Gujarat High Court
Bajaj Allianz General Insurance ... vs Dineshbhai Saburbhai Dangi on 8 March, 2022
Bench: Hemant M. Prachchhak
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1614 of 2021
With
R/FIRST APPEAL NO. 1616 of 2021
With
R/FIRST APPEAL NO. 1564 of 2020
With
R/FIRST APPEAL NO. 1331 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
Versus
DINESHBHAI SABURBHAI DANGI
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR MAULIK SONI for the original claimants
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 08/03/2022
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
common judgment and award dated 8.11.2019
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
passed by the Motor Accident Claims Tribunal
(Aux), Dahod at Limkheda in MACP no.1944/17
and 1945/17, the insurance Companies of both
the vehicles involved in this accident have
preferred these respective appeals under
Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act"). First
Appeal no.1614/21 is filed by Bajaj Allianz
General Insurance Company Limited challenging
the judgment and award passed in MACP
no.1944/17, First Appeal no.1616/21 is filed
by Bajaj Allianz General Insurance Company
Limited challenging the judgment and award
passed in MACP no.1945/17, First Appeal
no.1331/21 is filed by Reliance General
Insurance Company Limited challenging the
judgment and award passed in MACP no.1945/17
and First Appeal no.1564/20 is filed by
Reliance General Insurance Company Limited
challenging the judgment and award passed in
MACP no.1944/17.
2. As the same set of evidence is considered by
the Tribunal while dealing with both the
original claim petitions and the contentions
raised by the learned advocates appearing for
the respective parties relate to the same
accident, all the 4 appeals were heard
together and are disposed of by this common
judgment and order.
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
3. Heard Mr. Vibhuti Nanavati, learned advocate
for the appellant-Bajaj Allianz General
Insurance Company Limited, Mr. Rathin P.
Raval, learned advocate for the appellant-
Reliance General Insurance Company Limited and
Mr. Maulik Soni, learned advocate for the
original claimants in all the appeals. With
consent of all the learned advocates appearing
for the respective parties, all the 4 appeals
are taken up for its final disposal forthwith.
4. Following facts emerge from the record of
these appeals:-
4.1 That the accident took place on 10.2.2017 near
Village Piplod Panchela, situated in Dahod. It
is the case of the original claimants that the
deceased - Savitaben Mangalsinh Bariya was
going on motorcycle bearing registration
no.GJ-20 AD-5025 along with the original
claimant of other claim petition i.e. her
husband - Mangalsinh Gulabsinh Bariya on the
motorcycle. It is the case of the original
claimants that at about 09.30 hrs. while the
motorcycle reached the place of accident, a
truck bearing registration no. GJ-02 Z-6742
came from the other side being driven in a
rash and negligent manner and dashed with the
motorcycle because of which the deceased-
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
Savitaben and injured - Mangalsinh were thrown
away and wheel of the truck rolled over the
deceased - Savitaben who died on the spot,
whereas, Mangalsinh who was driving the
motorcycle sustained serious injuries. An FIR
was lodged with Devgadhbaria Police Station
bearing CR no.I-20/2017 and the MACP
no.1944/17 was filed by the heirs of deceased
Savitaben being MACP no.1944/17 and MACP
no.1945/17 was filed by the injured-
Mangalsinh.
4.2 In MACP no.1944/17, it is the case of the
original claimants that the accident occurred
only because of sole negligence of the driver
of the truck involved in the accident. The
original claimants relied upon the school
leaving certificate at Exh.25 to prove the age
of the deceased - Savitaben and relied upon
the oral evidence of the witness at Exh.32 and
contended before the Tribunal that the
deceased was working as a primary teacher in
Singapur Primary School and had monthly salary
of Rs.42,996/-. The Tribunal deducted Rs.200/-
as professional tax and determined the income
of the deceased at Rs.42,796/- and applying
the judgment of the Hon'ble Apex Court in the
case of Sarla Verma Vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121,
considered 50% prospective income and after
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
deducting one-third as personal expenses,
applied multiplier of 15 and awarded a sum of
Rs.86,66,190/- as compensation under the
future loss of income and awarded additional
compensation of Rs.70,000/- under different
heads and thus, awarded total compensation of
Rs.87,36,190/- with 8% interest per annum from
the date of filing of the claim petition till
its realization while partly allowing the
claim petition.
