United India Insurance Company ... vs Sonamben Dharmendrasinh ...
2023 Latest Caselaw 8173 Guj

                                                                                   NEUTRAL CITATION




     C/FA/3865/2014                            JUDGMENT DATED: 09/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 3865 of 2014
                               With
              F/CROSS OBJECTION NO. 24311 of 2019
                                 In
                 R/FIRST APPEAL NO. 3865 of 2014
                               With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO

===============================================================
1    Whether Reporters of Local Papers may be allowed                  YES
     to see the judgment ?

2    To be referred to the Reporter or not ?                           YES

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

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

================================================================
            UNITED INDIA INSURANCE COMPANY LIMITED.
                              Versus
         SONAMBEN DHARMENDRASINH BHADORIYA & 7 other(s)
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 5,7
MR H M SHAH(3997) for the Defendant(s) No. 1,2,3,4,6
RULE SERVED for the Defendant(s) No. 8
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    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
                     Date : 09/11/2023
                     ORAL JUDGMENT

1] The present appeal has been filed by the appellants-original

opponent No.3 against the respondent Nos. 1 to 6-original claimants

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and respondent Nos. 7 & 8- original opponent Nos. 1 and 2 under

Section 173 of the Motor Vehicles Act, ( 'The Act', for short) and

Cross objections have been filed by the original claimants against the

original opponents against the judgment and award passed by

learned M.A.C.Tribunal (Aux) Ahmedabad (Rural), Mirzapur in Motor

Accident Claim Petition No. 154 of 2008 on 7th August, 2014. The

parties are hereinafter referred to as the claimants and the opponents

in their rank as they stood in the original petition for the sake of

convenience, clarity and brevity.

2] The brief facts that emerge from the record of the case

are as under:-

2.1] That on 3rd November, 2007 at about 09:30 hours,

Dharmendrasinh Shiromanisinh Bhadoriya was going on his bicycle

towards his place of work and while he was passing near Gyaspur on

Narol Sarkhej Road, the opponent No. 1 came driving Tractor bearing

No. GJ-9-AF-1685, which belonged to the opponent No. 2 and was

insured with the opponent No.3, in a rash and negligent manner and

dashed the tractor at the rear side of the bicycle of Dharmendrasinh

Shiromanisinh Bhadoriya, as a result of which, he fell down and

sustained serious injuries and was taken to LG Hospital, Ahmedabad

for treatment and he succumbed to his injuries during treatment. The

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offence was registered at Vatwa Police Station being I-C.R.No. 545

of 2007.

2.2] The claimants, who are the widow, minor children and

parents of deceased Dharmendrasinh Shiromanisinh Bhadoriya have

filed the claim petition mainly stating that the deceased was 28 years

on the date of the accident and was hale and hearty and was earning

Rs.5,000/- per month by working as a Garment Operator in

R.V.Denim Export Limited. The claimants have lost their sole bread-

earner and have claimed an amount of Rs.10,00,000/- as

compensation jointly and severally from all the opponents under all

available heads.

3] The notices were duly served to the opponents but the

opponent Nos. 1 & 2 did not remain present whereas the opponent

No. 3 Insurance Company appeared and filed the written statement

at Exh; 13 mainly denying all the allegations and the averments

made in the claim petition and urged the learned Tribunal to dismiss

the claim petition.

4] Learned Tribunal, after recording the evidence of all

parties on record, found the opponent No. 1-driver of the Tractor, who

dashed the cycle from behind, 80% negligent and the deceased 20%

negligent for the occurrence of the accident and considering the

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notional income of the deceased at Rs.2500/- per month, as no

cogent convincing evidence was produced, awarded an amount of

Rs.14,12,500/- and deducted contributory negligence of 20% and in

all awarded an amount of Rs.11,30,000/- with 9 % interest jointly and

severally from all the opponents to be paid from the date of filing of

claim petition till realization.

5] Being aggrieved and dissatisfied with the said judgment

and award, the appellant - Insurance Company has filed the present

appeal mainly stating that the learned Tribunal has considered the

future prospective income at 50% whereas 30% ought to have been

considered and the learned Tribunal has erred in awarding the

amount of Rs.2,50,000/- under the conventional heads and hence the

judgment and award passed by the learned Tribunal must be

modified accordingly.

