National Insurance Company Ltd vs Katariya Enterprise
2022 Latest Caselaw 907 Guj

    C/FA/1938/2017                              JUDGMENT DATED: 28/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1938 of 2017

                                   With

CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2019
                In R/FIRST APPEAL NO. 1938 of 2017

                                   With

CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2022
                In R/FIRST APPEAL NO. 1938 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

================================================================

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                 NO
    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 ?

================================================================
                     NATIONAL INSURANCE COMPANY LTD.
                                  Versus
                      KATARIYA ENTERPRISE & 4 other(s)
================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAHENDRA U VORA(3034) for the Defendant(s) No. 3,4,5
NOTICE NOT RECD BACK for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1


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       C/FA/1938/2017                             JUDGMENT DATED: 28/01/2022



================================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 28/01/2022

                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and

award dated 22.12.2016 passed by the MAC Tribunal (Aux.)

Ahmedabad (Rural) in MAC Petition No.516 of 2006, the

appellant - Insurance Co. has preferred this Appeal under

Section 173 of the Motor Vehicles Act, 1988 (for short 'the

Act').

2. The following facts emerge from the record of the

Appeal:

2.1 That the accident took place on 13.2.2006 near Chotila-

Sayala crossing of Limbdi-Ahmedabad Highway. It is the case

of the respondents - claimants that the deceased Dr.R.J.S.

Yadav along with one Mr.R.D.Patel were travelling in Maruti

Car from Rajkot to Ahmedabad and when the car reached at

the place of occurrence at about 4.00 a.m., the accident

occurred. It is the case of the claimants that the car was

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

parked properly and the deceased got down from the car to

answer the nature's call and while he was returning, the truck

bearing registration No.GJ-3-W-9390 coming from Sayala

being driven in rash and negligent manner, ran over the

deceased. The record indicates that the deceased sustained

serious injuries and was admitted to Limbdi General Hospital,

however, he succumbed to the injuries during the treatment.

An FIR was lodged with the jurisdictional police station at

Exh.41 and the present claim petition was filed under Section

166 of the Act by the claimants and claimed compensation of

Rs.24 lakhs. It was the case of the claimants before the

Tribunal that the deceased was working as Principal in the

Gujarat Homeopathy Medical College, Savli, Vadodara and

had a monthly salary of Rs.36,805/- per month as per the 6th

Pay Commission. The claimants examined the wife of the

deceased at Exh.24 and also examined a witness - Dr.R.D.

Patel, who was travelling with the deceased and also relied

upon documentary evidence as under :

                    Particulars                                    Exh.
    Certified copy of income certificate of deceased                35
    Certified copy of salary slip of deceased for the               36
    month of December,2005
    Certified copy of salary slip of deceased for the               37
    month of January, 2006






       C/FA/1938/2017                                       JUDGMENT DATED: 28/01/2022



       Certified copy of salary certificate of deceased for                  38
       the period 1.4.2004 to 31.3.2005

       Commission







2.2     The Tribunal, after considering the deposition of the

claimants at Exh.24, FIR at Exh.41, Panchnama of place of

occurrence at Exh.42, PM Report at Exh.44, came to the

conclusion that the driver of the truck was solely negligent for

the accident and also took note of the fact that the driver,

though available, was not examined by the Insurance Co. The

Tribunal considered the deposition of the claimants at Exh.24

and while arriving at just compensation, considered the

income-tax returns and the pay slip at Exh.33 and considered

the income of the deceased at Rs.46,180/- per month. The

Tribunal, however, did not consider any prospective income,

but after deducting 1/4th, applied multiplier of 9 and awarded

a sum of Rs.37,42,200/- as compensation under the head of

loss of dependency. Over and above the same, the Tribunal

also awarded Rs.10,000/- towards funeral expenses,

Rs.25,000/- towards loss of estate, Rs.25,000/- towards loss of

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

consortium and Rs.25,000/- towards loss of love and affection

and thus, awarded total compensation of Rs.38,27,200/- with

9% interest per annum from the date of filing of the claim

petition till its realization.

2.3 Being aggrieved by the same, the present Appeal is filed

by the appellant - Insurance Co.

3. Heard Mr.Vibhuti Nanavati, learned counsel for the

appellant - Insurance Co. and Mr.Mahendra U. Vora, learned

counsel for the original claimants. Though served, no one

appears for the other respondents. However, as the liability is

not denied, presence of other respondents is not necessary for

deciding the present Appeal.

4. Mr.Vibhuti Nanavati, learned counsel appearing for the

appellant - Insurance Co., contended that the Tribunal has

committed an error in considering the income of the deceased

at Rs.46,200/-. According to Mr.Nanavati, the accident

occurred on 13.2.2006. Referring to the salary slip of the

deceased for the month of December, 2005 at Exh.26, it was

contended by Mr.Nanavati that the total salary of the

deceased was Rs.36,804/-. Mr.Nanavati further referring to

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

the said pay slip, contended that the Tribunal has also not

deducted the other allowance like transport allowances and

professional tax as well as income-tax which should be

deducted to arrive at a net income of the deceased.

Mr.Nanavati also contended that the mother of the deceased

died during the pendency of the claim petition, leaving behind

only 3 dependents and hence, deduction should be to the

extent of 1/3rd and not 1/4th as calculated by the Tribunal.

