Gujarat High Court
National Insurance Company Limited vs Balubhai Bachubhai Chovatiya on 1 October, 2024
NEUTRAL CITATION
C/FA/40/2014 ORDER DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 40 of 2014
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NATIONAL INSURANCE COMPANY LIMITED
Versus
BALUBHAI BACHUBHAI CHOVATIYA & ORS.
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR TEJAS P SATTA(3149) for the Defendant(s) No. 1.1,1.2
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/10/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant/s - Insurance
Company, being aggrieved and dissatisfied with the judgment
and award dated 03.10.2013 passed by the Motor Accident
Claims Tribunal, Gondal in Motor Accident Claim Petition
No.154 of 1999, by which the Tribunal has awarded
compensation of Rs.7,65,000/- with 7.5% per annum interest to
the claimant/s, holding Opponents liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 That on 30.10.1998, deceased Balubhai and
deceased Alpeshkumar have occupied one vehicle bearing
No.GJ-3-4406 along with their agricultural goods and proceeding
towards Jetpur. When the said vehicle reached near Kisan Petrol
Pump at about 16.00 hours, one Truck from opposite side
bearing No.GJ-12U-9381 came in rash and negligent manner
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and collided with Tata vehicle, which resulted in death of
Balubhai and Alpeshkumar. Therefore, the legal heirs of the
deceased - widow and daughter have filed claim petition seeking
compensation with cost and interest for unnatural and untimely
death against the present respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponents
No.1 and 2 - driver and owner have chosen not to appear and
contest the claim petition before the Tribunal. Opponent No.3 -
Insurance Company has appeared and has filed its written
statement / objections by disputing all the averments made by
the claimant in the claim petition.
2.3 The Tribunal has framed the issues. The oral as well
as documentary evidence were led by the rival parties before the
Tribunal. After considering the documentary as well as oral
evidence and submissions made at the bar, the Tribunal has
partly allowed the claim petition by awarding compensation as
noted above.
2.4 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present appeal
is preferred by the Insurance Company.
3. Learned advocate Mr. Maulik Shelat for the
Insurance Company has submitted that the Tribunal has
committed an error in not properly calculating the amount of
compensation. He has submitted that amount of award is on
higher side as the Tribunal has not properly considered the
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income aspect of the deceased. He has submitted that the
deceased was aged about only 40 years at the time of accident
and was doing agricultural labour. He has submitted that at the
relevant point of time, his monthly income was Rs.2500/-. He
has submitted that therefore, considering the loss of
dependency, it would be calculated as Rs.2500/- as monthly
income plus Rs.1000/- as 40% prospective income minus
Rs.1,166/- as personal expenses (1/3) multiplied by 12 months
and multiplied by 15 multiplier would come to Rs.4,20,120/-
total future loss, which should be awarded to the claimants by
the learned Tribunal.
3.1 He has further submitted that considering the
general and non-pecuniary damages, the learned Tribunal
should award Rs.18,150/- each towards loss of estate and
funeral expenses. He has also submitted that towards loss of
consortium, Rs.96,800/- should be awarded as per the decision
of the Hon'ble Apex Court in the case of United India Insurance
Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in
(2021) 11 SCC 780.
3.2. He has submitted that the compensation is required
to be enhanced by modifying the award impugned accordingly
and this appeal may be allowed.
4. Per contra, Mr.Satta learned advocate for respondent
- claimants has submitted that the impugned judgment and
award passed by the Tribunal is just and proper. The Tribunal
has rightly considered the income of the deceased, the age of the
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deceased, the dependency and future aspect of income. He has
submitted that under the head of loss of estate and funeral
expenses, the Tribunal has rightly awarded compensation. He
has submitted that the amount under the head of loss of
consortium is just and proper. He has submitted that this
appeal may be dismissed and no interference be made by this
Court.
5. It is noteworthy to mention that the provisions of the
Motor Vehicles Act, 1988 which gives paramount importance to
the concept of 'just and fair' compensation. It is a beneficial
legislation which has been framed with the object of providing
relief to the victims or their families. Section 168 of the Motor
Vehicles Act deals with the concept of 'just compensation' which
ought to be determined on the foundation of fairness,
reasonableness and equitability. Although such determination
can never be arithmetically exact or perfect, an endeavor should
be made by the Court to award just and fair compensation
irrespective of the amount claimed by the claimants.
6. I have considered the submissions made by the rival
parties. I have perused the record and proceedings of the
Tribunal. I have gone through the impugned judgment and
award passed by the Tribunal. From the record, it transpires
that the deceased was aged about 40 years and was working as
agricultural labourer and his monthly income was Rs.2500/- at
the relevant point of time. Therefore, it should be considered as
monthly income of the deceased. Hence, it would come to
Rs.2500/- per month and by adding 40% prospective income, as
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calculated by the learned Tribunal, it would come to Rs.1000/-
and therefore, total income comes to Rs.3500/- per month. Since
the deceased is aged about 40 years, 1/3 would be proper to be
deducted as personal expenses and therefore, it would come to
Rs.1,166/-. Hence, the income would come to Rs2334/- per
month and therefore, yearly, it would come to Rs.28,008/- and
applying 15 multiplier as per the schedule of the Motor Vehicles
Act as well as the ratio laid down by the Hon'ble Apex Court in
the case of Sarla Verma versus Delhi Transport Corporation
reported in (2009) 6 SCC 121, it would come to Rs.4,20,120/- as
future loss, which is required to be awarded to the claimants.
6.1 Further, considering the ratio laid down by the
Hon'ble Apex Court in the case of Pranay Shethi (supra), as
general and non-pecuniary damages, under the head of loss of
estate and funeral expenses, if we award Rs.18,150/- and
Rs.18,150/-, respectively, which would be the just and proper
compensation.
6.2 Further, there are two dependents to the deceased.
Therefore, as per the decision of the Hon'ble Apex Court in the
case of United India Insurance Co. Ltd., versus Satinder Kaur @
Satwinder Kaur reported in (2021) 11 SCC 780, Rs.96,800/-,
which should be awarded to the claimants.
6.3 Therefore, total compensation would be as under,
which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
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Future Loss of Income 4,20,120/-
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 96,800/-
Total... 5,53,220/-
Amount which is already awarded 7,65,000/-
Amount which is to be refunded to Insurance 2,11,780/-
Company
7. Therefore, I hold that the claimant/s are entitled to
get the total amount of compensation of Rs.5,53,220/- with
7.5% p.a. interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice. Rest of the
direction(s) of the Tribunal remain same. The Tribunal has
already awarded Rs.7,65,000/-, therefore, out of said amount,
Rs.2,11,780/- would be paid to the appellant - Insurance
Company.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed.
8.2 Learned Tribunal concerned is directed to refund
amount of Rs.2,11,780/- with 7.5% p.a. interest from the date of
claim petition till its realization to the appellant - Insurance
Company and accrued interest on said amount be paid to the
claimants.
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8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
8.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