6] The claimants in the cross objections have mainly stated

that the learned Tribunal has wrongly held the deceased 20%

negligent for the occurrence of the accident especially when the

Tractor driver dashed the cycle of the deceased from rear side.

Moreover, the learned Tribunal has also not awarded the proper

amount considering the salary slip produced at Exh; 32 and 33

respectively and the learned Tribunal has ignored the income aspect

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and hence the amount of compensation must be enhanced

accordingly.

7] Heard learned advocate Mr. M.J.Shelat appearing for the

appellant-Insurance Company and Mr. H.M.Shah learned advocate

for the original claimants. Though served, the other respondents

have not appeared.

8] From the records and proceedings of claim petition No.

154 of 2008, it appears that the claimant No. 1 has filed the

examination-in-chief at Exh: 24. Admittedly, the claimant No.1 is not

an eye-witness to the witness but she has reiterated all contents of

the claim petition and has stated that at the time of the accident, her

deceased-husband was aged 28 years and was hale and hearty and

they have lost their sole earning member and they have suffered a

huge lose due to the sudden demise of the sole earning member.

During the cross examination, the claimant no. 1 has admitted that

she is not an eye witness and whatever was stated in the

examination in chief is on the basis of what others have told her. That

at the time of the accident she was at home and she was informed

that her husband has died in the accident. That she has never visited

the work place where her husband had worked.

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9] The claimants have produced the complaint at Exh; 25, the

panchnama of place of offence at Exh; 26, inquest panchnama at

Exh; 27, PM Note of the deceased at Exh; 28, the School Leaving

Certificate of the deceased at Exh; 29 and the birth certificate of the

deceased at Exh; 30. On perusal of the complaint produced at Exh;

25, the complaint states that Tractor No. GJ-9-AF-1685 was on the

road and the driver of the said tractor had kept the tractor at the spot

of incident and fled away. The complaint has been filed by

Parshottambhai Dhulabhai, B.No.3221, ASI, Vatwa Police Station,

Ahmedabad as the information was given from the LG Hospital to

Vatwa Police station that the incident has occurred and the injured

was taken to Hospital in 108 Ambulance. The panchnama of the

place of offence is produced at Exh; 26 and it appears that the

accident has occurred on the national highway no. 8 on the road from

Narol circle to Sarkhej near the board of Gyaspur Village where

Tractor No. GJ-9-AF-1685 was lying and bloodstains were found at

the place of incident. The place, at which the incident has occurred,

is 70 ft wide north-south road with a divider in the middle and the

tractor was lying 15 ft away from the divider and the cycle, which was

bent was lying in-front of the Tractor. This proves that the incident

has occurred in the middle of the road and the deceased, who was

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riding the Cycle was in the middle of the road and the accident has

occurred. That the cyclist ought to have driven the cycle on the

extreme left side of the road and even though it is a wide road, it

appears that the deceased was riding his cycle in the middle of the

road. Admittedly, the driver of the Tractor, who is the best eye-witness

to depose about how the incident has occurred, has not been

examined before the learned Tribunal and considering the

panchnama and the place where the accident has occurred, the

learned Tribunal has held the driver of the Tractor 80% and the cyclist

at 20% negligent for the occurrence of the accident.

10] Admittedly the place of accident is a wide road and the

cyclist was going in front of the Tractor and the opponent No. 1 had

ample opportunity to see that the cyclist who was in front of the

tractor, moreover, as per the complaint produced at Exh: 25, the

complainant Parshottambhai Dhulabhai, B. No. 3221, Vatwa Police

Station had joined his duty on 3 rd November, 2007 at 08:00 hurs and

at 11:00 hrs, he was intimated by PSO Vatwa in writing that on the

instructions of CMO Dharmendrabhai of the L.G.Hospital, Police

Constable Chattrasinh Ghandshyambhai had given information that

in MLC case No. 3672 an unknown person aged approximately 30

years was hit by a vehicle at 09:30 hrs on the Gyaspur Board road

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and was brought in 108 Ambulance and admitted in the Trauma Ward

in L.G.Hospital. This proves that the accident had occurred in the

morning at 09:30 am and in broad day light and the opponent No. 1

had full opportunity to see the cyclist riding his bicycle in front of the

tractor. Considering that the cyclist was riding his cycle in the middle

of the road, the opponent No. 1 ought to have blown the horn and

slowed down the Tractor and taken it to the right side of the road as

the road was sufficiently wide but it appears that the opponent No. 1

did not blow the horn as the cyclist was riding his bicycle in the

middle of the road and hence it would be just and proper if the cyclist

is held to be 10% negligent and the driver of the Tractor 90%

negligent for the occurrence of the accident.

