Gujarat High Court
The New India Assurance Company Ltd vs Kankuben Wd/O Gopalbhai Punambhai ... on 1 April, 2025
NEUTRAL CITATION
C/FA/3840/2024 ORDER DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3840 of 2024
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THE NEW INDIA ASSURANCE COMPANY LTD.
Versus
KANKUBEN WD/O GOPALBHAI PUNAMBHAI CHARAN & ORS.
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Appearance:
MR YOGI K GADHIA(5913) for the Appellant(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Defendant(s) No. 8
NOTICE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Yogi Gadhia for the
appellant. Though served, none appeared for and on
behalf of the respondent Nos.1 to 7 while learned
advocate Mr. Deepak Sanchela appearing for
respondent No.8 remained absent. Perused the record.
2. The challenge in the present appeal is by the appellant -
original opponent No.3 - insurance company challenging
the judgment and award dated 30.3.2024 passed by
learned Motor Accident Claims Tribunal (Aux), Halol in
M.A.C.P. No.240 of 2021.
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C/FA/3840/2024 ORDER DATED: 01/04/2025
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3. The facts in brief of the case are as under:
* On 20.7.2021, deceased Gopalbhai
Punambhai Charan was going with his buffaloes on side
of Halol road for grazing them and when he reached
near Sevak Farm, an ambulance bearing registration
No.GJ-23V-8999 came from opposite direction in a rash
and negligent manner and dashed with one of his
buffaloes from behind. Resultantly, the deceased
sustained serious injuries and succumbed.
* Claimants being the legal heirs of the
deceased filed claim petition for a compensation of
Rs.32,00,000/- from the opponents. Opponents were
served with summons. Opponent nos.1 and 2 contested
the claim petition by filing Written Statement at Exh.9
while the claim petition was resisted by insurance
company - respondent No.3 by filing Written Statement
at Exh.16 and denied its liability. After framing of
issues, claimant No.1 - widow of deceased submitted
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her deposition at Exh.18 and produced FIR,
Panchnama, PM report and documents to substantiate
income of deceased.
* After considering the evidence, learned
Tribunal partly allowed the claim petition by directing
opponents to pay an amount of Rs.25,06,200/- to the
claimants with interest @ 9% p.a. from the date of
application till realisation.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the insurance
company - appellant has filed the present appeal.
4. Learned advocate for the appellant - insurance company
has submitted that the deceased was not properly
walking on the road which contributed in the accident. It
is also submitted that in absence of documentary
evidence with regard to income, learned Tribunal has
considered notional income @ Rs.12,000/- per month. It
is further submitted that as per the case of the claimant,
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C/FA/3840/2024 ORDER DATED: 01/04/2025
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he was doing farming, animal husbandry work and
business of selling milk. Since the date of accident is
28.7.2021, rates of minimum wages prevailing at the
relevant point of time was Rs.9,053/-. It is also
submitted that as per the PM report, the age of
deceased was 33 years whereas as per the medical
certificate deceased was aged about 35 years. Learned
Tribunal has considered 35 years of age of the deceased
which is against the documentary evidence of Aadhaar
Card which was found by the appellant after the
pronouncement of the impugned judgment and award.
As per the Aadhaar Card, deceased was aged about 41
years of age. Except above submissions, no other
submissions are canvassed.
5. It appears from the record that deceased was doing
farming, animal husbandry and business of selling of
milk and was not having any documentary evidence to
substantiate the earning of Rs.15,000/- per month.
Learned Tribunal considered the notional income of
deceased @ Rs.12,000/-. In catena of decisions, it has
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been held that in absence of any documentary evidence
with regard to income of deceased, yardstick be taken is
the rates of minimum wages prevailing on the date of
accident. As per the ratio of minimum wages prevailing
on the date of accident, income would be assessed @
Rs.9,053/- as an unskilled person.
6. Considering the said ratio, income of the deceased
would be assessed @ Rs.9,053/- per month. As per the
evidence on record, learned Tribunal has considered the
age of deceased @ 35 years. Medical certificate also
supports the age of deceased as 35. In the background
of the above facts, the impugned award is required to be
modified.
7. It is pertinent to note that the contention of 41 years is
without any base and the age mentioned in the Aadhaar
Card is not a conclusive proof of evidence and more
particularly, when such evidence was not placed before
the learned Tribunal for its consideration, I am of the
view that the age of deceased which is considered by
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learned Tribunal is as per the medical certificate and
does not require any interference.
8. Looking to the age of deceased at the time of accident,
prospective income is to be added to the extent of 40%
on Rs.9,053/- as per the decision of Hon'ble Apex Court
in the case of National Insurance Company Limited
Vs. Pranay Sethi and others reported in (2017) 16
SCC 680.
9. In view of the above facts and circumstances, the
claimant is entitled to following amount of compensation
under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income : 18,24,960/-
Income per month 9053
Prospective Income (40%)
9053+3621 12674
1/4th Deduction:
Rs.12674 - 3169 9505
Rs.9,505/- X 12 X 16 multiplier
2. All Other Heads 77,000/-
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Total Compensation 19,01,960/-
(-) Awarded Amount Rs.25,06,200/-
Excess Compensation / Refund Rs.6,04,240/-
10. Therefore, total amount of compensation would come
to Rs.19,01,960/-, which is required to be awarded with
interest accrued thereon from the date of claim
petition till its realisation, which would meet the ends
of justice. It is pertinent to note that learned Tribunal
has awarded Rs.25,06,200/- to the claimant, therefore,
Rs.6,04,260/- (Rs.25,06,200/- - Rs.19,01,960/-) is
required to be refunded with 9% p.a. interest.
11. For the reasons recorded above, the following order is
passed:
[A]. The present appeal is allowed
accordingly in above terms.
[B]. The Insurance Company is entitled to
refund for an amount of Rs.6,04,240/- with
accrued interest thereon from the date of claim
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petition till its realisation before the concerned
Tribunal, within a period of four weeks from the
date of receipt of this order.
[C]. The Tribunal shall refund the excess to
the appellant by `Account Payee Cheque' / RTGS /
NEFT, after proper verification and after following
due procedure.
[D]. Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith. No
order as to costs.
(D. M. DESAI,J)
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