Gujarat High Court
United India Insurance ... vs Chandrashekhar Mallaya (Since ... on 22 July, 2022
Bench: A.J.Desai
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2687 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 ?
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UNITED INDIA INSURANCE COMPANYLTD
Versus
CHANDRASHEKHAR MALLAYA (SINCE DECEASED)
===============================================================
Appearance:
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Defendant(s) No. 1.1
RULE SERVED for the Defendant(s) No. 1.2,1.3,1.4
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/07/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. Insurance Company as appellant has filed this appeal
under Section 173 of the Motor Vehicles Act, 1988 ("the Act"
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
for short) challenging the judgment and award dated 23.3.2010
passed by the Motor Accident Claims Tribunal (Auxi.) Gondal
Camp at Jetpur in M.A.C.P.No.134 of 2001. By the judgment
and award dated 23.3.2010, the claim petition of the original
claimants came to be allowed in part and compensation of
Rs.29,76,680/- has been awarded with simple interest @ 9%
p.a. from the date of the application till its realization.
2. The brief facts are:
2.1. On 4.12.2000, deceased Chandrashekhar Mallaya was
travelling in a matador bearing registration No.GJ-3-9302.
When the matador reached near village Pithadia between
Virpur and Jetpur at about 15:30 hours, the bus bearing
registration No.GJ-6-W-5496 came from the opposite direction
and in an attempt to overtake another vehicle dashed with
matador in which Chandrashekhar Mallaya was travelling.
2.2. It was case of the original claimants that the driver of
the bus was driving his vehicle in rash and negligent manner
without following traffic rules and therefore, the accident
occurred. In the said accident Chandrashekhar Mallaya along
with the driver of matador died and many other passengers
were injured. For the said accident, legal heirs of
Chandrashekhar Mallaya (hereinafter referred to as "deceased")
filed Claim Petition under Section 166 of the Act, seeking
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
compensation of Rs.40 lakhs.
3. The Tribunal after hearing the parties and upon
appreciation of evidence, held that both the vehicles are
involved in the accident and driver of both the vehicles are
equally responsible/negligent for the happening of the said
accident. The Tribunal held both the drivers (matador and
bus) as equally negligent (50%-50%) for occurrence of the
accident. For the issue in relation to liability, the Tribunal
held all the opponents are liable for the payment of
compensation. As noticed earlier, the Tribunal awarded total
compensation of Rs.29,76,680/- under different heads as under:
Loss of dependency 26,000 x12x13 = 40,56,000-00
Less towards amount for self expenses(1/3rd)= 13,52,000-00
Total = 27,04,000-00
Add: towards amount of loss of estate and 40,000-00
Consortium etc.
Amount of funeral expenses 5,000-00
An amount of medical expenditure = 2,27,680-00
---------------------
Total = 29,76,680-00
---------------------
4. Aggrieved by the quantum of compensation awarded, the
Insurance Company has filed present appeal.
5. We have heard Mr. H.G.Mazmudar, learned advocate for
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
the appellant- Insurance Company and Mr. Tushar Sheth for
respondents - original claimants.
6. The Insurance company of both the vehicles has not
disputed the issuance of policy and its existence at the time of
accident. Negligence and liability, not being challenged by the
Insurance Company, presence of respondent No.3 (owner of
bus) and respondent No.4 (owner of matador) is dispensed
with. Record and Proceedings of the Tribunal have been
perused.
7. Appearing for the appellant, learned advocate Mr.
H.G.Mazmudar, contended that the Tribunal committed
serious error in awarding higher compensation. The deceased
at the time of accident was Dy. Manager in Corporation Bank
and had earned salary of Rs.17,395/- for the month of
November, 2000 (Exh.85). For the month of December, 2000
(month of accident) he had drawn the same salary. However,
the Tribunal without any basis on a presumption that, he
would have earned salary of Rs.34,708/- on attaining the age
of superannuation has considered higher salary of Rs.26,092/-
p.m. He further contended that the Tribunal took into
consideration the prospective salary of Rs.34,708/- p.m. and
multiplied the same by 3 and then divided it by 2 to arrive at
salary of Rs.26,092/- p.m. Further, from salary, though the
tax (TDS) is required to be deducted the same has not been
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
done and thus the award of the Tribunal is erroneous. He thus
contended to reduce the compensation and to allow the appeal.
8. Per contra, Mr. Tushar Sheth, learned advocate for the
respondents - original claimants contended that the Tribunal
has correctly appreciated the evidence on record and thereafter
assessed the income of the deceased. He contended that the
officer of the Corporation Bank was examined who produced
the statement showing salary earned by the deceased at the
time of accident and he would have earned at the time of
retirement. No contrary evidence is on record to suggest that
the deceased would not have earned more income at the time
of retirement if he would have survived. The Tribunal after
taking into consideration the income earned by deceased at the
time of retirement and its probability has correctly applied the
formula prevalent at that stage. Thus, the income assessed by
the Tribunal of Rs.26000/- p.m. is based on evidence on record
and no interference is called for. Relying upon the decision of
Hon'ble Supreme Court in the case of Sarla Verma (Smt) &
Ors. vs. Delhi Transport Corporation & Anr. reported in (2009)
6 SCC 121 and National Insurance Co. Ltd. vs. Pranay Sethi
and Ors. reported in (2017) 16 SCC 680, he further contended
that the consortium, funeral expenses and loss of estate
awarded by the Tribunal needs enhancement. Referring to
the medical certificate and the period of hospitalization, he
contended that no compensation has been awarded for Pain,
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
Shock and Sufferings which is erroneous.
