Gujarat High Court
Oriental Insurance Co. Ltd vs Kamalaben Khushalbhai Chavada on 22 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/2433/2007 ORDER DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2433 of 2007
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ORIENTAL INSURANCE CO. LTD.
Versus
KAMALABEN KHUSHALBHAI CHAVADA & 5 other(s)
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Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
for the Defendant(s) No. 7,8
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 6
RULE UNSERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 22/09/2023
ORAL ORDER
1. This appeal is filed under Section 173 of the Motor
Vehicle Act, 1988 by the Oriental Insurance Company Limited,
assailing the judgment and award dated 19.02.2007, in Claim
Petition No.1458 of 1997, passed by the Claim Tribunal at
Vadodara.
2. Deceased Kushalbhai at the age of 49 years, met with an
accident, which took place on 20.06.1997, between involved
Jeep and Tempo. Deceased being a passenger of the jeep,
sustained fatal injuries and succumbed to the injuries in the
hospital. The respondents being original claimants, who are
legal heirs and representatives of the deceased, had filed a
claim petition, joining the driver, owner and insurance
company of the tempo, before the Claim Tribunal at Vadodara.
NEUTRAL CITATION
C/FA/2433/2007 ORDER DATED: 22/09/2023
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Admittedly, deceased was permanent employee of the State
Government Undertaking namely Gujarat Electricity Board and
was going to retire in the year of 2008. The claim tribunal after
considering the service records as well as revenue records,
awarded the sum of Rs.15,13,200/- towards the dependency
loss and also awarded Rs.25,000/- under conventional head.
3. The insurance company of the opposite vehicle i.e.
tempo, being dissatisfied with the judgment and award dated
19.02.2007, has preferred the present appeal, inter alia,
stating that, the judgment and award is contrary to the law
and evidence on record.
4. Ms. Karuna Rahevar, learned counsel appearing for the
appellant-insurance company, has submitted that, the learned
tribunal failed to appreciate that, this is a case of composite
negligence and jeep driver was equally negligent in causing
the accident and the same can be inferred from the police case
papers and therefore, in the issue of negligence, the learned
tribunal, while fastening the liability solely on the part of the
tempo driver, has committed an error while recording the
findings on the issue.
5. Ms. Rahevar further submitted that, the monthly income
determined by the tribunal is on higher side. Drawing the
attention on the findings recorded by the tribunal, she
submitted that, the deceased was not actually cultivating the
agricultural land as projected and therefore, monthly income of
Rs.2000 from the agricultural operations considered by the
NEUTRAL CITATION
C/FA/2433/2007 ORDER DATED: 22/09/2023
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tribunal is without the evidence on record and therefore, so far
amount of dependency loss is concerned, the tribunal ought
not to have taken into account the source of income from the
agricultural operations.
6. On the other hand, learned counsel Mr. Hiren Modi
appearing for and on behalf of the original claimants-
respondents herein, submitted that the judgment and award,
are being passed after considering the evidence on record and
therefore, the amount awarded under the head of dependency
loss is just, equitable and reasonable and same does not
require any modification or reduction by this Court.
7. Having heard the learned counsel for the respective
parties and perusing the records and proceedings, the issue
arise for consideration of this Court is to whether the findings
on the issue of negligence and the amount of compensation
determined needs interference or not?
8. The factum of accident, involvement of the vehicles are
not in dispute. It is no doubt true that, the claim petition was
filed only against the offending vehicle i.e. tempo. It is settled
position of law that, in a case of composite negligence, the
injured or legal heirs of the deceased can seek compensation
from any of the tortfeasors. In other words, they can
recover the damages from any of them. In such circumstances,
the plea of the negligence on the part of the jeep driver,
cannot be entertained as before the tribunal, the driver and
owner were not party opponents. In the facts of the present
NEUTRAL CITATION
C/FA/2433/2007 ORDER DATED: 22/09/2023
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case, 100% negligence fastened upon the driver of the tempo.
This Court is of considered view that, it is the case of the
appellant that the accident was the result of composite
negligence of both the drivers. The insurance company did not
submit any application to join the parties of the jeep before the
tribunal and therefore, in absence of necessary and proper
party, the negligence on the part of the jeep driver cannot be
determined.
9. On the aspect of quantum, it appears that, monthly
Rs.2000/-, was being considered by the tribunal from the
agricultural income. Generally it is difficult to lead evidence of
income from the agricultural process. The Constitutional
Bench, in the case of Pranay Sethi, has settled the law on the
aspect of how to determine the age, income and deduction
part, in case of fatal accident. Therefore, this Court is of
considered view that, if we consider the Constitutional Bench
judgment and judgment passed in the case of Satinder Singh,
the amount awarded is on lesser side.
10. For the foregoing reasons, this Court does not find any
merits in the present appeal to interfere with the findings
recorded by the tribunal while determining the income of the
deceased. Consequently, the present appeal is dismissed,
being devoid of any merits. The judgment and award by the
tribunal is upheld. Decree be drawn accordingly.
(ILESH J. VORA,J)
TAUSIF SAIYED
