Gujarat High Court
New India Assurance Co Ltd vs Vijuben Kiritisinh Dabhi on 28 January, 2022
Bench: Hemant M. Prachchhak
C/FA/973/2009 JUDGMENT DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 973 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 copyNo
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NEW INDIA ASSURANCE CO LTD
Versus
VIJUBEN KIRITISINH DABHI & 5 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 2
MR PARESH M DARJI(3700) for the Defendant(s) No. 1,3,6
RULE SERVED(64) for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/01/2022
ORAL JUDGMENT
1. The present appeal is filed by the Insurance Company
against the judgment and award passed by the Motor Accident
Claims Tribunal (Main), Ahmedabad (Rural) at Mirzapur dated
C/FA/973/2009 JUDGMENT DATED: 28/01/2022
03.07.2008 below Exh. 54 in MACP No. 197 of 2003.
2. Being aggrieved and dissatisfied with the impugned
judgment and award, the appellant- Insurance Company has
preferred the present appeal mainly on the ground of quantum
and has not challenged the appeal on any other grounds. The
only issue involved in the present appeal is with regard to the
determination of the quantum and the income of the
deceased.
3. The brief facts of the present case are as under.
3.1 On 25.01.2003, an accident had taken place by
motorcycle bearing registration No. GJ-1-CN-3737 on Sarkhej-
Bavala road near the sign board of village-Moraiya. On that
time, the respondent herein was pillion rider and thrown on the
road and sustained severe injuries.
4. Heard Mr. H.G. Majmudar, learned advocate appearing
for the appellant- Insurance Company and Mr. Paresh Darji,
learned advocate appearing for the respondent Nos. 1, 3 & 4
for the original claimants through the Video Conference.
Though rule served to the other respondents, none appears on
their behalf.
5. It is relevant to note here that during the pendency of the
appeal, opponent No.2 - original claimant No.2-
Dharmendrasinh Kiritsinh was passed away and therefore qua
him the appeal is abated.
6. Mr. H.G. Majmudar, learned advocate appearing for the
C/FA/973/2009 JUDGMENT DATED: 28/01/2022
appellant- Insurance Company has contended that the income
considered by the Tribunal while determining the income of
the deceased was not properly appreciated by the Tribunal as
the deceased was suspended from the service and therefore,
the salary certificate can not be considered in toto.
6.1 Learned advocate for the appellant has further submitted
that the multiplier was considered by the Tribunal was on
higher side and therefore, also the impugned judgment and
award is erroneous and illegal. Except this, there is no any
other and further grounds raised by the learned advocate for
the appellant- Insurance Company. It is submitted that the
present appeal may be allowed.
7. As against that, Mr. Paresh Darji, learned advocate for
the respondents - original claimants has submitted that
subsequently the order of suspension against the deceased
and he was revoked and he was in service at the time of the
accident. He has submitted that therefore, the Tribunal has
rightly appreciated the salary certificate issued by the State
Government in favour of the deceased and the income of the
deceased was rightly proved beyond reasonable doubt. It was
further contended that the Tribunal has not passed any order
of consortium qua the dependents and therefore, the
impugned judgment and award is just and proper and no
interference is required to be called for.
8. Having heard learned advocates for the respective
parties and having considered the material on record and
considered the recent judgments of the Hon'ble Apex Court
reported in (i) Sarla Verma and others Vs. Delhi Transport
C/FA/973/2009 JUDGMENT DATED: 28/01/2022
Corporation and another, (2009) 6 SCC 1211 (ii) National
Insurance Company Limited Vs. Pranay Sethi and others,
(2017) 16 SCC 680, (iii) Magma General Insurance Company
Limited Vs. Nanu Ram alias Chuhru Ram and others, (2018) 18
SCC 130 and (iv) United India Insurance Company Limited Vs.
Satinder Kaur alias Satwinder Kaur and others, AIR 2020 SC 620 ,
I am of the view that the income of the deceased was
determined by the Tribunal was in consonance with the ratio laid
down by the Hon'ble Apex Court in the above referred decisions.
It is indicated that the Tribunal has calculated and considered
the multiplier by 15 instead of 14, but will not make any major
change in the impugned judgment and award passed by the
Tribunal and Rs. 30,000/- and 40,000/- is difference will not make
any major change in the impugned judgment. It is an admitted
fact that the accident was occurred on 25.02.2003, almost 20
years have been passed and till date, the legal heirs of the
deceased are fighting of the compensation. It is benevolent
legislation and considering the just compensation, the calculation
determined by the Tribunal is proper and therefore, there is no
reason to interfere with the findings recorded by the Tribunal.
9. In view of above, the following order is passed.
9.1 The present appeal is dismissed.
9.2 The impugned judgment and order passed by the Tribunal
is unaltered. The amount which is lying with the Tribunal in the
name of the original claimants in FDR is to be disbursed in favour
of the original claimants after issuing account payee cheque
after proper verification.
C/FA/973/2009 JUDGMENT DATED: 28/01/2022
9.3 It is to be noted that during the pendency of the present
appeal, one of the claimant i.e. Dharmendrasinh Kiritsinh was
passed away and therefore, the share of the deceased
Dharmendrasinh Kiritsinh shall be disbursed in favour of the
remaining other original claimants.
Record and Proceedings be sent back to the concerned
Tribunal forthwith.
(HEMANT M. PRACHCHHAK,J)
SALIM/
