Gujarat High Court
Icici Lombard General Insurance ... vs Legal Heirs Of Decd. Alabhai Ramabhai ... on 3 April, 2025
NEUTRAL CITATION
C/FA/921/2012 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 921 of 2012
With
R/CROSS OBJECTION NO. 118 of 2012
In
R/FIRST APPEAL NO. 921 of 2012
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ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
Versus
LEGAL HEIRS OF DECD. ALABHAI RAMABHAI BAGDA & ORS.
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Appearance:
ADITI S RAOL(8128) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,2,3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL ORDER
1. The captioned First Appeal is filed by the
appellant - Insurance Company and Cross Objections is
filed by claimant for enhancement of compensation
against the judgment and award dated 29.11.2011 passed
by the learned Motor Accident Claims Tribunal (Aux.),
Gondal Camp at Dhoraji in MACP No.138 of 2008,
wherein the learned Tribunal has partly allowed the claim
petition.
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2. Heard learned advocate Aditi Raol for the
appellant and learned advocate Mr.Ankit Shah for
respondent Nos.1.1 to 1.5. Though served, none appeared
for respondent Nos.2 and 3.
3. Brief facts of the case are as under:-
3.1 On 08.03.2008, deceased - Aalabhai was
travelling in his own rikshaw bearing registration No.GJ1-
XX-802 from Jamkandorana to Sajadiya near Fofad river
bridge on Jamkandorana-Gondal Road, at about 8.00 p.m.
at that time, opponent No.1 came from wrong side,
driving truck bearing registration No.GJ-9T-7719 in rash
and negligent manner and dashed with rikshaw. As a
result, deceased died on the spot. An FIR was lodged
against the driver of truck.
3.2 Legal heirs of deceased - claimants filed claim
petition claiming compensation of Rs.20,00,000/- from
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opponents. Notices/summons were served to opponents.
Though, Opponent Nos.1 and 2 driver and owner of truck
served, neither appeared nor contested the claim petition.
Opponent No.3 - Insurance Company appeared and filed
Written Statement at Ex.25 and denied its liability.
Claimant No.1 filed Examination-in-chief at Ex.29.
Claimants produced documentary evidence such as FIR,
Panchnama, Inquest Panchnama, Postmortem report,
passbook of saving accounts of RDC Bank of deceased,
Insurance Letter of LIC and other documents in support of
claim petition. After considering the evidence both oral as
well as documentary, learned Tribunal partly allowed the
claim petition awarding compensation of Rs.9,56,600/-
with 9% p.a. to the claimants from the date of petition till
realization.
3.3 Being aggrieved and dissatisfied with the
impugned judgment and award, appellant - Insurance
Company and claimant are before this Court.
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4. Learned advocate for the appellant has submitted
that learned Tribunal has committed an error by holding
the driver of truck solely negligent in the occurrence of
accident. It is submitted that looking to the Panchnama, at
the place of accident, contributory negligence ought to
have been assessed at 50% each. The accident was head-on
collusion between a rikshaw and truck, therefore
negligence ought to have been attributed to both the
drivers of vehicles.
4.1 The burden is upon the claimants to establish
that the driver of truck was solely negligent and in
absence of any evidence, learned Tribunal ought to have
considered negligence at the ratio of 50% each.
4.2 It is further submitted that while assessing the
income of deceased, learned Tribunal in absence of
documentary evidence, assessed income at Rs.6,000/- per
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month. Learned Tribunal ought to have considered income
of deceased at Rs.4,000/- per month. Looking to the age
of deceased which was between 36-40 years at the time of
accident and as per the settled law in the case of National
Insurance Company Limited Vs. Pranay Sethi & Ors. reported
in (2017) 16 SCC 680, 25% may be added to prospective
income of the deceased. Claimants are being 5 in numbers,
however learned Tribunal has deducted 1/5 towards
personal and living expenses which is not in consonance
with the law. The multiplier which has been applied by
learned Tribunal is also erroneous considering the age of
deceased.
5. Per contra, learned advocate for the claimants
has supported the judgment and award on the ground of
negligence. However, cross objection is filed for
enhancement of compensation. It is submitted that, while
considering the income of deceased, learned Tribunal has
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taken into consideration the Bank Statement as well as
other receipts pertaining to premium deduction, payments
of installments for the rikshaw and motorcycle. It is
further contended that Claimant - widow has stated in the
petition that the deceased was earning Rs.12,000/- per
month. However, learned Tribunal assessed income of
deceased as Rs.6,000/- per month. However, learned
Tribunal has failed to consider the prospective income. It
is submitted that the age of deceased at the time of
accident was between 36-40 years, therefore, 25% to be
added as prospective income. Loss of Consortium amount
has also not been awarded by the learned Tribunal. The
amount of consortium would come to Rs.2,42,000/-
(Rs.48,400 x 5). Considering the age of deceased multiplier
of 15 would be applicable.
6. So far as negligence is concerned, learned
advocate for respondents has submitted that claimants have
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not been cross-examined by other side on the question of
negligence. More particularly, driver of offending truck did
not step into witness box and deposed regarding the
question of negligence. In absence of any contrary
material, learned Tribunal has rightly held the driver of
truck solely negligent. Considering the Panchnama at
Ex.33, which indicates that rikshaw was totally damaged
and position of vehicles are sufficient evidence to establish
the fact that the driver of truck was solely negligent in the
occurrence of accident.