9. Having heard learned advocates for the parties and upon
perusal of the judgment and award of the Tribunal as well as
the Record and Proceedings of the Tribunal, we are of the
view that following points would rise for our consideration.
(i) Whether Tribunal was correct and justified in awarding
the total compensation of Rs.29,76,860/- with interest @ 9%
from the date of the application till realization?
(ii) What order?
10. The facts relating to the accident which occurred on
4.12.2000 as also issuance of policy to the owner of both the
offending vehicles is not in dispute. The liability has not been
disputed by the Insurance Company. The above aspects have
been extensively dealt with by the Tribunal, and therefore, the
same are not repeated herein.
Point No.1
The Tribunal has noticed that the deceased was working
as Dy. Manager in Corporation Bank and had salary of Rs.
17,395/- (Exh-85), per month. An officer of the bank was
examined, who had produced a statement showing income of
the deceased at the time of accident and the salary deceased
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
would have earned upon attaining the age of superannuation.
It was noticed by the Tribunal that the deceased was 48 years
of age at the time of accident and if he would have attained
the age of superannuation at 58 years, 10 years service can be
considered remaining at the time of accident. The Tribunal
further multiplied the current income by 3 and divided by 2 to
arrive at prospective income of Rs.26,092/-. Thus, the
Tribunal arrived at Rs.26,000 (round off) p.m. multiplied the
same by 12 and again multiplied by 13 to arrive at future
prospective income. The Tribunal further after deducting the
1/3rd of personal expenses and allowing the compensation
under the head of loss of estate, funeral expenses and medical
expenses allowed total compensation of Rs.29,76,680/-. As can
be seen from the record that the Tribunal has arrived at
monthly salary of Rs.26,000 which is based on the salary slip
and the statement of Bank Officer showing future salary, if the
deceased would have attained the age of superannuation. The
examination in chief at Exh.115 of Bharat Bhushan
Yogendraprasad records that if the deceased would have
survived, he would have earned Rs.34,700/- p.m. at the time
of retirement. Further, the said amount was multiplied by 3
and deducted by 2, as per the formula prevalent at that stage
to arrive at monthly income. So in our opinion, the income
per month assessed by the Tribunal is based on evidence on
record and there is no error committed by the Tribunal.
However, as no tax has been deducted from the salary of the
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
deceased, we deem it appropriate to deduct 10% TDS to arrive
at net income. As the deceased was 48 years, multiplier of 13
is correctly applied. Therefore, in our opinion, the
dependency loss would be as under:
"Rs.26,000 - Rs.2600 (10%tax)= Rs.23,400 - Rs.7800 (1/3
personal expenses) = Rs.15,600 x 12 = Rs.1,87,200 p.a. x 13
(multiplier) = Rs.24,33,600/-."
11. As the deceased has been survived by two dependents,
consortium of Rs.88,000/- in our opinion would be appropriate.
In view of decision in the case of Sarla Verma (Smt) & Ors.
vs. Delhi Transport Corporation & Anr. reported in (2009) 6
SCC 121 and National Insurance Co. Ltd. vs. Pranay Sethi and
Ors. reported in (2017) 16 SCC 680, loss of estate and funeral
expenses of Rs.16,500/- each would be appropriate. It is not
in dispute that the deceased remained under hospitalization for
20 days and underwent treatment. Considering the period of
hospitalization, the surgeries underwent and the treatment, we
deem it appropriate to grant Rs.1,00,000/- towards pain, shock
and sufferings. The amount of Rs.2,27,680/- awarded under
Medical expenses is appropriate. Therefore, the respondent-
original claimants would be entitled to total compensation as
under:-
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
Rs.24,33,600 Loss of dependency
Rs.88000 Consortium
Rs.16,500 Funeral Expenses
Rs.16,500 Loss of Estate
Rs.1,00,000 Pain, shock and sufferings
Rs.2,27,680 Medical Expenses
Rs.28,82,280 Total
12. In view of the above, we proceed to pass following order
O R D E R
(i) The appeal of Insurance Company is partly allowed.
(ii) Judgment and award dated 23.3.2010 passed in
M.A.C.P.134/2001 is substituted and total compensation
Rs.28,82,280 is awarded. The difference amount (Rs.29,76,680
- Rs.28,82,280) = Rs.94,400/- shall be refunded to the
Insurance Company along with interest accrued, within a
period of eight weeks from the date of receipt of copy of this
order.
(iii) The amount deposited by the Tribunal shall be disbursed
in the account of widow- Savita Chandrashekhar Mallay
(respondent NO.1) through RTGS.
C/FA/2687/2010 JUDGMENT DATED: 22/07/2022
(iv) Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith.
However, there shall be no order as to costs.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
