The Oriental Insurance Company ... vs Raman Purshothaman Nair
2022 Latest Caselaw 4886 Guj

     C/FA/2239/2015                               CAV JUDGMENT DATED: 20/05/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2239 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

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 ?

========================================================== THE ORIENTAL INSURANCE COMPANY LIMITED Versus RAMAN PURSHOTHAMAN NAIR & 7 other(s) ========================================================== Appearance:

MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1

MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1,2,3,4 MR PALAK H THAKKAR(3455) for the Defendant(s) No. 8 RULE SERVED for the Defendant(s) No. 5,6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 20/05/2022

CAV JUDGMENT

1. The present First Appeal is preferred by the Oriental Insurance Company Ltd. under Section 173 of the Motor Vehicles Act, 1988 , by being aggrieved and dissatisfied with the judgment and award passed in

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Motor Accident Claims Petition No.1597 of 1998, Vadodara dated 27.06.2015, by which the Tribunal has awarded the amount of compensation Rs.5,38,468/- with 9% interest p.a. from the date of the claim petition to the claimants by holding the Opponent Nos.1, 2 & 3 jointly and severely liable and against the Opponent Nos. 4 & 5, the claim is rejected. Therefore, the present appeal is preferred by the Insurance Company.

2. The brief facts of the case are as such that, on 04.02.1998, the Deceased-Raman Sundaresan Pillai was one of the occupants in the Jeep bearing registration No. GJ-16- C-4202 proceeding towards Rajpipla from GSL (India) Limited, from its work and registered office at Amletha village, Taluka Rajpipla, and the driver of the said Jeep was driving the Jeep at a moderate speed and on the correct side of the road to Rajpipla and when, they had reached near Taropa village bus stand board, the Opponent No.1 had come from the opposite direction by driving the truck bearing registration No.GJ-3-U-5020 in rash and negligent manner and also in excessive speed which resulted into the accident as the Opponent No.1 has lost his control over the steering of the truck. Therefore, the truck rushed on the wrong side of the road and dashed against the right front portion of the Jeep. Therefore, the Jeep was turned turtle resultantly, the Deceased-Raman sustained serious injuries and ultimately succumbed to the injuries. Therefore, legal representatives of the deceased has filed the claim petition to get compensation. F.I.R is filed against the Opponent No.1 and charge-sheet is also filed against the Opponent No.1 before the concerned Court. The Deceased -Raman was aged about 30 years at the time of accident and he was serving as a Steno cum typist with GSL (India) Ltd. Amletha, Taluka Rajpipla and he was paid a monthly salary of Rs.3200/- plus HRA at the rate of 20%, PF at the rate of 10% of basic

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salary, LTA at the rate of 4% of the basic salary, medical allowance at the rate of 5% of the basic salary and he was also entitled to bonus at the rate of 8.33% of basic salary. Therefore, it is averred by the claimants in the petition that his salary can be considered at least Rs.3,500/- p.m. and his annual income would be Rs.63,515/- and the prospective annual income could be easily assessed to the tune of Rs.90,000/- p.a. Therefore, the claim petition is filed to get compensation of Rs.6,00,000/-.

2.1 The Tribunal has issued notices to the Opponents. The Opponent Nos. 1, 2 & 4 have not appeared before the Tribunal to contest the claim petition. In response to the notice, Opponent No.3- Oriental Insurance Company has appeared and contested the claim by filing written statement at Exh. 24 by denying the claim of the claimants in toto. In response to the notice, the Opponent No.5 - New India Assurance Com. Ltd. has contested the claim petition by filing written statement at Exh.33 and denied the claim in toto. Thereafter, the Tribunal has proceeded further by framing issues from the pleadings of the parties for its determination. The claimant No.4 - R. Mohanan Pillai has also deposed before the Tribunal at Exh.40, who was cross-examined by the advocate for the Insurance Company and documentary evidence like copy of the F.I.R at Exh.46 & 53, copy of panchnama at Exh.54, copy of inquest panchnama at Exh. 55, copy of P.M. report at Exh.47 and 56, copy of appointment letter of deceased issued by GSL (India) at Exh.43, original slip of salary drawn by the deceased at Exh.45 and the Opponent No.5 had also produced copy of insurance policy in respect of Jeep bearing registration No.GJ-16-C-4202 at Exh.52. Thereafter, the Tribunal has heard the advocates of respective parties and decided the claim petition by holding Opponent Nos. 1, 2 and 3 liable to pay the amount of compensation to the tune of Rs.5,38,468/- with 9% interest p.a. from the

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date of claim petition. Therefore, the present appeal is preferred by the Insurance Company.

