Gujarat High Court
New India Assurance Company ... vs Hussain Haji Adam Sumra ... on 20 January, 2022
Bench: Hemant M. Prachchhak
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3386 of 2005
With
R/CROSS OBJECTION NO. 119 of 2007
In
FIRST APPEAL NO. 3386 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
NEW INDIA ASSURANCE COMPANY LIMITED
Versus
HUSSAIN HAJI ADAM SUMRA (DECD)THR'HEIRS & 2 other(s)
==============================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Defendant(s) No. 1.1,1.2,1.3,1.8
RULE SERVED(64) for the Defendant(s) No. 1.4,1.5,1.6,1.7,2
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 1.9,3
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 20/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 12.07.2005 passed by the Motor
Accident Claims Tribunal (FTC-2) Kutch in MACP No.471 of
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
2000, the Insurance Company has filed present appeal under
Section 173 of the Motor Vehicles Act, 1988. The original
claimants have also filed Cross Objection for enhancement.
2.0. The following facts emerge from the record of this appeal:
2.1. The accident took place on 1.6.2000 at about 2.45 pm near
Dindh Patiya abutting on Mandvi Bhuj Road. It is the case of
the claimants that while deceased was traveling to his village
Dumra along with his wife, daughter in a Chakda and said
Chakda was stopped near signboard of village Dhindh. It is
further the case of the original claimants that while deceased
was just paying amount of fare to Chhakdawala, Tata Mobile
No.GJ-12-V-6338 came from the Bhuj side and that too on
wrong side and collided with the deceased, because of which, the
deceased sustained serious injuries and ultimately even though
attempt was made to give medical treatment, he succumbed to
the same. The present claim petition was preferred under
Section 166 of the Motor Vehicles Act, 1988 by 9 dependents of
the deceased which includes wife, children and parent and claim
compensation of Rs.45 lakhs. It was the case of the respondents-
original claimants that deceased used to earn Rs.3,36,000/- per
month from the agriculture and was also doing work as a
mechanic. The wife of the deceased was examined at Exh.24,
one Jafar Haji Adam at Exh.74 and Hansibai Sumra at Exh.52.
Over and above same, the claimants also relied upon the
documentary evidence such as complaint at Exh.42, Panchnama
at Exh.43, receipt of premium paid of Policy at Exh.45, PM note
at Exh.44, Medical bills at Exh. 57 & 58 and certificates at Exhs.
60 & 61. The Tribunal assessed the income of the deceased at
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
Rs.1,36,500/=- pa as income and awarded a sum of
Rs.15,01,500/- as compensation under the head of loss of
dependency, Rs.20,000/- towards loss of estate, Rs.10,000/-
towards loss of consortium, Rs.10,000/- towards pain, shock
and suffering and Rs.2500/- towards obsequial ceremonies and
thus awarded total compensation of Rs.15,44,000/- with 9%
interest from the date of filing of claim petition till its realization.
Being aggrieved and dissatisfied with the same, present appeal is
filed by the Insurance Company and the original claimants have
also filed Cross Objections.
3.0. Heard Mr. Mazmudar, learned advocate for the appellant-
Insurance Company and Mr. Vishal Mehta, learned advocate for
Mr. Mehul Shah, learned advocate for the original claimants and
have also perused the original record and proceedings.
4.0. Mr. Mazmudar learned advocate for the appellant -
Insurance Company contended that the Tribunal has committed
an error in determining the income of the deceased at
Rs.1,12,500/- that too from the agriculture. Mr. Mazmudar
disputing the said computation and determination of the income
of the deceased contended that the agriculture land has
remained with the claimants and therefore, at the most only
supervisory loss can be considered. On the aforesaid grounds,
Mr. Mazmudar contended that the Tribunal has awarded
excessive compensation which deserves to be sliced down by
allowing the appeal as prayed for. Mr. Mazmudar further
contended that the cross objection filed by the original claimants
are meritless and same deserves to be dismissed.
5.0. Per contra, Mr. Vishal Mehta, learned advocate has
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
contended that the Tribunal has rightly considered the
agriculture income at Rs.1,12,500/-. Mr. Mehta contended that
the income from agriculture was much ore and same has been
proved by oral depositions of wife of the deceased was examined
at Exh.24, one Jafar Haji Adam at Exh.74 and Hansibai Sumra
at Exh.52 and the Tribunal has committed as such no error in
computing and determining the income from agriculture. Mr.
