Gujarat High Court
Cholamandalam Ms General ... vs Divyaratna Anilbhardhwaj Dixit on 23 February, 2022
Bench: Hemant M. Prachchhak
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1383 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/FIRST APPEAL NO. 1383 of 2019
With
R/FIRST APPEAL NO. 2494 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD
Versus
DIVYARATNA ANILBHARDHWAJ DIXIT
================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR LAV MODI FOR MR KV SHELAT(834) for the Defendant(s) No. 3,5,6
NOTICE SERVED for the Defendant(s) No. 4
NOTICE UNSERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 9
Downloaded on : Sun Apr 24 14:02:31 IST 2022
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
Date : 23/02/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Feeling aggrieved and dissatisfied with the judgment and
award dated 20.11.2018 passed by the Motor Accident Claims
Tribunal, (Aux-III), Gandhinagar (hereinafter referred to as "the
Tribunal") in M.A.C.P. No.196 of 2009, the appellant -
Cholamandalam MS General Insurance Company Limited has
preferred First Appeal No.1383 of 2019 under Section 173 r/d.
Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred
to as "the Act") and the appellants - claimants have preferred
First Appeal No.2494 of 2021 for enhancement of the amount of
compensation.
2. Following facts emerge from the record of the appeal.
2.1 It was the case of the claimants that on 27.02.2009, at
about 8.00 p.m., Amrutbhai Mangabhai Patel and Hemrajbhai
Somabhai Desai were travelling on motorcycle bearing
registration No.GJ-18-AD-6824 on Chhala - Kanpur Road and at
that time, a car bearing registration No.MH-02-BG-4653, which
was driven by original opponent no.1 in rash and negligent
manner endangering human life without following traffic rules,
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
dashed with the motorcycle, as a result of which, Amrutbhai
Mangabhai Patel sustained serious injuries and succumbed to
the injuries. The FIR being C.R.No.I - 35 of 2009 was lodged with
Dabhoda Police Station and the claim petition was filed under
Section 166 of the Act claiming compensation of Rs.60,00,000/-.
It was the case of the claimants that the deceased Amrutbhai
was 36 years old at the time of accident and earning Rs.45,000/-
per month from animal husbandry and Rs.30,000/- per month
from agricultural work. The opponent no.1 - Maganbhai
Nathabhai Patel - father of the deceased was examined at
Exhibit 23 and one Nathubhai Manilal Patel was also examined at
Exhibit 32.
2.2 The original claimants also relied upon the documentary
evidence, such as FIR at Exhibit 51, complaint at Exhibit 52,
panchnama of the scene of accident at Exhibit 53, postmortem
report at Exhibit 54, case summary at Exhibit 55, medical bills at
Exhibit 56, payment report with provident fund at Exhibit 33,
village form No.8-A at Exhibit 57, insurance policy at Exhibit 58
and school leaving certificate at Exhibit 59.
2.3 The Tribunal, after appreciating the evidence on record,
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
came to the conclusion that the driver of the offending vehicle
was negligent. Considering the nature of the work, the Tribunal
has determined the income of the deceased at Rs.5,000/- and
applying the multiplier of 40% gave benefit of prospective
income and considered the compensation under conventional,
such as loss of dependency and granted Rs.9,45,000/- as
compensation under the head of loss of dependency, Rs.44,451/-
as medical expenses and Rs.70,000/- as loss of estate, loss of
consortium and funeral expenses. Thus, the Tribunal partly
allowing the claim petition awarded a sum of Rs.10,59,500/- with
9% interest from the date of filing of the claim petition till it's
realization.
3. Heard Mr.Vibhuti Nanavati, learned counsel appearing for
the appellant - Insurance Company and Mr.Lav Modi, learned
counsel for Mr.K. V. Shelat, learned counsel appearing for the
original claimants.
4. Mr.Vibhuti Nanavati, learned counsel appearing for the
appellant - Insurance Company has contended as under:-
(1) The Tribunal has erred in considering the actual in
considering the actual income of the deceased at Rs.5,000/- per
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
month without any cogent findings.
(2) The Tribunal has materially erred in considering the
prospective income of the deceased as there was no loss of
income to the claimants.
(3) The father of the deceased has independent income out of
agricultural activities and the deceased was not owner or having
any share in the agricultural land belonging to his father.
(4) The Insurance Company has challenged the impugned
judgment and award on the ground of quantum and restricted to
the tune of Rs.3,35,160/-. Though, Insurance Company has
challenged the impugned judgment and award by raising many
grounds in the appeal, but the main challenge is to the extent of
quantum as considered by the Tribunal is on higher side.