3. Learned advocate Mr. Rathin P. Raval for the Appellant-Insurance Company has contended that the present appeal is filed mainly on the ground of aspect that the claimants are not dependents of the deceased. He has submitted that examination-in- chief of one of the claimants, which is carried out at Exh.14 and in the cross-examination, the claimant has admitted that he is not dependent. Therefore, though they can be considered as legal representative, the claimants are not entitled to get the compensation as dependent. He has further submitted that, therefore, only on this count, his appeal is required to be allowed. He has relied upon the judgment rendered in the First Appeal No.2188 of 2002 dated 22.01.2016, more particularly, Paras 10 and 32 of that judgment. He has submitted that the claimants in the present case cannot be considered as dependent. Therefore, the claim petition is required to be dismissed on that ground only. He has further relied upon the judgment of Hon'ble Supreme Court in Civil Appeal No.3397 of 2012 dated 04.04.2012, by indicating that the Hon'ble Supreme Court has considered the aspect of personal and living expenses of the deceased in that judgment. Accordingly, that judgment is required to be considered by this Court. He has also relied on the judgment of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, reported in (2009) 6 SCC 121, by indicating that by this judgment, the mode of calculation of dependency loss is fixed, which is now followed by many Courts. Therefore, he has submitted that the Tribunal has committed gross error in considering the deduction in the personal expenses. He has also submitted that sisters and brothers would not be considered as dependent in view of the above mentioned judgment. Mr. Raval has also submitted

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that by relying on the judgment reported in 2015 2 GLH 715 by contending that on the negligence aspect, the Tribunal has committed error by holding truck as solely negligent as accident had occurred on the middle of the road. Therefore, this Court in that judgment has considered negligence to the extent of 80% of the truck driver and to the extent of 20% of the car driver. Therefore, he has submitted that in the present case also, looking to the panchanama and F.I.R., some part of negligence should be awarded to the driver of the Jeep also. He has also relied upon one more judgment in support of his contention that the brothers could not be said to be dependent on the earning of the deceased by relying on the judgment of the Hon'ble Apex Court in the case of Gyan Chand v. Gulab Singh. reported in 2016 (16) SCC 590

4. Per contra, learned advocate Mr. Palak H. Thakkar appearing for the Insurance Company-Respondent No.8 has submitted that company is exonerated from the liability to pay the amount of compensation as the truck is coming on wrong side and has collided with the Jeep. Therefore, the Tribunal has rightly found that negligence part by considering the panchnama and by considering the aspect that the width of the road is shown 20 feet and having 5 feet kachcha road and the Jeep is lying 12 feet away from the western edge of the road in turtled condition. The truck is found 90 feet away from the place and its front side is facing towards western side and back side is facing towards eastern side and its front side is found damaged. The truck is loaded with sand and cane- baskets of tomatoes and the wheel marks were also seen on the road up to 37 feet away from the Jeep which means that the truck was found lying on the wrong side i.e. on the western side of the road. The truck was also found damaged on the cleaner side and driver side also. F.I.R. is also lodged by one of the occupants of the jeep, which clearly revealed that

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both the vehicles were moving in different directions. Therefore, the Tribunal has rightly found that the driver of the truck was sole negligent. Therefore, that finding is just and proper and also other aspects of the matter. Since the Insurance Company is not held liable, Mr. Thakkar has not submitted further on any other ground.

5. Learned advocate Mr. Mohsin M. Hakim for the claimants has submitted that the term legal representative is defined in the Motor Vehicles Act, but nowhere dependent is defined in the Motor Vehicles Act. He has further submitted that if we look at the provisions of Section 166 of the Motor Vehicles Act, which is providing that the legal representative of the deceased can file the application for compensation. The Section 166 of the Motor Vehicles Act, 1988 is reproduced as under for ready reference:-

"(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 1[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation

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under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] 2[***] 3[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."

Mr. Hakim has also relied upon the judgment of this Court in the First Appeal No.655 of 2011, more particularly, paras 8 and 9 of that judgment and has submitted that the Division Bench of this Court has considered about the aspect of personal accident policy. He has also relied upon the judgment for the aspect that whether the present claimants can be considered, who are brothers of the deceased, as a dependent or not ? He has relied upon the judgment of this Court rendered in the First Appeal No.1792 of 2020 dated 09.08.2021, more particularly, he has relied on Paras 9, 11, 12 and 2.5 and submitted that to maintain the claim petition, it is sufficient for the claimant to establish that there is loss of dependency and every legal representative, who suffers on account of death of a person in motor vehicle accident have remedy for realization of compensation. He has further relied on the judgment of Hon'ble Apex Court in the case of Smt. Manjuri Bera v. Oriental Insurance Co. Ltd reported in AIR 7 SC 1474 where the Hon'ble Supreme Court has said that the married daughter of the deceased is legal representative under Section 166 though she is not dependent on the deceased. He has further relied on the judgment of Hon'ble Apex Court in the case of N. Jayasree and Ors. v. Cholamandalam MS General Insurance Co. Ltd. reported in AIR 2021 SC 5218, more particularly, Paras 18 to 21 where the Supreme Court has categorically observed that we should remember that in an Indian family, brothers, sisters and brother's children and sometimes foster children live together and they are dependent upon breadwinner of the family and if the breadwinner is killed on account of motor vehicle accident, there is no justification to deny them compensation relying upon

