Gujarat High Court
Oriental Insurance Company Ltd vs Neemaben Ashokkumar Mankar on 18 October, 2022
Bench: A.J.Desai
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.792 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 NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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ORIENTAL INSURANCE COMPANY LTD
Versus
NEEMABEN ASHOKKUMAR MANKAR & 5 others
=========================================
Appearance :
MR MAULIK J SHELAT for the Appellant.
MR ABHIRAJ R TRIVEDI for the Defendant No.1.
RULE SERVED for the Defendant Nos.2,3
RULE UNSERVED for the Defendant Nos.5,6
=========================================
CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 9
Downloaded on : Thu Oct 20 20:19:09 IST 2022
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
Date: 18/10/2022
ORAL ORDER
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. This appeal under Section 173 of the Motor Vehicles
Act, 1988 ('the Act' for short) is filed by the appellant - Insurance
Company challenging the judgment and award dated 28.8.2012,
passed by learned Motor Accident Claims Tribunal (Auxiliary),
Vadodara in MACP No.193 of 1995, by which the learned Tribunal
had awarded compensation of Rs.11,74,734/- with interest @ 7.5%
p.a. from the date of filing of the claim petition till realization with
proportionate costs. In the present appeal, the appellant has
restricted its claim against an amount of Rs.3,60,000/- out of the
total amount awarded by the Tribunal as compensation.
2. By an order dated 1.4.2013, appeal was admitted.
Record and Proceedings were called from the Tribunal and
accordingly, the same has been received by the registry and has
been placed before this Court for perusal.
3. The brief facts arise from the record are as under: -
3.1 That on 19.8.1994 at around 5.00 p.m., Ashokkumar K.
Mankar was going to Bharuch, driving his Maruti Van No.GJ-6A-
1189. At that time, opponent No.1, came from opposite direction,
driving Tanker bearing Registration No.MWT 8417, in rash and
negligent manner without following the traffic rules and dashed
with the Maruti Van. Due to the said impact, Ashokkumar K.
Mankar (hereinafter referred to as 'the deceased') sustained
grievous injuries and succumbed to the same.
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
3.2 The claimants being widow, daughter and son of the
deceased filed claim petition under Section 166 of the Act seeking
compensation of Rs.50 Lacs. It was case of the claimants that the
accident occurred on account of sole negligence, of the driver of
the Tanker (opponent No.1). It was further their case that, the
deceased was holding degree of Arts and after completing his
studies, had joined Forbes Campbell & Company Limited, a
company of Tata Group, where he was working as a Manager since
last 10 years. It was further the case of the claimants that the
deceased was drawing monthly salary of Rs.11,400/-. Further,
considering the caliber of the deceased, the Company had
appointed him as General Manager in Z.G. Equipments Private
Limited, which is a subsidiary of the Tata Group, and earning
commission. Accordingly, in all, the deceased was earning
Rs.35,000/- per month at the time of his death.
3.3 Upon notices being issued, the opponents appeared and
filed their respective written statements before the Tribunal and
denied the claim of the claimants. The Tribunal after appreciation
of oral as well as documentary evidence produced on record and
after hearing the parties, was pleased to decide the issues as
under: -
(i) In relation to negligence, the Tribunal held the driver of the
Tanker, sole negligent for the occurrence of the accident.
(ii) In relation to compensation, the Tribunal after considering
various documentary evidence, assess Rs.91,646/- as annual
income of the deceased and considering the decision of the Hon'ble
Supreme Court in the case of Sarla Verma v. Delhi Transport
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
Corporation and another reported in (2009) 6 SCC 121,
added 30% rise in income, for the purpose of future prospective
income. The tribunal deducted 1/10th towards personal expenses
and as he was 45 years of age at the time of accident, adopted
multiplier of 14. The compensation under other conventional heads
was also granted. Accordingly, the Tribunal awarded total
compensation as under: -
Rs.11,54,734/- Dependency benefit
Rs.00,05,000/- Loss of Estate
Rs.00,10,000/- Consortium
Rs.00,05,000/- Funeral expenses
------------------------
Rs.11,74,734 /- Total compensation.
3.4 Aggrieved by the award dated 28.08.2021, present
appeal is filed by the appellant- Insurance company.
4. Heard Mr. Maulik Shelat learned advocate for the
appellant-insurance company and Mr. Abhijit Trivedi for
respondents -original claimants. As the liability has not been
denied, presence of other respondents is not necessary and is
dispensed with.
5. Mr. Maulik J. Shelat, learned advocate appearing for
the appellant - Insurance Company submitted that the Tribunal is
in error in holding the driver of the Tanker solely negligent for the
occurrence of the accident. Referring to Panchnama Exh.57, he
submitted that there was a head-on collision between the two
vehicles and hence, the deceased was also equally negligent for the
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
occurrence of the accident. He further submitted that considering
the damage caused to the Car, as referred in the Panchnama, it is
evident that the Car was also driven with high speed in rash and
negligent manner and, therefore also, the Tribunal is in error in not
holding that the deceased, who was driving the Car, was also
negligent to certain extent.