4.3 Similarly, in MACP no. 1945/17 which relates
to the injured-Mangalsinh, the Tribunal
considered the income of the injured based
upon the salary certificate at Rs.50,000/- per
month and after considering the medical
evidence on record, the Tribunal came to the
conclusion that even after the vehicular
accident, the claimants have not suffered any
future loss of income, however, granted
compensation as under:-
Rs.25,000/- Loss of amenities and expectation
of life
Rs.5,000/- Pain, shock and suffering
Rs.39,620/- Medical expenses
Rs.5,000/- Nutritious food, attendant
charges and transportation
charges
Rs.15,000/- Loss of income
Rs.89,620/- Total compensation
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
Thus, the Tribunal granted total
compensation of Rs.89,620/- with 8% interest
per annum from the date of filing of the claim
petition till its realization while partly
allowing the claim petition.
4.4 The Tribunal, while considering the
negligence, has come to the conclusion that
the driver of the truck was solely negligent
in causing the above-referred accident.
However, while deciding the liability, the
Tribunal has come to the conclusion that the
opponents no.1, 2 and 3 being driver, owner
and insurance Company of the truck are liable
for the compensation and being aggrieved by
the same, these appeals are filed.
5. Mr. Vibhuti Nanavati, learned advocate for the
appellant - Bajaj Allianz General Insurance
Company Limited of the motorcycle bearing
registration no. GJ-20 AD-5025, contended that
the Tribunal, having come to the conclusion
that the driver of the truck was solely
negligent, cannot impose liability upon the
appellant - insurance Company i.e. insurance
Company of the motorcycle. Mr. Nanavati
therefore submitted that the insurance Company
of the truck whose driver has been held to be
solely negligent would be liable to satisfy
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
the award. On the aforesaid grounds, Mr.
Nanavati contended that both the appeals filed
by the insurance Company i.e. Bajaj Allianz
General Insurance Company Limited deserves to
be allowed.
6. Mr. Rathin P. Raval, learned advocate for the
appellant - Reliance General Insurance Company
Limited i.e. insurer of the truck involved in
the accident, contended that the Tribunal has
committed an error in coming to the conclusion
that the driver of the truck was solely
negligent. Referring to the FIR at Exh.20 and
the Panchnama at Exh.21, it was contended by
Mr. Raval that the motorcycle was also being
driven in such a manner that the the driver of
the motorcycle one of the appellant-Mangalsinh
could have avoided the accident and on the
aforesaid ground, it was vehemently submitted
by Mr. Raval that even the driver of the
motorcycle should be held to be equally
negligent. It was further contended that while
considering the income certificate of the
deceased at Exh.34, the Tribunal has only
deducted professional tax. Relying upon the
ratio laid down by the Hon'ble Apex Court in
the case of National Insurance Company Limited
Vs. Pranay Sethi & Ors. reported in (2017) 16
SCC 680, it was contended by Mr. Raval that
income would mean gross salary minus tax. It
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
was contended that the salary was Rs.42,996/-
per month, which was liable to be taxed under
the Income-Tax Act, 1961 and therefore, at
least 10% of the said amount is required to be
deducted as income-tax. Mr. Raval further
contended that it has come on record that the
deceased was traveling on the motorcycle as a
pillion rider without helmet which amounts to
breach of law and therefore, the insurance
Company is not liable. Mr. Raval also
contended that as the accident is of the year
2017, considering the Bank rate as existed in
2017, the Tribunal ought to have awarded
interest only at the rate of 7% per annum
instead of 8%. On the aforesaid grounds, it
was contended by Mr. Raval that both the
appeals filed by the insurance Company of the
truck i.e. Reliance General Insurance Company
Limited deserve to be allowed.
7. Mr. Maulik Soni, learned advocate for the
original claimants has supported the impugned
judgment and award and has submitted that no
modification is required and all the appeals,
being merit-less, deserve to be dismissed.
8. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
9. Following questions arise in this group of
appeals:-
[a] Whether the Tribunal has committed any
error in coming to the conclusion that
the driver of the truck bearing
registration no. GJ-02 Z-6742 involved in
the accident was solely accident or not?
[b] Whether the income-tax is required to be
deducted from the salary of the deceased-
Savitaben or not?
[c] Whether the insurance Company of the truck
is not liable to satisfy the claim because
the deceased did not wear a helmet?
[d] Whether the insurance Company of the
motorcycle can also be made liable to
satisfy the award or not?
[e] Whether the Tribunal has committed an
error in awarding interest at the rate of
8% per annum or not?
10. In order to examine the aforesaid questions,
it would be appropriate to refer to the FIR at
Exh.20 and the Panchnama at Exh.21 as well as
the oral deposition of Mahipatsinh at Exh.17.