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the provisions of Fatal Accident Act, 1855. Therefore, he has submitted that the Hon'ble Supreme Court in another judgment in the case of National Insurance Company Limited v. Birender and others reported in AIR 2020 SC 434 has considered the aspect of legal representative in view of Section 166 of the Motor Vehicles Act and the Supreme Court has found that even major, married and earning sons of the deceased would be covered by expression of legal representative of the deceased. He has also relied on the judgment of Hon'ble Apex Court in the case of Montford Brothers of ST. Gabriel and another v. United India Insurance and another reported in 2014 3 SCC 394, more particularly, Paras 13 to 19. He has submitted that successor to the trushteeship in the trust property can be considered as legal representative. He has further submitted that the Indore Bench of the Madhya Pradesh High Court has also decided similar issue which is reported in AIR 2008 MP 47 wherein Paras 29 and 13 are very relevant where the "Gurubhai" of the Ashram is also considered as legal representative and they are entitled to maintain an application under Section 166 of the Motor Vehicles Act. Therefore, he has submitted that the Tribunal has not committed any error on the aspect of entitlement of the claimants as legal representative in view of Section 166 of the Motor Vehicles Act to file the claim petition and get compensation. He has further submitted that the income and other aspects, which is considered by the Tribunal is squarely in consonance with the various judgments of the Hon'ble Apex Court in the case of National Insurance Co. Limited vs. Pranay Sethi and Ors. reported in (2017) SCC 1270 (ii) Sarla Verma v. Delhi Transport Corporation, repoted in (2009) 6 SCC 121 (iii) Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in 2018 SCC 1546 (iv) New India Assurance Co. Ltd. v. Somwati reported in 2020(9) SCC-644. Therefore, on the aspect of quantum also, there is no merit in the appeal

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of the Insurance Company. On the aspect of negligence, he has categorically submitted that as contended by Mr. Thakkar, the Tribunal has rightly considered the panchnama and also considered the F.I.R., which is given by one of the passenger traveling in the same jeep, who can be considered as eye-witness and from the F.I.R. and panchnama, it clearly reveals that the truck has come on the wrong side and in excessive speed and dashed with the Jeep. The impact of the accident is such that the Jeep turned turtle. Therefore, the Tribunal has not committed any error in holding the driver of the truck solely negligent and no contributory negligence can be attributed to the Jeep. However, he has submitted that for the deceased, it is a case of composite negligence as deceased was passenger in the Jeep. Therefore, he has submitted that present appeal is required to be dismissed as there is no substance in the appeal.

6. I have considered the rival submissions made at the Bar. I have considered the Section 166 of the Motor Vehicles Act. I have considered various judgments, more particularly, the judgment which squarely decides the issue about who can be considered as legal representative in view of the language of Section 166 of the Motor Vehicles Act. The judgment of the Hon'ble Apex Court in the case of Smt. Manjuri Bera (supra) where the Hon'ble Apex Court has categorically held that married daughter is entitled to get compensation though she is not dependent on the deceased, but she is legal representative under Section

166. Another judgment which is also required to be considered is Montford Brothers (supra) where the Supreme Court has held to the extent that even collective entity may claim compensation as legal representative by considering the provisions of the Fatal Accident Act, 1855. The Hon'ble Apex Court has also considered once again the issue

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in the case of N. Jayasree (supra). Para 21 of that judgment is reads as under:

"21. Coming to the facts of the present case, the fourth appellant was the motherinlaw of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the motherinlaw to live with her daughter and soninlaw during her old age and be dependent upon her soninlaw for her maintenance. Appellant no.4 herein may not be a legal heir of the 8 AIR 1987 Pat 239 deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition.

(II) Whether the High Court was justified in applying a split multiplier?"

