Royal Sundaram Alliance ... vs Sushilaben Wd/O Ashokbhai Ramlal ...
2022 Latest Caselaw 8465 Guj

      /FA/357/2019                                JUDGMENT DATED: 27/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 357 of 2019
                                    With
                     R/CROSS OBJECTION NO. 186 of 2022
                        In FIRST APPEAL NO. 357 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.J.DESAI

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

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 ?

========================================================== ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY Versus SUSHILABEN WD/O ASHOKBHAI RAMLAL YADAV ========================================================== Appearance:

MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1 MR. RUSHANG D MEHTA(6989) for the Appellant(s) No. 1 MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1,2,3

UNSERVED REFUSED (R) for the Defendant(s) No. 5 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 27/09/2022

/FA/357/2019 JUDGMENT DATED: 27/09/2022

ORAL COMMON JUDGMENT

(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 Insurance Company as appellant

challenging the judgement and award dated 30/08/2018, passed by the

Motor Accident Claims Tribunal, (Auxi.), 3 rd Additional District Judge,

Bharuch in MACP No.691 of 2013, wherein the Tribunal held

involvement of Maruti Esteem car in the accident and consequently held

the insurance company liable for payment of compensation of Rs.

25,86,820/-, with interest @ rate of 9% per annum and proportionate

costs. Whereas, cross-Objection No.186 of 2022 is filed by the original

claimants, under Order XLI, Rule 22 of the Code of Civil Procedure

seeking enhancement of compensation.

As both these, first appeal and cross-objection are arising out

of the common judgement and award dated 30/08/2018, with the consent

of the learned advocates appearing for the parties, they are heard and

decided together by this common judgement.

2. Short facts, arising from the record, are as under:

/FA/357/2019 JUDGMENT DATED: 27/09/2022

2.1. This is second round of litigation. The accident took place

on 23/10/2013, on old National Highway No.8, Nr.Chhapara Patia within

the jurisdiction of Ankleshwar Police Station, District: Bharuch. A claim

petition under section 166 of the of the act, being MACP No 691 of 2013,

was filed by the original claimants seeking compensation of

Rs.30,00,000/-. It was case of the original claimants that Ashokbhai

Ramlal Yadav (hereinafter referred to as "the deceased") died on account

of rash and negligent driving of driver of Maruti Esteem Car No.GJ-16

AH 6529. It was case of the original claimants that deceased was a

pedestrian and died on account of negligent driving of driver of Maruti

Esteem car.

2.2 On the other hand, it was case of the Insurance company that

the Maruti Esteem car was not involved in the accident and therefore

insurance company of Maruti Esteem car is not liable for payment of

compensation as claimed. In the first round of litigation, the Tribunal,

after adjudication directed Opponent Nos.1 to 3 i.e driver, owner and

insurance company of Maruti Esteem car to pay compensation of

Rs.25,86,820/- with interest at the rate of 9% per annum from the date of

claim petition till its realization with proportionate cost. The said

compensation was awarded under following heads:

        /FA/357/2019                              JUDGMENT DATED: 27/09/2022




     Dependency Loss                                      Rs. 25,31,820/-
     Funeral Expenses                                     Rs.         5,000/-
     Loss of consortium                                   Rs.       25,000/-
     Loss of Estate                                       Rs.       25,000/-
     Total compensation                                   Rs.25,86,820 /-

3. Aggrieved by the aforesaid judgement and award, First

Appeal No.456 of 2016 was filed by the appellant- Insurance company of

Maruti Esteem car challenging its liability. It was the case of Insurance

company in First Appeal No.456 of 2016, that though judgement of the

competent criminal court in Criminal Case No.4792 of 2013, acquitting

driver of Maruti Esteem Car from the charges, was produced at Exhibit-

52, the same was not considered by the tribunal and therefore the award

dated 30/12/2015 is erroneous. This Court in First Appeal No.456 of

2016 vide oral judgement dated 27/07/2016 quashed and set aside the

judgement and award dated 30/12/2015, passed by learned Tribunal in

MACP No.691 of 2013 and remanded the matter to decide afresh, in

accordance with law and on its own merits and after considering the

judgement of the competent criminal court passed in Criminal Case

No.4792 of 2013.

/FA/357/2019 JUDGMENT DATED: 27/09/2022

Pursuant to remand Tribunal, decided the claim petition

afresh vide order dated 30/08/2018, holding that the Maruti Esteem Car

was involved in the accident. In relation to quantum, the tribunal

observed that there is no change in the oral and documentary evidence as

well as circumstances than the first round of litigation. Therefore,

considering the evidence on record, Tribunal awarded total compensation

of Rs.25,86,820/- along with interest at the rate of 9% per annum from

the date of claim petition till realization, with proportionate costs. The

tribunal further held original opponents nos. 1 to 3 jointly and severally

liable for the payment of compensation. Aggrieved by the award dated

30/08/2018, the present appeal is filed by the insurance company.