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
Upon reappreciation of such evidence on
record, it clearly transpires that the
motorcycle was being driven on the correct
side at a moderate speed, whereas, the truck
involved in the accident has dashed from the
front. As rightly noted by the Tribunal,
neither of the insurance Companies and more
particularly, the insurance Company of the
truck has not examined the driver of the truck
though available and therefore, the findings
arrived at by the Tribunal that the driver of
the truck was solely negligent in causing the
accident is not an error and is based on
correct appreciation of the evidence on
record. We find that having come to the
aforesaid conclusion, the Tribunal while
considering the liability issue has also made
the insurance Company of the motorcycle liable
to satisfy the award which, in opinion of this
Court, is an error. Having found that the
driver of the truck was solely negligent, the
insurance Company of the other vehicle i.e.
the motorcycle bearing registration no. GJ-20
AD-5025 cannot be made liable to satisfy the
award.
11. The income certificate at Exh.34 clearly shows
that the deceased was working as a teacher in
Singapur Primary School and the Tribunal has
rightly deducted Rs.200/- as professional tax.
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
However, as held by the Hon'ble Apex Court in
the case of National Insurance Company Limited
Vs. Pranay Sethi & Ors., reported in (2017) 16
SCC 680, income would mean gross salary minus
tax. Mr. Raval, learned advocate for the
insurance Company of the truck is correct in
asserting that the salary of Rs.42,996/- per
month would attract the provisions of the
Income-Tax Act, 1961 that is to say that the
said yearly income was beyond the tax limit
and hence, 10% from the gross salary is
required to be deducted towards income-tax.
12. The contention raised by Mr. Raval, learned
advocate for the insurance Company of the
truck that as the deceased was not wearing a
helmet as a pillion rider deserves to be
negatived following the ratio laid down by the
Hon'ble Apex Court in the case of Mohammed
Siddique & Anr. Vs. National Insurance Company
Ltd. & Ors., reported in (2020) 3 SCC 57.
13. The last contention as regards the interest is
as such a matter of discretion of the Court.
However, considering the fact that the
accident has occurred on 10.2.2017, in
exercise of discretion, we deem it fit to
provide that the interest on the total
compensation be awarded at the rate of 7% per
annum instead of 8% per annum.
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
14. Having come to the aforesaid conclusion, the
original claimants would be entitled to
compensation as under:-
Rs.42,996/- Income per month
- Rs.4,299/- 10% deduction
- Rs.200/- Deduction towards
professional tax
= Rs.38,497/- Income per month
+ Rs.19,248/- 50% prospective income
= Rs.57,745/- Income per month
- Rs.14,436/- one-fourth deduction
= Rs.43,309/- Income per month
X 12 Yearly
= Rs.5,19,708/- Yearly income
X 15 Multiplier
= Rs.77,95,620/- Compensation
+ Rs.70,000/- Compensation under different
heads
= Rs.78,65,620/- Total compensation
15. Thus, the original claimants would be entitled
to total compensation of Rs.78,65,620/-. As
far as the contention of negligence is
concerned, we find that there is no error in
the conclusion arrived at by the Tribunal and
as observed hereinabove, the driver of the
truck has been rightly held to be solely
negligent. Having come to the aforesaid
conclusion therefore, the insurance Company of
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
the motorcycle bearing registration no. GJ-20
AD-5025 involved in the accident cannot be
made liable for the compensation. However, as
aforesaid, we deem it fit to provide interest
at the rate of 7% per annum.
16. Resultantly, First Appeals no.1614/21 and
1616/21 filed by the insurance Company of the
motorcycle i.e. Bajaj Allianz General
Insurance Company Limited involved in the
accident are allowed. The Tribunal shall
refund the amount of compensation deposited by
the appellant - insurance Company i.e. Bajaj
Allianz General Insurance Company Limited as
per the order of this Court dated 5.10.2021
passed in Civil Application no.1 of 2021
forthwith with proportionate interest and
costs, if any.
17. First Appeals no.1564/2020 and 1331/21 are
also partly allowed. The original claimants
would be entitled to compensation of
Rs.78,65,620/- with interest at the rate of 7%
per annum from the date of filing of the claim
petition till its realization. The insurance
Company, namely, Reliance General Insurance
Company Limited would be entitled to refund of
additional amount of Rs.8,70,570/- with
proportionate costs and interest. The impugned
judgment and award in both the claim petitions
C/FA/1614/2021 JUDGMENT DATED: 08/03/2022
stands modified to the aforesaid extent as
provided in this common judgment. However,
there shall be no order as to costs in this
appeal. Registry is directed to remit the
record and proceedings back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
Maulik