7. It is further submitted that, in the Written
submissions before the learned Tribunal, appellant has
contended that the negligence of deceased - rikshaw driver
be assessed at 30% and that of driver of truck be assessed
at 70% in the occurrence of accident. Now, before this
Court, appellant has changed its stand and contended that
the negligence of both the driver of vehicles be considered
as 50% each.
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8. I have considered the submissions canvassed by
the learned advocates for the respective parties and
perused the record and proceedings. The deceased, who
was driving rikshaw met with an accident with Truck.
Panchnama indicates the position of vehicles. Upon perusal
of panchnama, it is found that there was total loos of
rikshaw and rikshaw was found on the right side of the
road whereas truck was found 10 feet away of the edge of
the road. Looking to the damage caused to the rikshaw,
learned Tribunal has held driver of truck sole negligent. In
addition to the Panchnama, while determining the question
of negligence, learned Tribunal has considered other
circumstances. Such as driver of truck did not step into
the witness box and contradict the claimant on the issue
of negligence. In cases where the victim has died in the
accident, in absence of any eyewitness, the evidence of
driver of offending vehicle is a vital piece of evidence in
determining negligence. When the driver of offending
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vehicle chooses not to come forward and explain under
what circumstances the accident has occurred and who
was negligent in the occurrence accident, learned Tribunal
has only option to consider FIR, Panchnama and oral
depositions of claimant. An adverse inference must be
drawn in such type of cases against the driver of offending
vehicle when he chooses not to contest the claim petition
and allows the claim petition to proceed. Once learned
Tribunal comes to a conclusion that offending vehicle was
solely negligent in the occurrence of accident, Insurance
Company cannot question the attribution of negligence on
the part of offending vehicle. It was also the responsibility
of the Insurance Company to bring on record contrary
material which can led to conclusion that the driver of
offending vehicle was either not negligent or not fully
negligent.
In the present case, in the absence of contrary
evidence, learned Tribunal has rightly considered the
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Panchnama, FIR and oral deposition of the claimants.
More particularly, on perusal of the cross-examination of
claimant No.1, except for general denials, no questions are
put to the claimant with regard to negligence. Under such
circumstances, I do not find any reason to interfere in the
findings of negligence as arrived at by the learned
Tribunal.
9. So far as income of deceased is concerned, a
presumption was drawn and it was assessed at Rs.6,000/-
per month based on the payments of premiums and
installments. When material is available before learned
Tribunal, the rates of minimum wages should not be
considered as a yardstick. The rates of minimum wages
can be helpful to the Tribunal as a yardstick to determine
the income in the cases where there is no evidence with
regard to income of victim.
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In the present case, learned Tribunal has rightly
considered the income of deceased at Rs.6,000/- per
month and more particularly, learned advocate for
claimants has also supported the findings of income
arrived at by learned Tribunal. It appears that learned
Tribunal has failed to consider the prospective income of
deceased which is to be considered as 25% as per the
settled law in the case of Pranay Sethi (supra). Claimants
being 5 in numbers, learned Tribunal ought to have
deducted ¼th under the head of personal and living
expenses. Loss of Consortium amount is to be added in the
compensation, which comes to Rs.2,42,000/- (Rs.48,400 x
5). Considering the submissions made by learned advocate
for the claimants that the deceased was in the age group
of 36-40 years, multiplier of 15 is to be applied instead of
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10. Considering the overall view of the facts of the
case, First Appeal is hereby dismissed. Cross Objection
partly allowed.
11. In view of the aforesaid discussions, the
claimants are entitled to the following amount of
compensation:-
Under the Head of Compensation of Rs.
Future loss of income
Monthly income = Rs. 6,000/-
Prospective income 25%
(Rs.6,000 + 25%) = Rs. 7,500/-
Deduction 1/4
(Rs.7500 x 1/4) = Rs. 1,875/-
Total Income
[Rs.7500 - Rs.1875] = Rs. 5,625/-
(Rs.5625 x 12 x 15) =
Rs.10,12,500/- 10,12,500/-
Conventional amount 20,000/-
Loss of consortium
(Rs.48,400 x 5) = Rs.2,42,000/- 2,42,000/-
Funeral expenses 25,000/-
Grand Total 12,99,500/-
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Less awarded amount of 9,56,600/-
compensation by Tribunal
Rs.9,56,600/-
Enhanced amount 3,42,900/-
(Rs.12,99,500 - Rs.9,56,600/-)=
Interest @7.5%
12. The claimants are entitled to enhanced amount
of compensation of Rs.3,42,900/- @ 7.5% per annum from
the date of claim petition till realization from Insurance
Company.
13. The Insurance Company is directed to deposit
enhanced amount of compensation with interest as above
within a period of 4 weeks from the date of receipt of this
order.
14. Upon such deposit, it will be open to the
claimants to approach the learned Tribunal for appropriate
orders for withdrawal. The learned Tribunal shall disburse
the same after proper identification and verification
following due procedure.
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15. While making the payment, learned
Tribunal/Court shall deduct the Court Fess, if not paid, in
accordance with prevailing Rule.
16. The present Cross objection is partly allowed
accordingly. The impugned judgment and award dated
29.11.2011 passed by the learned Motor Accident Claims
Tribunal (Aux.), Gondal Camp at Dhoraji in MACP No.138
of 2008, is modified to the aforesaid extent.
17. Record and proceedings, if any, received, be
sent back to the concerned Court/Tribunal.
(D. M. DESAI,J)
MANOJ