4. Heard Mr. Dakshesh Mehta, learned advocate for the

appellant- Insurance company and Mr. Mohsin M. Hakim, learned

advocate for the respondents- original claimants. The fact of Maruti Car

insured with insurance company at the time of accident is not in dispute,

and therefore presence of other respondents is not required. Record and

proceedings have been secured and the same is placed for perusal of this

Court.

/FA/357/2019 JUDGMENT DATED: 27/09/2022

5. Appearing for the appellant, Mr. Dakshesh Mehta, learned

advocate submitted that learned Tribunal has committed an error in not

considering the decision of competent criminal court dated 07/03/2015 in

Criminal Case No.4792 of 2013, at Exh.52, in its true spirit and content.

Referring to the said decision, he submitted that in that case, the criminal

court has observed that despite FIR and charge-sheet, no case is made out

against the driver of Maruti Esteem car and therefore, driver of Maruti

Esteem car was acquitted by the competent court of law. He submitted

that even the involvement of Maruti Esteem car could not be established

in the said proceedings and therefore, learned Tribunal is in error in

fastening the liability on insurance company. He submitted that as the

involvement of Maruti Esteem car is not established, question of

negligence of driver does not arise and learned Tribunal has committed

an error in holding that driver of Maruti Esteem car was negligent in

occurrence of the accident.

Without prejudice to the above submissions, alternatively, he

submitted that in relation to quantum, the learned Tribunal is in error in

awarding 50% towards future prospective income after placing reliance

on National Insurance Company Limited vs. Pranay Sethi and Others

reported in (2017) 16 SCC 680. As the deceased was 38 years old and

self-employed, 40% rise ought to have been granted towards future

/FA/357/2019 JUDGMENT DATED: 27/09/2022

prospective income instead of 50%. He thus, submitted to allow his

appeal.

6. Per contra, Mr. Mohsin M. Hakim, learned advocate for the

respondents- original claimants submitted that learned Tribunal has

rightly considered Exh.52 and held that Maruti Esteem car bearing

registration No.GJ-16 AH 6529 was being driven by Rajeshbhai

Padmakar Kulkarni at the relevant time and therefore, involvement of

vehicle is established beyond reasonable doubt. Relying upon Exh-52, he

submitted that in the judgement dated 07/03/2015 in Criminal Case

No.4792 of 2013, it is recorded that one Prakashbhai Laxmanbhai Hirani

was examined at Exh.60. In his affidavit, he has stated that he was

traveling on 23/10/2013 at 9:00 pm with Rajeshbhai on old National

Highway No.8. Rajeshbhai was driving Maruti Esteem Car and he was

sleeping on rear seat, at that time on account of sudden break, he woke up

but he was not aware how the accident occurred. He therefore submitted

that the competent criminal court has acquitted the driver of Maruti

Esteem car on account of "benefit of doubt" and therefore, contention of

the appellant that there was no involvement of Maruti Esteem car could

not be accepted. He further submitted that standard of proof required in

civil and criminal proceedings are quite distinct and different. In support

/FA/357/2019 JUDGMENT DATED: 27/09/2022

of his submissions he relied upon decision of Hon'ble Supreme Court in

the case of Sunita and others V/s. Rajasthan State Road Transport

Corporation and another reported in AIR 2019 SC 994.

In relation to compensation, he submitted that learned

Tribunal has committed an error in awarding lesser compensation.

Despite there being 3 dependents, learned tribunal has awarded

compensation of Rs.25,000/- towards loss of consortium. In support of

his submissions, he has relied upon decision delivered by Hon'ble

Supreme Court in the case of United India Insurance Company Vs.

Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, as

well as in the case of Magma General Insurance Co. Ltd. Vs. Nanu

Ram Alias Chuhru Ram reported in 2018 (18) SCC 130.

Relying upon the decision rendered by Hon'ble Supreme

Court in case of National Insurance Company Limited vs. Pranay Sethi

and Others reported in (2017) 16 SCC 680, he submitted that

compensation awarded towards loss of Estate and Funeral expenses may

be enhanced accordingly. He therefore, submitted to dismiss the first

appeal filed by the insurance company and to allow the cross-objection

filed by the original claimants.

/FA/357/2019 JUDGMENT DATED: 27/09/2022

7. Heard learned advocates for the respective parties and also

perused the record and proceedings and evidence on record.