5. Per contra, Mr.Lav Modi, learned counsel appearing for the
respondents - original claimants has opposed the appeal filed by
the Insurance Company on the ground that the Tribunal has not
committed any error, on the contrary, the compensation
awarded by the Tribunal is on lower side. He has submitted that
the original claimants have also filed appeal being First Appeal
No.2494 of 2021 for enhancement of the compensation awarded
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
by the Tribunal on the ground that the Tribunal has not
considered the income of the deceased in its true and
perspective spirit. He has also submitted that the Tribunal has
not considered the agricultural income of the deceased and not
awarded just and adequate compensation to the heirs of the
deceased.
6. We have gone through the record and proceedings
extensively and we have taken into consideration the
contentions raised on behalf of learned counsel appearing on
behalf of the respective parties and perused the FIR at Exhibit 51
and panchnama of the scene of accident at Exhibit 53. The
contention raised by the learned counsel appearing for the
appellant - Insurance Company in First Appeal No.1383 of 2019,
for determination of loss of dependency, the Tribunal has
considered the income of the deceased is just and proper as
there is no documentary evidence to suggest that the deceased
was earning the income of Rs.45,000/- per month from the
animal husbandry and Rs.30,000/- per month from the
agricultural work. If we consider the income, the deceased was
certainly liable to pay the income tax and, therefore, it is not the
case of the appellant that after the death of the deceased, the
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
said income of the animal husbandry and/or income of the
agricultural work was stopped and the income from both the
sources is continued even after the death of the deceased and,
therefore, the Tribunal has not committed any error while
determining the compensation. Therefore, the income of the
deceased considered by the Tribunal is just and proper and the
loss of dependency considered by the Tribunal is proved. Even
the multiplier applied by the Tribunal is just and proper as the
deceased was 36 years of old at the time of accident and,
therefore, the multiplier applied by the Tribunal is in consonance
with the decision of the Apex Court in the case of Sarla Verma
and others Vs. Delhi Transport Corporation and another,
(2009) 6 SCC 121.
7. So far as the amount of award under the head of loss of
consortium is concerned, following the ratio laid down by the
Hon'ble Apex Court in the case of Magma General Insurance
Company Limited Vs. Nanuram alias Chuhru Ram and
others, (2018) 18 SCC 130, United India Insurance
Company Limited Vs. Satinder Kaur alias Satwinder Kaur
and others, AIR 2020 SC 3076 and New India Assurance
Co. Ltd. Vs. Smt. Somwati and others, (2020) 9 SCC 644,
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
we are of the considered opinion that original claimants no.1 and
2, who are parents of the deceased are entitled to filial
consortium of Rs.40,000/- each and the original claimant no.3,
who is widow of the deceased is entitled to spousal consortium of
Rs.40,000/- and claimant no.4, who is minor son of the deceased
is entitled to parental consortium of Rs.40,000/-. So in all
Rs.1,60,000/- as consortium is to be awarded in addition to the
amount awarded by the Tribunal. We are also of the considered
opinion that the claimants are entitled to get additional amount
of compensation considering the income of the deceased.
8. Having come to the aforesaid conclusion, the original
claimants would be entitled to loss of dependency as under:-
Actual income of the deceased (per month) Rs.6,000/-
Add: 40% rise towards future prospects Rs.2,400/-
Income Rs.8,400/-
Less: 1/4th deduction towards personal expenses (Rs.8400 Rs.2,100/-
x 1/4)
Rs.6,300/-
Dependency Benefits Rs.11,34,000/-
(6300 x 12 months x 15 multiplier)
Plus: Loss of consortium Rs.1,60,000/-
Plus: Funeral expenses Rs.15,000/-
Plus: Loss of estate Rs.15,000/-
Plus: Medical expenses Rs.44,451/-
Total amount Rs.13,68,451/-
C/FA/1383/2019 JUDGMENT DATED: 23/02/2022
Less: Compensation awarded by the Tribunal Rs.10,59,451/-
Additional Amount Rs.3,09,000/-
9. For the foregoing reasons, First Appeal No.1383 of 2019
filed by the Insurance Company is dismissed and First Appeal
No.2494 of 2021 filed by the original claimants is partly allowed
and modified to the extent. The original claimants are entitled to
compensation of Rs.3,09,000/- with simple interest at the rate of
6% from the date of filing of the claim petition till its realization.
The insurer is directed to deposit the additional amount
with interest at the rate of 6% expeditiously at any rate
within an outer limit of eight weeks from the date of
receipt of certified copy of this order. No order as to costs.
Record and proceedings of the case is to be transmitted back to
the concerned Tribunal forthwith.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