Therefore, in that case, the mother-in-law is considered as the dependent of the son-in-law. The judgment rendered by this Court in the First Appeal No. 1792 of 2020 dated 09.08.2021 in the case of Bajaj Allianz General Insurance Co. Ltd. Pune v. Thakor Jayantibhai Piraji, this Court has held in the following terms in Paras 11.1, 11.2 and 12, which are relevant and being reproduced as under:-

"11.1 The law is well settled that the Motor Accident Act is a beneficial legislation enacted with the object to provide monetary relief to the victim or their family. The Hon'ble Supreme Court from time to time in its decisions referred to above has held that the term 'legal representative' is required to be given a wider interpretation for the purpose of Chapter XII of the Motor Vehicle Act and the interpretation should not be confined only to the spouse, parents and children of the deceased. The Act therefore calls for a liberal and wider interpretation to serve the underlying purpose of the enactment and fulfillment of its legislative intent.

11.2 To maintain a claim petition it is sufficient for the claimant to establish that there is loss of dependency and every legal representative who suffers on account of death of a person in a motor vehicle accident have the remedy for realization of compensation.

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12. In view of the above settled legal position, we are of the view that the opponent no.6 being the real sister of the deceased - Rakesh Shantilal Sharma is entitled to claim compensation in her capacity as a legal representative. We are not inclined to interfere with the findings recorded by the Tribunal. In our opinion, the Tribunal has taken into consideration all the above aspects in accordance with the law as well as per the ratio laid down by the Supreme Court in various decisions."

This Court has considered that real sister of the deceased is entitled to claim compensation in our capacity as legal representative. Therefore, I found that the Tribunal has not committed any error by considering the present claimants as legal representative.

6.1 Now the second issue is about the negligence aspect. I have considered that discussion of the Tribunal in Paras 14, 15 and 16. I found that the Tribunal has rightly considered the panchnama and after considering width of the road which is 22 feet and having 5 feet Kachcha road and the vehicle damaged from the front side, the brake marks found on the road and also the position of the vehicle at the time of panchnama, clearly speaks about the role of both the vehicles. More particularly, if we consider the F.I.R. lodged by one of the passengers driving in the Jeep, clearly reveals that the truck has come on the wrong side as somehow the driver of the truck lost control over the vehicle. Therefore, the truck has dashed with the Jeep and truck was in so much speed that Jeep has immediately turned turtle and due to that, several passengers have received injuries as well as some of them have succumbed to the injuries. This version of the F.I.R. is well supported by the panchnama. Therefore, there is no reason to disbelieve the aspect, more particularly, considering the recent judgment of the Hon'ble Apex court in the case of Renu Rani Srivastava v. New India Assurance Company reported in AIR 2019 SC 5719 and also considering the principle of res ipsa loquitur. The things fixed for itself and looking to the panchnama, I have no hesitation that

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driver of the truck is solely negligent and, therefore, the Tribunal has not committed any error. Now considering the aspect of deduction of dependency. The Tribunal has rightly considered the issue of dependency in Para 17 of the impugned judgment. The Tribunal after considering 1/2 deduction towards income of the deceased as the deceased was unmarried and in view of the judgment of Hon'ble Apex Court in the cases of Sarla Verma (supra) and Pranay Sethi (supra), there is no error committed by the Tribunal. The Tribunal has rightly considered the multiplier of 17 after considering the judgment of Sarla Verma (supra) as the deceased was aged 30 years. At the time of accident, the deceased was getting salary of Rs.3,356/- and as the deceased was salaried employee and was aged 30 years, in view of the Pranay Sethi (supra) judgment, the Tribunal has rightly added 50% towards prospective income. Therefore, considering the judgment in totality, I found there is no error committed by the Tribunal. On the contrary, it is found that the Tribunal has not awarded some amount under the head of consortium and amount which is awarded towards funeral Rs.10,000/- should be more in view of the amount awarded under the head of loss of estate i.e. Rs.15,000/- which can also be more in view of the judgment of Hon'ble Apex Court in the case of Somwati (supra). However, since the claimants have not preferred any appeal, and claimants have not argued to enhance any amount of compensation, therefore, that aspect has not been considered. Therefore, as discussed above, that the Tribunal has given cogent and convincing reasons while considering the claimants as dependent of the deceased and while considering the issue regarding negligence as well as quantum of the compensation, the Tribunal has not committed any error and has considered the documentary evidence available on the record appropriately and also considered the judgment of Pranay Sethi (supra), Sarla Verma (supra) and other relevant judgments which are cited at the

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Bar.

7. For the reasons recorded above, the following order is passed.

7.1 The appeal is dismissed, with no order as to costs.

7.2 The amount which is deposited pursuant to the earlier order passed in the present appeal which is lying in the FDR and/or before the tribunal shall be paid to the claimants with accrued interest within four weeks from the receipt of the copy of this order by the Tribunal after due verification and by account payee cheque.

7.3 Record and proceedings be sent back to the concerned Tribunal forthwith.

(SANDEEP N. BHATT,J) MANISH MISHRA