Gujarat High Court
Bhartharam Nangaram Chaudhary vs Ashokkumar Gamandiram Khatri on 19 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3682/2011 ORDER DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3682 of 2011
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BHARTHARAM NANGARAM CHAUDHARY & ORS.BHARTHARAM
NANGARAM CHAUDHARY
Versus
ASHOKKUMAR GAMANDIRAM KHATRIASHOKKUMAR GAMANDIRAM
KHATRI & ANR.
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1,2,3,4,5,6
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/02/2024
ORAL ORDER
1. The challenge has been made by the claimants, since the
claim petition under Section 163A of the Motor Vehicle Act
filed came to be dismissed by the Motor Accident Claims
Tribunal (Auxiliary), Gandhidham on 30/08/2011 in MACP
No.73 of 2007.
2. Mr. Amit N. Patel, learned advocate for the appellants
submitted that compensation amount was required to be
granted as per the schedule but the learned Tribunal
dismissed the petition on the ground that the accident has
occurred because of the negligence of the deceased himself.
Mr. Patel, learned advocate submitted that the deceased was
driver on the tanker bearing registration no.RJ-4-G-3062 and
the policy as of the same was placed on record at Exh.30
NEUTRAL CITATION
C/FA/3682/2011 ORDER DATED: 19/02/2024
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which clarifies that the premium was accepted for six
employees. Thus, Mr. Patel, learned advocate, relying upon
the judgment of Valiben Laxmanbhai Thakore (Koli)
Wd/o. Late Laxmanbhai Ramsinghbhai Thakore (Koli)
and Others v. Kandla Dock Labour Board and Another
reported in 2021 I GLR 440, stated that the insurance
company cannot deny the liability after having received the
premium and thus stated that the Tribunal has committed an
error in exonerating the insurance company.
3. Mr. G. C. Majmudar, learned advocate submitted that
the claimants were required to prove the factum of premium
accepted by the insurance company and in absence, no
consideration should be given to any grounds raised.
4. The accident is stated to have occurred on 25/12/2006,
when the deceased was driving the tanker bearing
registration no.RJ-4-G-3062, and about 10:30 at night, in the
district Valsad, Taluka Kapreda, village Mandva where the
tanker got over turn and the deceased got crushed below the
vehicle and died. Postmortem was conducted at Government
Hospital, Kapreda Taluka. The accident was reported at the
Kapreda Police Station and registered as I-CR No.116 of 2006.
5. The policy of the vehicle was produced on record at
Exh.30 which covers the date of the accident. The schedule of
the premium shows that over and above the TP basic, the
insurance company had accepted the premium for six
employees. The claimants have exercised the option under
NEUTRAL CITATION
C/FA/3682/2011 ORDER DATED: 19/02/2024
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Section 167 of the Motor Vehicles Act, 1988 and approached
the learned Tribunal for compensation under the Motor
Vehicles Act, 1988. The compensation was prayed under
Section 163A of the Motor Vehicle Act, 1988 since the
premium was accepted by the insurance company, the liability
would be extended and hence following the schedule to
Section 163A of the Motor Vehicles Act, 1988 taking into
consideration the age of the deceased since the present
matter is fatal case, the compensation amount would be as
per the structured formula of the schedule. Further, it is to
be noted that the Tribunal fell in error in dismissing the
petition under Section 163A considering the negligence of the
driver himself.
6. Under Section 163A of the Motor Vehicles Act the
claimant are not required to plead and establish that the
death in respect to the claim so made is because of the
wrongful act or neglect of the victim himself, thus negligence
of the victim cannot be taken into consideration to decide the
claim petition under Section 163A of the Motor Vehicles Act,
1988. Further, the insurance company cannot deny liability to
pay when the premium is accepted for the employees on
vehicle.
7. As laid down in the case of National Insurance Co.
Ltd. vs. Gurumallamma and another reported in (2009)
16 SCC 43 wherein it was held that the multiplier stricto
sensu (i.e. without one-third deduction ) is not applicable in
case of fatal accident under Section 163A. The multiplier
NEUTRAL CITATION
C/FA/3682/2011 ORDER DATED: 19/02/2024
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stricto sensu (without any deductions) would be applicable
only in case of disability in non-fatal accidents as would
appear from Note 5 appended to the Second Schedule.
8. Following the aforesaid judgment, in the present matter,
since the income of the deceased driver was urged to be
Rs.3,350/- and since no evidence has been produced,
Rs.3,000/- per month is required to be considered as
voluntarily accepted by the claimant to be assessed under
Section 163A of the Motor Vehicles Act.
9. It was urged that no income assessment has been done
by the learned Tribunal concerned and the matter came to be
dismissed. Accordingly, this Court considers that he would be
earning Rs.3,000/- per month. Hence, his income would be
considered Rs.36,000/- per annum. Following the schedule
and considering the age of 27, the claimants would be entitled
to get compensation of amount of Rs.6,12,000/-. 1/3rd of the
amount is deducted for personal expenses in view of the Note
5 to the schedule. Hence, Rs.2,04,000/- would get deducted
as personal expenses and thus, the loss of dependency would
come to Rs.4,08,000/-.
10. Further as per the schedule in a fatal cases, the funeral
expenses would be Rs.2,000/-, loss of consortium would be
Rs.5,000/-, loss of estate would be Rs.2,500/-. Thus, in total
the claimants would be entitle to get Rs.4,17,500/-
11. The present appeal is allowed to the aforesaid extent.
NEUTRAL CITATION
C/FA/3682/2011 ORDER DATED: 19/02/2024
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The amount be paid by the insurance company within a period
of eight weeks at the rate of 7.5% interest.
12. It is stated that the claimant no.4, mother of the
deceased and the claimant no.5, grand father of the deceased
have died and photocopy of the death certificate are produced
accordingly which reflects that mother of the deceased Dheli
Devi died on 11/05/2017 and grand father of the deceased
Khema Ram died on 05/03/2019.
13. Accordingly, let total amount be paid to the claimants
nos.2 and 3, in ratio of 80:20 i.e. 80% amount to the claimant
no.2 Nainidevi, widow of the deceased and 20% amount to the
claimant no.3 Nathudevi, daughter of the deceased.
(GITA GOPI,J)
ILA
