Gujarat High Court
National Insurance Company Ltd vs Jyotiben Wd/O Dilipbhai J Bhojak on 11 February, 2022
Bench: Niral R. Mehta
C/FA/4590/2010 ORDER DATED: 11/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4590 of 2010
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NATIONAL INSURANCE COMPANY LTD
Versus
JYOTIBEN WD/O DILIPBHAI J BHOJAK & 4 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 4
HL PATEL ADVOCATES(2034) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 11/02/2022
ORAL ORDER
[1] Being aggrieved and dissatisfied by the Judgment
and award dated 15.05.2010 passed in MACP No.139 of
2004 passed by the learned Motor Accident Claims
Tribunal (Aux.), Mehsana, the opponent No.3 - Insurance
Company has filed this appeal under Section 173 of the
Motor Vehicles Act.
[2] The original claim of the claimant was for a sum of
Rs. 20 Lakhs as against that the learned Tribunal awarded
a sum of Rs.11,43,000/- along with 7.5% interest.
C/FA/4590/2010 ORDER DATED: 11/02/2022
[3] It is the say of the claimant that on 30.05.2003,
deceased Dilipbhai J. Bhojak was walking near the main
gate of Dudhsagar Diary. The driver of the offending
vehicle bearing Truck No. RJ19-G-3786 was driving the
truck in a rash and negligent manner and dashed Dilipbhai
J. Bhojak. Pursuant thereto, he sustained serious injuries
and ultimately succumbed to injuries. Therefore, the
claimants approached the learned Tribunal under Section
166 of the Motor Vehicle Act seeking compensation, inter
alia, for a sum of Rs. 20 Lakhs under various heads.
[4] Upon service of notice, opponent Nos. 1 and 2 have
chosen not to appear before the learned Tribunal.
However, the respondent No.3 - Insurance Company filed
written statement at Exh.47 opposing the claim petition by
taking all available defences. The learned Tribunal having
considered the evidence on record came to the conclusion
that the accident in question occurred due to sole
negligence of the driver of the offending vehicle. The
learned Tribunal thereafter proceeded to award
compensation by considering the income of the deceased
C/FA/4590/2010 ORDER DATED: 11/02/2022
at Rs.8,000/- per month. The learned Tribunal has
considered the future rise of income and thereafter after
deducting personal expenditure at 1/3, the net monthly
income was considered at Rs.8,000/- per month.
Accordingly, the yearly income of the deceased was
considered at Rs. 96,000/-. Thereafter, considering the
age of the deceased at 54 years, multiplier of 8 was
awarded. Hence, Rs.96,000 x 8 = Rs.7,68,000/- was
awarded by the learned Tribunal under the head of future
dependency loss. Thereafter, the learned Tribunal has
considered a sum of Rs. 3,50,000/- under the head of pain,
shock and suffering, medical expenditure, transportation
and attendant charges. The learned Tribunal has also
awarded a sum of Rs.15,000/- under the head of
consortium and Rs.10,000/- awarded under the head of
funeral expenses and transportation. Thus, in all
Rs.11,43,000/- came to be awarded by the learned
Tribunal.
[5] Feeling aggrieved by the aforesaid, the Insurance
Company original opponent No.3 has approached this
Court by way of present appeal.
C/FA/4590/2010 ORDER DATED: 11/02/2022
[6] I have heard Mr. Maulik J. Shelat, learned advocate
for the Insurance Company and Mr. Maharshi Patel,
learned advocate for the original claimants. The driver
and owner of the offending vehicle though served have
chosen not to appear.
[7] Mr. Maulik J. Shelat, learned advocate for the
Insurance Company has mainly confined his argument qua
the quantum and thereby admitted the negligence on the
part of the offending vehicle, insured of the Insurance
Company. Mr. Shelat, learned advocate has submitted
that the learned Tribunal has materially erred in
considering the income of the deceased and thereby
awarded excessive compensation. Mr. Shelat, learned
advocate has further submitted that the learned Tribunal
ought not to have considered the income at Rs. 8,000/-.
However, Mr. Shelat, learned advocate could not dispute
the evidence towards the salary slip produced at Exh.36.
[8] Per contra, Mr. Maharshi Patel, learned advocate for
the original claimants has vehemently opposed this appeal
C/FA/4590/2010 ORDER DATED: 11/02/2022
and submitted that the compensation awarded by the
learned Tribunal is just and fair and in accordance with the
law laid down by the Hon'ble Apex Court. To buttress his
arguments, Mr. Patel, learned advocate has relied upon
the judgment of the Hon'ble Supreme Court in the case of
Smt. Sarla Verma & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 and
in the case of National Insurance Company Limited
Versus Pranay Sethi and Ors. reported in (2017) 16
SCC 680.
[9] I have heard learned advocates appearing for the
respective parties and considered the record and
proceedings of the case. No other and further
submissions except as stated hereinabove are made.
[10] A short question that calls for my consideration is
whether the compensation awarded by the learned
Tribunal is just and proper or not. To decide the aforesaid
question, it would be necessary to consider the law laid
down by Hon'ble Supreme Court in the cases of Smt.
C/FA/4590/2010 ORDER DATED: 11/02/2022
Sarla Verma (Supra) and National Insurance
Company Limited (Supra). Keeping in mind the ratio
laid down by the Hon'ble Supreme Court in the aforesaid
two cases, if the recalculation being done, the income of
Rs.8,000/- as per the pay slip shall have to be taken into
consideration. Considering the judgment of the Hon'ble
Supreme Court and as per the age, 10% is required to be
added towards the future prospective income. Thus, Rs.
8,800/- per month which will have to be deducted by 1/3
towards the personal expenditure. Therefore, monthly net
income would be Rs. 5,867/- which would be multiplied by
12, come to Rs.70,404/- which has to be considered as
yearly income. Considering the ratio laid down by the
Hon'ble Supreme Court in the cases of Smt. Sarla Verma
(Supra), the proper multiplier would be 9. Considering
the said, the monthly dependency loss would come to Rs.
6,33,636/-. As law laid down by the Hon'ble Apex Court in
the case of National Insurance Company Limited
(Supra), amount under the head of consortium
Rs.40,000/- each is required to be added which would
come to Rs.1,20,000/-. Thus, Rs.7,53,636/- in which
C/FA/4590/2010 ORDER DATED: 11/02/2022
Rs.3,08,492/- deserves to be added towards the actual
medical expenditure. Considering the ratio laid down by
the Hon'ble Supreme Court in the case of National
Insurance Company Limited (Supra), Rs.15,000/-
under the head of loss of estate and Rs. 15,000/- under
the head of funeral expenditure requires to be added.
Considering overall calculations as stated hereinabove,
total amount of compensation would come to Rs.
10,92,128/-. As against that, the learned Tribunal has
granted a sum of Rs. 11,43,000/- which according to me is
a meager amount considering the amount of claim as a
whole. Thus, this Court see no good reason to interfere
with the judgment and award passed by the learned
Tribunal and First Appeal is hereby dismissed accordingly.
Record and Proceedings be sent back forthwith.
(NIRAL R. MEHTA,J)
DHARMENDRA KUMAR
