National Insurance Company ... vs Rupalben Rajnikant Kapadia
2022 Latest Caselaw 8938 Guj

      C/FA/263/2013                                      JUDGMENT DATED: 10/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 263 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.J.DESAI                     Sd/-

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-

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 1     Whether Reporters of Local Papers may be allowed to No
       see the judgment ?

 2        To be referred to the Reporter or not ?                                   No

 3        Whether their Lordships wish to see the fair copy of the                  No
          judgment ?

 4        Whether this case involves a substantial question of law                  No
          as to the interpretation of the Constitution of India or
          any order made thereunder ?

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                      NATIONAL INSURANCE COMPANY LIMITED
                                     Versus
                      RUPALBEN RAJNIKANT KAPADIA & 1 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 2.1,2.2,2.3,2.4
RULE SERVED for the Defendant(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                  Date : 10/10/2022

                                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present appeal under Section 173 read with166 of the Motor Vehicles Act, 1988, the appellant - Insurance

C/FA/263/2013 JUDGMENT DATED: 10/10/2022

Company has challenged the judgment and award dated 27.07.2012 passed in Motor Accident Claims Petition No. 10 of 2006 by the Motor Accident Claims Tribunal (Auxiliary) Surat, by which, the Tribunal has awarded an amount of 30,33,632/- (Rupees Thirty Lacs Thirty Three Thousand Six Hundred Thirty Two Only) with simple interest at the rate of 9% per annum from the date of filing of the claim petition together with proportionate cost of the petition to the original claimants, who are the legal heirs of deceased Mayankbhai Devdharabhai Kapadia, who lost his life in the vehicular accident.

2. The appeal came to be admitted by oral order dated 13.03.2013 and as per the order dated 13.03.2013 in Civil Application for Stay in the captioned First Appeal, the amount awarded by learned Tribunal has already been deposited before learned Tribunal.

3. This Court is in receipt of Record and Proceedings of the aforesaid Motor Accident Claims Petition, which has been placed before this Court for perusal of the same.

4. The short facts arise from the record are as under:

4.1. That on 11.06.2005, the deceased Mayankbhai Kapadia, husband of present respondent No. 2 namely Neelamben Kapadia was travelling in a Wagon-R car bearing registration No.GJ-5-CD-9716 with his friends Pulkitbhai and Jayeshbhai and was going from Gadad to Navsari. The car was being driven by Pulkitbhai and when the car reached near village

C/FA/263/2013 JUDGMENT DATED: 10/10/2022

Adada, Pulkitbhai lost control over the car and the car turned turtle and dashed with the tree on the road side. The deceased sustained injury and died on the spot.

4.2 The First Information Report being No.I-40 of 2005 was registered with Navsari Rural Police Station. The legal heirs of the deceased Mayankbhai filed Motor Accident Claims Petition under Section 166 of the Motor Vehicles Act against the owner, driver and the insurance company of the car and claimed an amount of Rs.35,00,000/- with running interest at the rate of 12% per annum from the date of filing of the petitioner till its realization with cost.

4.3. In response to the summons issued, the Insurance Company, owner and driver filed written statement before the Tribunal. The claimants did produce relevant documents including the income tax returns of the deceased, who was working as share broker.

4.4. Learned Tribunal, by relying upon the said income tax returns of the deceased as well age age of the deceased, who was aged about 35 years and 9 months, granted the aforesaid amount under different heads. Learned Tribunal granted Rs.30,08,632/- under the head of loss of dependancy, Rs.20,000/- under the head of lost of estate and Rs.5,000/- under the head of funeral expenses.

4.5 The Insurance Company, being aggrieved and dissatisfied with the judgment and award, challenged the same by filing present appeal.

C/FA/263/2013 JUDGMENT DATED: 10/10/2022

5. Mr. Vibhuti Nanavati, learned advocate for the appellant, by taking us through the records and proceedings and, particularly, the income tax return at Exh. 47, would submit that learned Tribunal has committed error in calculating income of the deceased at Rs.2,16,971/- since the tax paid by the deceased was not deducted. However, he has fairly submitted that considering the decision in case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in (2017) 16 SCC 680, under which, the legal heirs would be entitled to the future loss of income and under various heads like loss of estate, funeral expenses and consortium, the amount granted by learned Tribunal does not call for interference and the same is just and proper.

6. On the other head, Mr. Hiren Modi, learned advocate for the original claimants, by taking us through would submit that the decision in the case of National Insurance Company Limited Vs. Pranay Sethi (Supra), would submit that the claimants are entitled for more compensation granted by learned Tribunal.

7. We have heard learned advocates appearing for respective parties. Perused the record and proceedings of aforesaid Motor Accident Claims Petition. We have also considered the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi (Supra). Even if we deduct the amount paid by the deceased towards the income tax, while calculating the future aspect of the deceased's capacity of earning in future, he would be

C/FA/263/2013 JUDGMENT DATED: 10/10/2022

entitled for more than what is granted by learned Tribunal under the head of consortium, loss of estate and funeral expenses. The total comes to around the same amount, which has been granted by learned Tribunal. We have also appreciated the submissions made by Mr. Vibhuti Nanavati learned advocate for the Insurance Company and also considered the fairness shown on the part of Mr. Vibhuti Nanavati learned advocate appearing for the Insurance Company about the amount awarded by learned Tribunal. Therefore, considering the oval all aspects, we do not find any reason to interfere with the amount of compensation awarded by learned Tribunal. Hence, present appeal is dismissed.

9. Since the appeal filed by the Insurance Company is dismissed, learned Tribunal is hereby directed to disburse the amount as per the award passed by learned Tribunal.

10. Record and Proceedings be sent back to the concerned Tribunal forthwith.

Sd/-

(A.J.DESAI, J)

Sd/-

(MAUNA M. BHATT,J) *F.S.KAZI.....