8. Upon re-appreciation of the evidence on record, it is noticed

that the Tribunal in second round of litigation has threadbare considered

Exh-52, which is the judgement in Criminal Case No.4792 of 2013 dated

07/03/2015. In the said decision, deposition of Prakashbhai Laxmanbhai

Hirani is recorded at Exh.60, who stated that he was traveling in Maruti

Esteem Car at the time of accident and was sleeping on the rear seat of

the car. It is only because of a sudden break that he woke up, however he

was not aware about manner of accident. The Tribunal basis this

deposition, has rightly in our opinion, come to a definite conclusion that

even after taking into consideration Exh.-52, which is the precise reason

why the matter was earlier remanded to the Tribunal, the involvement of

Maruti Esteem Car in the accident is proved beyond reasonable doubt.

Though attractive on first blush, the arguments of Mr. Mehta, the Ld.

Advocate for the Insurance Company cannot be accepted also because

one cannot lose sight of the fact that the acquittal of the driver of Maruti

Esteem Car was on account of "benefit of doubt" and no other solid

evidence. Therefore, we are of the opinion that the Tribunal is not in error

in holding that the Maruti Esteem car was involved in the accident and

/FA/357/2019 JUDGMENT DATED: 27/09/2022

consequently, fastening the liability on insurance company of Maruti

Esteem Car for payment of compensation. Furthermore, we are in

agreement with the findings recorded by the learned Tribunal that the

standard of proof in relation to civil and criminal proceedings are quite

distinct and different and therefore, we do not find any error in findings

recorded by the learned Tribunal that Maruti Esteem Car No.GJ-16 AH

6529 was involved in the accident and that consequently insurance

company is liable to pay the compensation.

9. However, in relation to future prospective income, we are in

agreement with the submission of learned advocate for the appellant that

the Tribunal has erred in awarding 50% rise for future prospective

income instead of 40%. As the deceased was self-employed and 38 years

old, in view of decision rendered by Hon'ble Supreme Court in the case

of Sarla Verma and others Vs. Delhi Transport Corporation and

another reported in (2009) 6 SCC 1211, the claimants are entitled for

only 40% rise towards future prospective income. Thus, the claimants

would be entitled for dependency loss as under:

"Rs.1,68,788/- per annum + Rs.67,515/- (40% prospective rise) =

Rs.2,36,303/- per annum - Rs.78,768/- (1/3rd dependency) =

/FA/357/2019 JUDGMENT DATED: 27/09/2022

Rs.1,57,535/- per annum x 15 multiplier (considering age at 38

years) = Rs.23,63,025/-".

10. In respect of the cross-objections filed by the original

claimants, we are in agreement with the submission advanced by Learned

advocate Mr. Hakim that since the deceased was survived by three

dependents, applying the ratio of Satinder Kaur (supra), the original

claimants would be entitled to get consortium of Rs.40,000/- for each

dependent. Further, the original claimants would be entitled for

Rs.15,000/- towards loss of Estate and Rs.15,000/- towards Funeral

expenses as held in the case of Pranay Sethi (supra).

11. The original claimants thus would be entitled to the total

compensation as under:

Loss of dependency                                               Rs.23,63,025/-
Loss of Consortium                                               Rs. 1,20,000/-
Loss of Estate                                                    Rs.     15,000/-
Funeral Expenses                                                  Rs.     15,000/-
Total compensation                                               Rs.25,13,025/-

12. In view of the above, following order is passed:-

 /FA/357/2019                               JUDGMENT DATED: 27/09/2022




 (1)           First Appeal filed by the appellant - insurance

company is partly allowed and Cross-Objection filed by the

original claimants is allowed to the extent of grant of additional

Loss of Consortium, Loss of Estate and Funeral Expenses.

(2) The impugned judgment and award dated 30/08/2018

passed by the Motor Accident Claims Tribunal, (Auxi.), 3 rd

Additional District Judge, Bharuch in MACP No.691 of 2013 is

hereby substituted and total compensation of Rs.25,13,025/- is

awarded to the original claimants. As the Tribunal has awarded an

amount of Rs.25,86,820/-, the appellant - Insurance company is

entitled for refund of Rs.73,795/- [Rs. 25,13,025/- - Rs.

25,86,820/-] with interest and proportionate costs.

(3) If the aforesaid amount has been deposited by the

appellant - Insurance company and the same is lying in the Fixed

Deposits, learned Tribunal is hereby directed to refund an amount

of Rs.73,795/- with interest accrued there on with proportionate

costs to the appellant - insurance company within a period of 4

weeks from the date of receipt of this order.

       /FA/357/2019                                JUDGMENT DATED: 27/09/2022




        (4)          It is needless to say that the original claimants are

entitled for balance amount and the same shall be disbursed to the

original claimants through RTGS. The rest of the judgment and

award passed by the learned Tribunal shall remained unaltered.

(5) Registry is directed to transmit back the Record and

Proceedings of the case to the concerned Tribunal forthwith.

However, there shall be no order as to costs.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) DIPTI PATEL