11] As far as the quantum of compensation is concerned, in

the claim petition, the claimants have stated that the deceased was

working as a Garment Operator in R.V.Denim Export Ltd. and earning

Rs.5,000/- pm. The claimant No. 1, in her deposition, at Exh; 24, has

also stated the same fact and has categorically stated that the

deceased was working in R.V.Denim Export, 188/2 Rani Pur Village,

Narol, Ahmedabad as an Operator in the Garment department and

was earning Rs.4,950/- pm. The claimants have examined witness

Nirvabhai Dilipbhai Raval at Exh: 32 and have produced the salary

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slip of the deceased at Exh; 33 and the witness has stated that the

deceased was earning Rs.6500/- pm. During the course of cross

examination, the witness has stated besides the salary slip, he has

not produced any documents, to show that the deceased was

working in R.V.Denim Export Limited and in the year 2000, at the

time of the accident, about 150 employees were working in

R.V.Denim Export Ltd. but no statement or salary statement has been

produced. The witness has further stated that the deceased was not

working, when he joined the company and he has no record about

the salary and does not know on what basis, the salary slip has been

made. The witness has also not produced any appointment letter or

any other document, to show that, the income of the deceased was

Rs.6500/- pm, on the date of the accident. The learned Tribunal has

dealt with this aspect and as no reliance could be placed on the

certificate, which was contrary to the deposition of the claimant No. 1

has considered the monthly salary of Rs.5000/- pm, which is just and

proper considering the fact that the same amount was pleaded in the

claim petition and also in the affidavit of the claimant No., 1 which is

produced at Exh; 24. The learned Tribunal has considered the

prospective income of 50%, as deceased was 28 years on the date

of the accident, which is also just and proper and considering the

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number of dependent, ¼ amount has been deducted as personal

expenditure and the loss of dependency is calculated at Rs.5625/-

pm and Rs.67,500/- pa. The learned Tribunal has rightly applied the

multiplier of 17 as the deceased was 28 years on the date of the

accident, and hence the loss of dependency is calculated at

Rs.11,47,500/-. As far as the amounts of consortium and funeral

expenses and loss of estate are concerned, the learned Tribunal has

not properly awarded the amount as per the judgments of the Apex

Court in National Insurance Company Limited Versus Pranay

Sethi and Ors, reported in (2017) 16 SCC 680 and in the case of

Magma General Insurance Co. Ltd vs. Nanu Ram @ Chuhru Ram

& Ors., reported in 2018 (18) SCC 130, and as the parents of the

deceased have expired and the claimants are the widow and three

children, the claimants would be entitled to an amount of

Rs.1,60,000/- as spousal and parental consortium and Rs.15,000/-

towards funeral expenditure and Rs.15,000/- towards loss of estate

and in all claimants would be entitled to Rs.13,37,500/-.

12] For the foregoing reasons, the Cross objections are

partly allowed and the appeal filed by the Insurance Company is

hereby dismissed and the judgment and award passed by learned

M.A.C.Tribunal (Aux) Ahmedabad (Rural), Mirzapur in Motor Accident

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Claim Petition No. 154 of 2008 on 7th August, 2014 is hereby

modified to the extent that the claimants are entitled to

Rs.13,37,500/- as the enhanced amount of compensation, from

which, the amount of 10% negligence of the deceased i.e.

Rs.1,33,750/- is deducted and in all claimants are entitled to get an

amount of Rs.12,03,750/-.

13] The learned Tribunal has awarded an amount of

Rs.11,30,000/- and hence the claimants are entitled to an

enhanced amount of Rs.73,750/- with interest at the rate of 6% per

annum from the date of filing of the claim petition till realization.

The Insurance Company is directed to deposit the additional

amount of compensation with 6% interest as early as possible

within an outer limit of eight weeks from the date of receipt of the

certified copy of this order. After depositing the additional amount

of compensation, the same shall be disbursed in favour of the

claimants through NEFT/RTGS, after proper verification.

14] Record and proceedings be sent back to the concerned

Tribunal forthwith. Pending civil applications, if any, shall stand

disposed of accordingly.

Sd/-

(S. V. PINTO,J) VVM