Mehta further contended that age of the deceased was 50 years
on the date of accident and not 53 as considered by the
Tribunal. Mr. Mehta contended that the Tribunal has taken into
consideration the age mentioned in the postmortem note at
Exh.44 whereas the respondent claimants have proved the date
of birth by relying upon the passport which shows that the
deceased was 50 years old on the date of accident. Mr. Mehta
further contended that in view of the same, the respondent
claimants would be entitled to multiplier of 13 and not 11 as
granted by the Tribunal. Relying upon the judgment of the
Hon'ble Supreme Court in the case of United India Insurance
Company Limited vs. Satinder Kaur @ Satwinder Kaur reported
in AIR 2020 SC 3076, in the case of New India Assurance
Company Limited vs. Somwati and Ors reported in (2020) 9 SCC
644 and in the case of Magma General Insurance Co. Ltd vs.
Nanu Ral Alias Chuhur Ram & Ors reported in (2018)18 SCC
130, Mr. Mehta contended that claimants who are wife, children
and parents would be entitled to consortium. Mr. Mehta
contended that the Tribunal has committed error in deducting
1/3 towards personal expenses of the deceased. On the
aforesaid grounds, Mr. Mehta contended that the appeal filed by
the Insurance Company being meritless, deserves to be
dismissed and Cross Objections filed by the original claimants
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
for enhancement of the compensation deserves to be allowed and
to arrive at just and adequate compensation.
6.0. No other and further submissions/ grounds/ contentions
have been made by the learned advocates for the respective
parties.
7.0. Upon considering the submissions made and perusal of the
relevant copies of the evidence, copies of which were provided by
the learned advocates for the respective parties, it clearly
transpires that the Tribunal has rightly assessed the income
from the agriculture at Rs.1,12,500/-. Upon re-appreciation of
the evidence on record, more particularly, the deposition of
Shaileshkumar Dhanbhai Vasaiya- Talati cum Mantri of village
Dumra at Exh.59 and certificate at Exh.61 clearly shows that
even if the contention raised by Mr. Mehta is considered, the
income from agriculture computed and determined of the
deceased at Rs.1,12,500/-, is appropriate. The record also shows
that the passport was on record being Exh.51 which indicates
that the date of birth of the deceased was 25.3.1950 and the
date of accident being 1.6.2000. The deceased had just
completed 50 years on the date of accident. In our opinion, the
Tribunal has committed an error in relying upon the postmortem
report in determining the age of the deceased. The deceased had
9 dependents and following the ratio laid down by the Hon'ble
Supreme Court in the case of Sarla Verma and ors. vs. Delhi
Transport Corporation and Anr. reported in (2009) 6 SCC 121,
the deduction towards personal expenses would be 1/5 and not
1/3 as considered by the Tribunal. Similarly, as the age of the
deceased was 50 years old on the date of accident, appropriate
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
multiplier would be 15 and not 11 as granted by the Tribunal..
Having come to the aforesaid conclusion, the original claimants
would be entitled to compensation under the head of dependency
loss as under:
Rs. 1,36,500/- per year (income) + Rs34125/- (25%
prospective income) = 1,70,625/- - 34125/- (1/5 towards
personal income = Rs.1,36,500/- x 13 (Multiplier as the
age of the deceased was 50 years) = Rs. 17,74,500/ -.
7.1. Following the ratio laid down by the Hon'ble Supreme
Court in the case of Magma General Insurance Co. Ltd (supra),
in the case of Somwati and Ors (supra) and in the case of
Satinder Kaur @ Satwinder Kaur (supra), the appellant no.1 as
wife would be entitled to spousal consortium of Rs.40,000/- and
similarly original claimants no.4 to 7 who were minor children
would be entitled to parental consortium of Rs.40,000/- and
similarly original claimants no. 8 and 9 who are parents would
be entitled to filial consortium of Rs.40,000/- each. The
respondents claimants would also be entitled to further amount
of Rs.30,000/- towards loss of estate and funeral expenses and
thus, the respondents claimants would be entitled to
compensation as under:
Particulars Amount (Rs.)
Future loss of income 17,74,500/-
Parental, spousal and filial 2,80,000/-
consortium
Loss of estate & Funeral 30,000/-
expenses
Total Compensation 20,84,500/-
C/FA/3386/2005 JUDGMENT DATED: 20/01/2022
8. Thus, the original claimants would be entitled to
compensation of Rs.20,84,500/. As the Tribunal has awarded
Rs.15,44,000/-, the Insurance Company shall deposit the
additional amount of Rs.5,40,500/- with the Tribunal within a
period of eight weeks from the receipt of the order. However, on
the additional amount of compensation awarded by this Court,
the appellants would be entitled to interest at the rate of 6%
from the date of filing of claim petition till its realization. Rest of
the award passed by the learned Tribunal remains unaltered. In
view of the above, the appeal filed by the Insurance Company is
dismissed and Cross objection filed by the original claimants is
hereby partly allowed to the aforesaid extent. However, there
shall be no order as to costs.
sd/-
(R.M.CHHAYA,J)
sd/-
(HEMANT M. PRACHCHHAK,J)
KAUSHIK J. RATHOD
