Gujarat High Court
New India Assurance Co. Ltd vs Smt. Gurjeetkaur Savaransingh ... on 23 February, 2022
Bench: Ashokkumar C. Joshi
C/FA/3368/2017 JUDGMENT DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3368 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/FIRST APPEAL NO. 3368 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
NEW INDIA ASSURANCE CO. LTD.
Versus
SMT. GURJEETKAUR SAVARANSINGH SARDAR & 4 other(s)
=======================================
Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
NOTICE SERVED for the Defendant(s) No. 5
NOTICE UNSERVED for the Defendant(s) No. 4
=======================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 23/02/2022
ORAL JUDGMENT
1. This appeal is preferred by the appellant - New India
Assurance Co. Ltd. (the insurance company) being aggrieved by
C/FA/3368/2017 JUDGMENT DATED: 23/02/2022
the judgment and award dated 07.07.2017 passed by the learned
Motor Accident Claims Tribunal (Auxiliary-9) (Ad-hoc),
Gandhidham - Kachchh im Motor Accident Claim Petition No. 345
of 2006.
2. Admit. Learned advocate Mr. Hiren Modi for the
respondent Nos. 1, 2 and 3 - original claimants waives service.
Though served, none appears for the respondent No. 5.
Respondent No. 4 is the driver of the offending vehicle.
Considering the controversy involved in the matter, with the
consent of the learned advocates for the respective parties, the
matter is taken up for final hearing today.
3. Facts giving rise to the present appeal are such that on
13.06.2006 at about 6:00 a.m. deceased Savaransingh Sardar
was sleeping outside A. R. C. Hotel in the open ground when a
Dumper bearing registration No. GJ-12-W-8567, driven by the
respondent No. 4, ran over the deceased causing fatal injuries.
The widow and minor children of the deceased, therefore, filed
the claim petition claiming compensation of Rs.8 lakh for the
death of the deceased.
4. It was contended that the deceased was aged 32 years and
working in a Transport earning Rs.5,000/- per month. No
evidence, however, qua his income was produced. The Tribunal,
considering his income at Rs.3,000/- per month, considered
prospective income of the deceased at Rs.4,500/- per month.
Deducting 1/3rd towards personal expenses, dependency loss was
assessed to Rs.3,000/- per month i.e. Rs.36,000/- per annum.
Applying the multiplier of 16, the claimants were held to be
entitled to Rs.5,76,000/- towards dependency loss. The Tribunal,
C/FA/3368/2017 JUDGMENT DATED: 23/02/2022
thereafter, awarded Rs.1 lakh towards loss of consortium, Rs.2
lakh towards loss of love and affection and Rs.25,000/- towards
funeral expenses, making a total of Rs.9,01,000/- with
proportionate costs and interest at the rate of 7.5% per annum
from the date of filing of the claim petition till realization. The
insurance company has filed this appeal, grieved to the extent of
Rs.1,75,000/- and rest award has remained unchallenged.
5. The lone contention raised by the appellant is that the
Tribunal has committed an error in awarding Rs.3,25,000/- under
the head of general damages. Mr. Mehta, learned advocate for
the appellant - insurance company, has contended that as per
the decision of the Hon'ble Apex Court in National Insurance
Co. Ltd. v. Pranay Sethi and Other, AIR 2017 SC 5157, the
claimants would be entitled to Rs.70,000/- only under these
heads and there is an ex facie error committed by the Tribunal.
6. Per contra, learned advocate Mr. Hiren Modi for the
respective respondents has submitted that the Tribunal has
committed no error which would require interference at the
hands of this Court and eventually, he has requested to dismiss
this appeal.
7. Regard being had to the submissions made and considering
the decision of the Apex Court in United India Insurance Co.
Ltd. v. Satinder Kaur and Others, 2020 ACJ 2131, and in the
facts and circumstances of the case, in the considered opinion of
this Court, the claimants would be entitled to following
compensation:
C/FA/3368/2017 JUDGMENT DATED: 23/02/2022
Head Amt. (Rs.)
Dependency Loss 5,76,000/-
Spousal Consortium 40,000/-
Parental Consortium 80,000/-
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
Total 7,26,000/-
7.1 Accordingly, there is substance in the contention raised by
the learned advocate for the appellant and hence, the impugned
judgment and awards deserves to be modified to the extent as
aforesaid.
8. In the aforesaid backdrop, this appeal is allowed and the
impugned judgment and award dated 07.07.2017 passed by the
learned Motor Accident Claims Tribunal (Auxiliary-9) (Ad-hoc),
Gandhidham - Kachchh im Motor Accident Claim Petition No. 345
of 2006 is hereby modified and the original claimants are held to
be entitled for a sum of Rs.7,26,000/- as referred to herein above,
instead of Rs.9,01,000/- as awarded by the Tribunal. The rest of
the judgment and award shall remain intact.
8.1 The appellant shall deposit the amount, as aforesaid, within
10 weeks from today before the Tribunal concerned. Upon such
deposit being made, the Tribunal shall disburse and invest the
amount as specified in the impugned judgment and award.
8.2 In the event the appellant has already deposited the
awarded amount, the appellant would be entitled to refund of
Rs.1,75,000/- along with proportionate costs and interest.
C/FA/3368/2017 JUDGMENT DATED: 23/02/2022
9. In view of main appeal is allowed, Civil Application No. 1 of
2017 for Stay stands disposed of.
[ A. C. Joshi, J. ]
hiren
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