Relying upon the ratio laid down by the Apex Court in the

case of National Insurance Co. Ltd. v. Pranay Sethi &

Others, reported in (2017) 16 SCC 680, it was contended by

Mr.Nanavati that the additional compensation by way of

compensation under different conventional as including

funeral expenses would be Rs.70,000/- only, whereas the

Tribunal has granted an excess amount. On the aforesaid

ground, it was contended by Mr.Nanavati that the impugned

judgment and award is erroneous and the same deserves to be

modified by partly allowing the Appeal as prayed for.

5. Per contra, Mr.Mahendra U. Vora, learned counsel

appearing for the original claimants, has supported the

impugned award. Mr.Vora contended that the Tribunal has

committed no error in considering the income of the deceased

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

per month as Rs.46,200/- as the deceased was working as

Principal in the Gujarat Homeopathy Medical College and had

derived the benefit of 6th Pay Commission w.e.f. 1.1.2006.

Mr.Vora further contended that the mother was alive when

the accident took place and in fact, she was applicant No.1 in

the claim petition. Hence, on the date of the accident and

even on the date of filing of the claim petition, the deceased

had 4 dependents and hence, deduction towards personal

expenses would be 1/4th as has rightly been calculated by the

Tribunal and no interference is called for. Mr.Vora further

submitted that the Tribunal has granted just compensation

under the different heads and no case for interference is made

out and the Appeal being meritless, deserves to be dismissed.

Mr.Vora, therefore, submitted that the Appeal being

misconceived, deserves to be dismissed. No other or further

submissions have been made by the learned counsel

appearing for the respective parties.

6. We have perused the original record and proceedings

received from the Tribunal. The questions which arise for

consideration in this Appeal are whether the Tribunal has

rightly considered the income of the deceased at Rs.46,200/-

per month or not and whether the deduction towards personal

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

expenses is to the extent of 1/4th is properly made by the

Tribunal or not.

7. In order to answer the aforesaid questions, it would be

apt to refer to the deposition of Manikaben Ramjanm Yadav,

the wife of the deceased at Exh.24. It clearly appears from the

deposition and even from the cross-examination that the

deceased was 58 years old on the date of the accident and

that the deceased did receive the benefit of 6 th Pay

Commission from 1.1.2006. Even considering the Form-16 at

Exh.38, the same is reflecting. It is a matter of fact that 6 th

Pay Commission was implemented w.e.f. 1.1.2006, whereas

the deceased met with an accident and expired on 13.2.2006

and, therefore, the deceased must have received the salary for

the month of January, 2006 as per 6 th Pay Commission and,

therefore, the Tribunal has rightly determined the income of

the deceased based upon the salary as per 6 th Pay Commission

i.e. Rs.46,200/- and hence, the Tribunal has committed no

error in determining the monthly income of the deceased at

Rs.46,200/-. However, upon perusal of the pay slip at Exh.36

which reflects the salary of the deceased for the month of

December, 2005 and also considering the oral deposition of

the witness - Mr.R.D.Patel at Exh.34, an amount of Rs.1000/-

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

was deducted towards income-tax and Rs.4000/- was given to

the deceased as transport allowance and Rs.80/- came to be

deducted as professional tax. Following the ratio laid down by

the Apex Court in the case of Pranay Sethi (Supra), the

income would mean income (-) tax. Therefore, in facts of this

case, the income of the deceased would be Rs.44,720/-

(Rs.46,200/- (-) Rs.1000/- (-) Rs.400/- (-) Rs.80/-). As the

deceased was 57 years old on the date of the accident and

was on a permanent job, the respondents - claimants would

be entitled to prospective income by way of increase in

income to the tune of 15% and, therefore, the gross income of

the deceased including prospective income would come to

Rs.51,406/-. We find from the Records and Proceedings that

the original claim petition was filed by the 4 dependents and

Mrs.Sumitraben Kaiyubsing Yadav, the mother of the

deceased, was alive and was aged 70 years on the date of the

filing of the claim petition. Considering the position as it

existed on the date of accident as well as on the date of filing

of the claim petition, the deceased had 4 dependents and,

therefore, the deduction towards personal expenses has to be

1/4th and not 1/3rd, as canvassed by Mr.Nanavati, learned

counsel for the Insurance Co. and hence, Rs.17,135/- is

required to be deducted i.e. Rs.51,406/- (-) Rs.17,135/-, the

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

net monthly income, therefore, would come to Rs.34,271/- and

yearly, the income would come to Rs.4,11,252/-. The

appropriate multiplier would be 9 considering the age of the

deceased to be 57 years and hence, the respondents -

claimants would be entitled to compensation under the head

of future loss of income at Rs.37,01,268/- (Rs.4,11,252/- x 9).

In addition to this, the respondents - claimants would also be

entitled to additional compensation of Rs.70,000/- under the

different conventional heads and thus, the respondents -

claimants would be entitled to total compensation of

Rs.37,71,268/-. As the Tribunal has awarded Rs.38,27,200/-,

the appellant - Insurance Co. would be entitled to refund of

Rs.55,932/- with proportionate interest and cost.

8. In view of above, the impugned judgment and award

stands modified to the aforesaid extent. The Tribunal shall

refund the amount of Rs.55,932/- with proportionate interest

and cost to the appellant - Insurance Co. forthwith. The

Appeal is, thus, partly allowed. However, there shall be no

order as to costs. The original Records and Proceedings be

transmitted to the Tribunal forthwith. The Tribunal shall act

as per the modified award.

C/FA/1938/2017 JUDGMENT DATED: 28/01/2022

9. As the main Appeal is disposed of by order of even date,

connected Civil Applications would not survive and stand

disposed of accordingly.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) V.J. SATWARA