5.1 In relation to compensation, Mr. Shelat learned
advocate, submitted that the Tribunal is in error in deducting
1/10th towards personal expenses of the deceased, ignoring the
principles laid down by Hon'ble Supreme Court. The Tribunal
ought to have deducted 1/3rd towards personal expenses of the
deceased. He further submitted that the Tribunal is in error in
applying the ratio of the Hon'ble Supreme Court in the case of
Santosh Devi v. National Insurance Company Limited and others,
2012 ACJ 1428 and by observing that in the case on hand, the
number of dependents are three and, therefore, 1/10 is required to
be deducted towards personal expenses. Referring to the decision
of the Hon'ble Supreme Court in the case of National Insurance
Co. Ltd. vs. Pranay Sethi & Ors. reported in (2017) 16 SCC
680, he submitted that since the deceased was survived by three
dependents, 1/3rd amount towards personal expenses, ought to
have been deducted by the Tribunal instead of 1/10. He thus
submitted that the appeal filed by the appellant Insurance
Company may be allowed and the award of the Tribunal may be
modified accordingly.
6. Per contra, learned advocate Mr. Abhiraj Trivedi
appearing for the respondent Nos.1 to 3 - original claimants
referred to FIR Exh.56 and submitted that, it is stated in FIR that
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
Tanker came on wrong side of the road and dashed with the Car of
the deceased. He further submitted that the condition of the Car
implies the impact of the Tanker. It is stated in the panchnama
that the Car was damaged till middle. Therefore, the tribunal is
correct in holding that the driver of tanker was sole negligent for
occurrence of the accident. In relation to compensation, he
supported the award of the Tribunal. He, therefore, submitted that
there being no error in the award passed by the Tribunal on the
issue of negligence as well as compensation, no interference is
called for by this Court.
7. We have heard learned advocates appearing for the
respective parties and perused the Records and proceedings placed
before us. Upon re-appreciation of evidence, it is noticed that, in
the FIR Exh.56, it is recorded that the Car was going on the right
side of the road on highway and at that time, Tanker having
Registration No. MWT 8417 came on wrong side, in rash and
negligent manner and dashed with the Maruti Car driven by the
deceased which resulted into accident. Panchnama at Exh.57, also
records that the front tire of Maruti car was on the road and rear
portion of the Car has been dashed towards footpath touching
highway road. Even the damage caused to the Car supports the
case of the original claimants that because of heavy impact of
Tanker, Car was damaged till its middle body. Conjoint reading of
FIR Exh.56 and Panchnama Exh.57, refers that the Tanker coming
from opposite direction came on wrong side of the road and dashed
with the Maruti Car. Even the damage recorded in the Panchnama
suggests that the Tanker was driven by opponent No.1 in rash and
negligent manner with full speed. Therefore, we are in agreement
with the findings recorded by the Tribunal that, the driver of
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
Tanker No. MWT 8417, was sole negligent for the occurrence of
the accident. In view of the above facts and reasons, the appeal of
the Insurance Company fails on the ground of negligence and the
said contention is hereby negated.
8. In relation to compensation, to assess the income of the
deceased, the Tribunal took into consideration the net salary of the
deceased (after deducting income tax) at Rs.70,497/- p.a. This was
based on the evidence, particularly, Form No.16 issued by the
General Manager (Fin. & Adm.) of Latham India Limited for the
Assessment Year 1993-94. We are of the opinion that the said
amount was rightly considered by the Tribunal as income of the
deceased. As per School Leaving Certificate at Exh.72, the
deceased was 45 years of age at the time of accident. Therefore, in
view of the decision of the Hon'ble Supreme Court in the case of
Sarla Verma v. Delhi Transport Corporation and another
(Supra), 30% rise is to be added towards future prospective
income which in our opinion has been, appropriately considered by
the Tribunal. Admittedly, the deceased was survived by three
dependents - widow and two children, hence, in view of the
decision of the Hon'ble Supreme Court in the case of National
Insurance Co. Ltd. vs. Pranay Sethi & Ors. (Supra), 1/3rd
amount towards personal expenses is to be deducted and therefore,
in our opinion, the Tribunal has erred in deducting 1/10th towards
the same. Hence, to that extent, in our opinion, the Tribunal has
erred in calculating the amount towards future prospective income.
The multiplier of 14 adopted by the Tribunal is proper. Hence, the
claimants would be entitled to dependency loss as under:-
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
Rs.70,497/- (annual income of the deceased) + 21,149 (30% future
rise) = Rs.91,646 - 30,548 (1/3rd towards personal expenses of the
deceased) = Rs.61,098 X 14 = Rs.8,55,372/-.
Further, for other conventional heads, i.e consortium,
loss of estate, and funeral expenses, the Tribunal has awarded an
amount of Rs.20,000/- in total, which in our opinion, is on the lower
side. Hence, the claimants would be entitled to an amount of
Rs.70,000/- under conventional heads.
Hence, the claimants would be entitled for the
compensation as under: -
Rs.8,55,372/- Dependency Benefit
Rs.0,70,000/- Loss of estate, Consortium and
Funeral Expenses
----------------------
Rs.9,25,372/- Total
9. In the result, the present appeal is partly allowed. The
claimants would be entitled to an amount of Rs.9,25,372/- as total
compensation. Since the Tribunal has awarded an amount of
Rs.11,74,734/-, the Tribunal is hereby directed to refund an amount
of Rs.2,49,362/- (Rs.11,74,734 - Rs.9,25,372) in favour of the
appellant Insurance Company forthwith along with the interest
accrued thereon.
The rest of the judgment and award passed by the
learned Tribunal has remained unaltered. Registry is directed to
C/FA/792/2013 JUDGMENT DATED: 18/10/2022
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there shall be no order as
to costs.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT,J)
SAVARIYA
