Gujarat High Court

New India Insurance Co Ltd vs Sumitradevi Omprakash Singh (M/O ... on 14 March, 2023

Bench: Gita Gopi

         C/FA/56/2021                                  ORDER DATED: 14/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/FIRST APPEAL NO. 56 of 2021
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                 In R/FIRST APPEAL NO. 56 of 2021
                               With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2021
                 In R/FIRST APPEAL NO. 56 of 2021
==========================================================
                        NEW INDIA INSURANCE CO LTD
                                   Versus
                  SUMITRADEVI OMPRAKASH SINGH (M/O DECD)
==========================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
PUNITA H JOSHI(8419) for the Defendant(s) No. 1,3,4
RULE NOT RECD BACK for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 6
UNSERVED EXPIRED (R) for the Defendant(s) No. 5
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 14/03/2023

                                  ORAL ORDER

[1] This is an appeal preferred by the

appellants-original claimants challenging the judgment

and award dated 16.03.2020 passed by the learned th 9 Additional District Judge, Motor Accident Claims

Tribunal (Auxi), Ahmedabad in Motor Accident Claim

Petition No.2068 of 2011 on the ground that the

there is an error in computing the prospective

income of the deceased, who was not permanent

C/FA/56/2021 ORDER DATED: 14/03/2023

employee but the probationer, and further ground has

been raised that professional tax has not been

deducted from the income which has been noted in

the last pay slip.

[2] Mr.Palak Thakkar, learned advocate for the

appellants - original claimants submitted that

nothing has come on record by way of the evidence

of the witnesses that the deceased-probationer would

have been made a permanent employee and that the

learned Tribunal should have made observations to

the effect that the prospective rise in income ought

to have been considered 40% instead of 50%.

2.1 Advocate Mr.Thakkar submitted that it is

mandatory to deduct the professional tax from the

income as laid down by the judgment of the Apex

Court, which requires deduction from the calculation

made by the Tribunal and stated that the

compensation assessed is on the very higher side,

which requires to be deducted and the amount is to

be refunded back to the Insurance Company.

[3] Countering the arguments, Ms.Punita Joshi

C/FA/56/2021 ORDER DATED: 14/03/2023

for the claimants submitted that the witness as a

Deputy Manager of Zydus Healthcare was examined

before the learned Tribunal, who had deposed that

the deceased was appointed as a Technical

Supervisor/Quality Controller in Zydus Healthcare and

he used to pay Rs.15,425/- per month as a salary to

the deceased. Advocate Ms.Joshi submitted that

necessary salary slip was produced on record.

[4] The facts of the case suggest that, on

28.06.2011 at about 11.30 p.m., the deceased was

walking on road towards his home at Bopal and

when, he reached near Indian Oil Petrol Pump

situated at Bopal cross-road to Ghuma, it is stated

that Eicher Truck bearing registration No.GJ-13-T-

5388 driven came rashly and negligently came an

excessive speed and dashed with the women, who

was sitting as a pillion rider on the motorcycle

which was going ahead of it, and thereafter dashed

from the back side with the deceased, as a result, he

succumbed to death because of fatal injury sustained

in the accident.

C/FA/56/2021 ORDER DATED: 14/03/2023

years at the time of death, and he was graduate and

had obtained B.Sc degree from Shri P.K.Inter College,

Dist. Gorakhpur, Uttar Pradesh and was serving in

Zydus Cadila at Ahmedabad.

[6] Considering the facts and documentary

evidence on record, the Tribunal has considered the

driver of Eicher Truck bearing registration no.GJ-13-

T-5388 as sole negligent. The observations so made,

have not been controverted, thus there is no reason

for this Court to take a contrary view.

[7] The salary slip produced on record suggests

the monthly earning of the deceased as Rs.15,425.50

ps. While deduction of Rs.200 towards professional

tax has not been considered by the learned Tribunal,

therefore, the same is required to be deducted.

Hence, the monthly income of the deceased comes to

Rs.15,225/-.

[8] The witness, who has been examined as

C/FA/56/2021 ORDER DATED: 14/03/2023

Deputy Manager of Cadila Health Care Ltd. has

given the evidence with regard to the salary of the

deceased. Admittedly, the deceased was a probationer,

but the said witness has not stated any facts with

regard to the performance and capability of the

deceased for being permanent on the said post of the

Company. No evidence has been noted in that

regard, and subsequently, no observations was also

made by the Tribunal. However, since the deceased

was drawing salary, 40% prospective rise in income

is required to be considered, where the learned

Tribunal, without any evidence on record has

considered 50% rise in prospective income which is

required to be decreased to 40%.

[9] However, it is to be noted that the

deceased died unmarried, who left behind him

parents, consortium money has not been granted by

the learned Tribunal to the parents. As per the

observations made in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru

Ram & Ors., reported in (2018) 18 SCC 130, each

C/FA/56/2021 ORDER DATED: 14/03/2023

claimant would be entitled for consortium money of

Rs.40,000/-.

[10] Considering the income as Rs.15,225/-

(Rs.1,5425-Rs.200/-), professional tax to be deducted

with 40% rise on the income to be added which

comes to Rs.6,090/-. The total monthly income comes

to Rs.21,315/-.

10.1 The deceased was unmarried. Considering

the dependency, ½ is to be deducted towards

personal expenses of the deceased. Hence, the

monthly loss would be Rs.10,657.50 rounded as

Rs.10,658/-.

10.2 The age of the deceased, at the time of

accident was following in the age group of 21-25. On

applying the multiplier of 18, dependency loss

annually is Rs.23,02,128 (Rs.10,658 x 18x12).

[11] The Tribunal has granted the compensation

to the appellants - claimants under the different

C/FA/56/2021 ORDER DATED: 14/03/2023

heads as under:-


   Loss of dependency                                            Rs.24,98,932.08

   Loss of Estate                                                      Rs.15,000/-

   Funeral Expenses                                                    Rs.15,000/-

   Total compensation                                            Rs.25,28,932.08




[12]            The appellants - claimants would be entitled

to get the compensation as follows:

       Sr.                        Head                           Compensation

   No.                                                          Amount in Rs.

   1         Future loss of dependency                            Rs.23,02,128/-

   2.        Loss of Estate                                            Rs.15,000/-

   3.        Funeral Expenses                                          Rs.15,000/-

   4.        Consortium money                                          Rs.80,000/-

   5.        Total:                                                 Rs.24,12,128/-




[13]            The      Tribunal     has         awarded      Rs.25,28,932/-

excess        amount       of    Rs.1,16,804/-       is   granted          to     the

claimant, which requires to be remitted back to the

Insurance Company alongwith 9% interest. The

C/FA/56/2021 ORDER DATED: 14/03/2023

Tribunal to deduct the said amount from the Fixed

Deposit Receipt (FDR) in the name of the claimant.

[15] In view of the above, the appeal is partly

allowed. The impugned judgment and award dated th 16.03.2020 passed by the learned 9 Additional

District Judge, Motor Accident Claims Tribunal

(Auxi), Ahmedabad in Motor Accident Claim Petition

No.2068 of 2011, is accordingly modified to the

aforesaid extent. The Record & Proceedings, if

received, be sent back to the concerned Court.