Gujarat High Court

Makwana Ranjanben Wd/O Rasikbhai ... vs Owner Of Jeep No Gj-18-A-2481, ... on 19 October, 2022

Bench: Hemant M. Prachchhak

     C/FA/2598/2010                             JUDGMENT DATED: 19/10/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2598 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

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 or any order made
      thereunder ?

=======================================
 MAKWANA RANJANBEN WD/O RASIKBHAI SADABHAI & 4 other(s)
                             Versus
OWNER OF JEEP NO GJ-18-A-2481, HIRENKUMAR HARGOVANBHAI
                           & 1 other(s)
=======================================
Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellants
for the Defendant(s) No. 2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
=======================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK


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      C/FA/2598/2010                        JUDGMENT DATED: 19/10/2022




                       Date : 19/10/2022

                        ORAL JUDGMENT

1. This appeal is filed by the appellants - claimants seeking

enhancement of the compensation amount awarded by the

Motor Accident Claims Tribunal (Aux.-I), Mahesana (hereinafter

referred to as "the Tribunal") vide impugned judgment and

award dated 20.11.2009 passed in M.A.C.P. No.391 of 2005,

whereby the Tribunal has partly allowed.

2. Brief facts of the present case are that on 25.04.2005,

deceased Rasikbhai Sadabhai was travelling in a jeep bearing

registration no.GJ-18A-2481 from Gozaria to Lakhavad, which

came to be driven in rash and negligent manner and at that time

at about 9.00 p.m., near curve of Village Meu, the said jeep

dashed with one stationary trolly standing, due to which

Rasikbhai sustained fatal injury and succumbed to the injury.

Hence, the legal heirs of the deceased have filed claim petition

before the Tribunal. The Tribunal, after evaluating the pleadings

and evidence tendered by the parties, partly allowed the claim

petition and awarded compensation.

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

3. It came to be held by the Tribunal that said amount was

ordered to be awarded to the deponents. Not being satisfied with

the compensation amount, this appeal has been filed.

4. Heard Mr.Yogendra Thakore, learned counsel appearing for

the appellants and Mr.Vibhuti Nanavati, learned counsel

appearing for the respondent - Insurance Company.

5. Mr.Thakore, learned counsel appearing for the appellants

has submitted the same facts which are narrated in the memo of

appeal. He has submitted that it is a case of composite

negligence and the deceased was a third party and his legal

heirs can claim compensation and the same issue decided by

this Court in the case of Kusumben Vipinchandra Shah Vs.

Arvindbhai Narmadashankar Raval reported in 2007 (1) GLH 601.

He has submitted that the insurance policy at Exhibit 24 of the

opponent vehicle is comprehensive policy and deceased being a

third party is covered and hence, the insurance company is liable

to pay the whole compensation. On all these grounds, he has

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

submitted that the appeal deserves to be allowed the impugned

judgment and award deserves to be quashed and set aside.

6. As against that Mr.Nanavati, learned counsel appearing for

respondent - Insurance Company has supported the impugned

judgment and award passed by the Tribunal. He has submitted

that so far as the income of the deceased is concerned, there is

no cogent and proper proof or evidence led by the appellants

about the income of the deceased and the compensation

awarded by the Tribunal is just and proper and, therefore, no

interference is called for.

7. No other or further submissions, grounds or contentions

have been raised by the learned counsel appearing for the

parties.

8. The controversy involved in the present appeal is in narrow

compass that whether the Tribunal was justified in passing the

impugned judgment and award considering the liability on the

part of the Insurance Company only to the extent of Rs.50,000/-

or not. Whether the Tribunal has committed any error while

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

awarding just and adequate compensation to the claimants or

not. I answered accordingly.

8. Having considered the averments made in the appeal,

submissions made by the learned counsel appearing for both the

sides and considered the facts of the case and perused the

record and proceedings and perused the impugned judgment

and award, it appears that while deciding the liability, the

Tribunal has held limited liability on the part of the Insurance

Company at Rs.50,000/- and the liability on the part of the owner

at Rs.5,04,160/-. Considering the insurance policy at Exhibit 24,

it clearly reflects that it is a package policy and the same is not

limited liability of the passengers of Rs.50,000/- as he has paid

additional amount towards liability of the passengers. Therefore,

the findings recorded by the Tribunal with regard to issue no.2

of the impugned judgment and award, the present appeal

deserves consideration and the impugned judgment and award

deserves to be quashed and set aside. Considering the fact of

the case, it appears that the Tribunal, while dealing with issue

no.2, has recorded the findings to the effect that the policy

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

premium of unnamed 10 passengers are paid and risk upto the

limit of Rs.50,000/- for each passenger is covered. This finding

recorded by the Tribunal is absolutely unjustified and against

the documentary evidence produced on record which clearly

reflects that it is a package policy and no restriction on the

liability as it is limited to the extent. The finding recorded by the

Tribunal is against the documentary evidence where the policy of

the insured vehicle at Exhibit 24 reflects that it is a package

policy and, therefore, the finding recorded by the Tribunal is

erroneous and unjust and the same is required to be quashed

and set aide.

8. Considering the ratio laid down by the Hon'ble Supreme

Court in the case of Sarla Verma and others Vs. Delhi

Transport Corporation and another, (2009) 6 SCC 121 and

National Insurance Company Limited Vs. Pranay Sethi and

others, (2017) 16 SCC 680, I am of the considered opinion

that the appellants are entitled to get additional amount of

compensation considering the income of the original claimant

(deceased) at Rs.32,760/- p.a plus 40% rise and appeal requires

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

to be allowed and the impugned judgment and award requires to

be substituted by enhancing the amount of compensation.

Considering the ratio laid down by the Hon'ble Supreme Court in

the case of Magma General Insurance Company Limited Vs.

Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC

130, United India Insurance Company Limited Vs.

Satinder Kaur alias Satwinder Kaur and others, AIR 2020

SC 3076 and New India Assurance Co. Ltd. Vs. Smt.

Somwati and others, (2020) 9 SCC 644, the appellants are

entitled to get consortium. Therefore, the compensation is

enhanced under the following heads:-

Future loss of Income Rs.5,15,970.00 Rs.2730 x 12 = Rs.32760 + Rs.13104 (40% rise) = Rs.45864 - Rs.11466 (1/4th deduction) = Rs34398 x 15 Loss of consortium Rs.1,60,000.00 Loss of estate Rs.15,000.00 Funeral expenses Rs.15,000.00 Amount Rs.7,05,970.00 Less: liability awarded by the Tribunal Rs.50,000.00 Additional compensation Rs.6,55,970.00

Accordingly a sum of Rs.6,55,970/- as additional

compensation requires to be awarded towards future loss of

C/FA/2598/2010 JUDGMENT DATED: 19/10/2022

income, which is just and reasonable compensation and the

same is awarded in addition to Rs.50,000/- awarded by the

Tribunal. However, the appellants are entitled to the enhanced

amount of compensation of Rs.6,55,970/- along with interest at

the rate of 6% from the date of application till its realization.

9. For the foregoing reasons, the appeal is allowed in part.

The judgment and award dated 20.11.2009 passed by the Motor

Accident Claims Tribunal is hereby quashed and set aside. The

appellants - claimants are entitled to get a sum of Rs.6,55,970/-