke on the rear side of Rickshaw, Motorcycle driver -
deceased fell down on the road and received injuries. As such,
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
there is no collision between Rickshaw and Motorcycle.
Therefore the owner and the Insurance Company cannot be
held to be responsible for any negligence and it is only and
only negligence on the part of the Motorcycle driver, and
therefore, the appellant alongwith the insured could not be
held jointly and severally liable to pay compensation, as
aforesaid.
[3.1] Alternatively, it is submitted that if at all the
argument is not accepted by the Court, then negligence to the
tune of 40% attributed to the Rickshaw driver be reduced to a
great extent so as to reduce the liability.
[3.2] She has further submitted that considering the age
of the deceased, take it to be 36 years, as per the School
Leaving Certificate, or 40 years as per the Post Mortem Report,
multiplier should have been applied keeping in mind the
judgment of the Supreme Court in the case of Smt. Sarla
Verma & Ors. Vs. Delhi Transport Corporation & Anr
reported in 2009 (6) SCC 121 to be 15, whereas the tribunal
has committed an error in applying the multiplier of 16, and
therefore, she has submitted that at least to that extent, if no
other arguments are accepted, the compensation be reduced
and the proportionate cost be reduced on behalf of the
appellant considering the liability.
[3.3] She has further submitted that the Motorcycle did
not dash with the stationary Rickshaw but it dashed with the
person who had alighted from the Rickshaw to check the
emission of smoke from the Rickshaw, and therefore, the
Rickshaw driver can be held to be responsible for the said
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
accident and not the appellant - Insurance Company.
[3.4] No other contentions are raised for the purpose of
present Appeal.
[4.0] As against that, Mr. Tejas Satta, learned advocate
for respondents nos.1 to 6 - original claimants, submitted that
contributory negligence to the extent of 40% on the part of the
Rickshaw driver is just and proper. Drawing attention of the
Court to paragraph 22 of the impugned judgment and award,
he has submitted that the tribunal has assigned good reasons
for attributing the negligence to the extent of 40% of the
Rickshaw driver and the said Rickshaw is insured by the
present appellant, and therefore, he has submitted that on
that ground, no interference in this Appeal is required.
[4.1] However, he has candidly admitted that as per the
decision in the case of Smt. Sarla Verma & Ors. (Supra),
which has been relied on by the tribunal, multiplier of 16
applied is incorrect and it should be 15. He has submitted that
if to that extent the judgment and award is modified, in view of
the decision in the case of Smt. Sarla Verma & Ors. (Supra)
he has no grievance to the extent, and therefore, he accepts
the same.
[5.0] Having gone through the impugned judgment and
award as also hearing the learned advocates for the appearing
parties, this Court is called upon to determine whether the
Rickshaw driver was negligent in any manner in causing the
accident in question, that too, to the extent with which he is
held responsible.
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
[5.1] Considering the reasons assigned by the tribunal, in
paragraph 17, taking note of evidence adduced before it
wherein it is deposed that when one passenger in the
Rickshaw alighted from it for checking emission of smoke from
the Rickshaw to assess the situation and when he went to the
rear side of it, the Motorcycle driver came in full speed in rash
and negligent manner from the back side of the Rickshaw
losing control over the Motorcycle and fell down on the road
verge beside the road and sustained severe injuries on his
head because of which he died while undergoing treatment on
24.07.2005. It is further mentioned in the deposition that
there was collision between the Rickshaw and Motorcycle.
However in the cross examination of the said witness, which
has been referred at paragraph 18, it is certain that the said
Rickshaw was travelling on that road i.e. it was in use and on a
sudden emission of smoke, the Rickshaw driver stopped it and
the passenger, to check the smoke, alighted from the
Rickshaw to assess the situation by going to the rear side of
the Rickshaw and at that time, the alleged incident occurred,
and therefore, it is certain that the Rickshaw was not
stationary on the road, as claimed by the advocate of the
appellant, and because of mechanical failure, the accident took
place while the Rickshaw was in use on the public road.
Therefore, whether the Motorcycle has dashed with the
Rickshaw or not it is immaterial for the decision of either
negligence or factum of the accident. It is because of sudden
stoppage of Rickshaw due to emission of smoke when
passenger alighted from it, the accident occurred. If at all it
was to be checked it has to be checked but the Rickshaw had
to be parked on the edge of the road and not on the road. At
any rate, since the accident has occurred because of use of
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
vehicle on public road, when the negligence is attributed, on
appreciation of evidence by the tribunal as mentioned in
paragraph 22 of the impugned judgment and award, I see no
reason to interfere with the said finding as also to the extent of
negligence attributed to the driver of the Rickshaw. Thus,
even if the Motorcycle has dashed with the Rickshaw or not, it
is immaterial when it knocked down the person who was
checking the Rickshaw which stopped on the road for smoke
emission. The involvement and use of the Rickshaw for
causing the accident is most important, and therefore, the
argument raised by the learned advocate for the appellant that
there is no collision with vehicles is hereby rejected.
[5.2] Coming to the second ground for which Mr. Tejas
Satta, learned advocate for the original claimants has also
conceded that the multiplier should have been applied at 15
instead of 16 by the tribunal to assess the compensation, to
that extent the impugned judgment and award is required to
be modified.
[5.3] Hence, this Appeal is partly allowed not interfering
with the negligence attributed to the driver of the Rickshaw
but multiplier should be applied at 15 to that of 16 for arriving
at compensation determined by the tribunal. Rest of the
judgment and award is not interfered with.
[5.4] Thus, the impugned judgment and award passed by
the tribunal is modified to the extent of applying multiplier at
15 instead of 16. Thus, future loss of dependency would come
to Rs.19,78,020/- instead of Rs.21,00,988/-. Rest of the amount
under different heads are not interfered with, and therefore,
C/FA/3319/2021 JUDGMENT DATED: 09/02/2022
the total amount of compensation required to be awarded
comes to Rs.20,48,020/-. The calculation of compensation out
of the total compensation considering the negligence
attributed to the Rickshaw driver would come to Rs.8,19,208/-
instead of Rs.8,71,955/-. Thus, the appellant to deposit the
aforesaid amount alongwith interest as awarded by the
tribunal except for the period mentioned in the judgment i.e.
from 03.04.2010 to 03.05.2014 with the tribunal within a
period of eight weeks from today.
[6.0] With this, the present Appeal is partly allowed.
ORDER IN CIVIL APPLICATION
In view of the order passed in the main First Appeal,
no order in the Civil Application and it stands disposed of
accordingly.
(UMESH A. TRIVEDI, J.)
siji
