Gujarat High Court

The Oriental Insurance Co. Ltd vs Samirbhai Ganibhai Vahora on 9 April, 2025

                                                                                                                NEUTRAL CITATION




                              C/FA/586/2025                                   ORDER DATED: 09/04/2025

                                                                                                                 undefined




                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 586 of 2025

                      ==========================================================
                                               THE ORIENTAL INSURANCE CO. LTD.
                                                            Versus
                                              SAMIRBHAI GANIBHAI VAHORA & ORS.
                      ==========================================================
                      Appearance:
                      MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
                      MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
                      NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,5
                      NOTICE NOT RECD BACK for the Defendant(s) No. 6
                      NOTICE SERVED for the Defendant(s) No. 7
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                       Date : 09/04/2025

                                                          ORAL ORDER

1. The present First Appeal is filed by the

appellant-Insurance Company against the judgment and

award dated 25.07.2024 passed by the learned Motor

Accident Claims Tribunal (Aux.) & 3rd Additional District

Judge, Kheda at Nadiad in MACP No.1103 of 2021,

wherein the learned Tribunal has allowed the claim

petition.

2. Heard learned advocate Mr. G. C. Mazmudar for

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

the appellant - Insurance Company and learned advocate

Mr.Nishit Bhalodi for respondent Nos.1 to 3 and 5.

Though served, none appeared for respondent No.7.

3. Brief facts of the case are as under:

3.1 On 04.07.2021, deceased Sahilbhai Samirbhai

Vahora was driving a motorcycle bearing registration

No.GJ-23BH-5835 alongwith his friend viz. Alpeshbhai as a

pillion rider, on the correct side of the road at a moderate

speed, on their way to visit Pavagadh Temple. At around

5.30 p.m., a truck bearing registration No.GJ-12-T-6057

being driven by opponent No.1 came in rash and negligent

manner and dashed with motorcycle. Resultantly, pillion

rider sustained serious injuries, however deceased also

sustained serious injuries and died on the spot. FIR was

lodged against the driver of truck.

3.2 The legal heirs/representatives of the deceased

filed a claim petition under Section 166 of the Motor

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

Vehicles Act claiming compensation of Rs.20,00,000/-.

Notices/summons were issued and served to opponents.

Opponent Nos.1 and 2 did not contest the claim petition.

Opponent No.3-Insurance Company appeared and filed

Written Statement at Ex.10 and denied its liability. Issues

were framed. Claimant No.1 filed examination-in-chief at

Ex.16 and produced documentary evidence such as FIR,

chargesheet, copy of panchnama of the place of accident,

inquest panchnama, postmorterm report and other

documentary evidence. After considering the evidence,

learned Tribunal allowed the claim petition and ordered

that claimants are entitled for Rs.22,69,200/- along with

proportionate cost and interest at the rate of 7.5% per

annum from the date of filing of the petition till

realization from opponent Nos.1 to 3 jointly and severally.

3.3 Being aggrieved and dissatisfied with the

impugned judgment and award, opponent No.3-Insurance

Company has filed First Appeal.

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

4. Learned advocate for the appellant has submitted

that the learned Tribunal has not awarded just and

reasonable compensation. It is further submitted that the

deceased was unmarried and was aged about 19 years at

the time of accident. However, learned Tribunal has

deducted 1/4th under the head of personal and living

expenses. It is further submitted that as per the settled

law, in the case of unmarried victim, 1/2 deduction is

required to be deducted towards personal and living

expenses. So far as loss of consortium is concerned,

learned Tribunal has erred in awarding compensation

under the said head. Except the above submissions, no

other submissions are canvassed by learned advocate for

the appellant.

5. Per contra, learned advocate Mr.Bhalodi for the

respondents-claimants supported the judgment and award

and submitted that the learned Tribunal has awarded just

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

and reasonable compensation. It is further submitted that

the present First Appeal lacks merit and no grounds exist

to interfere with the findings of the learned Tribunal.

6. I have considered the rival submissions

canvassed by learned advocates for the respective parties

and perused the impugned judgment and award.

Undisputedly, the age of deceased was 19 years at the

time of accident and was unmarried. The issue regarding

deduction towards personal and living expenses and the

calculation under the head of loss of consortium as per the

ratio laid down in the case of National Insurance Company

Ltd. Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, is

well settled. Learned Tribunal failed to appreciate the

settled law by deducting 1/4th towards personal and living

expenses. Learned Tribunal awarded Rs.1,92,000/- under

the head of loss of consortium considering 5 claimants.

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

It appears from the record that claimant Nos.1

and 2 are the parents of deceased whereas claimant No.3

is brother and claimant Nos.4 and 5 are grandparents of

deceased. So far as claimant Nos.3, 4 and 5 are concerned,

they do not fall within the definition of 'legal

representatives' and they are not entitled to any

compensation under the head of loss of consortium.

Further it is not the case made out by claimants that

claimant Nos.3, 4 and 5 were dependent upon deceased

both financially and socially. Claimant Nos.3,4 and 5

ought to have led evidence on this aspect.

7. 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.             9,000/-

                       Prospective income 40%




                                                                                                             NEUTRAL CITATION




                              C/FA/586/2025                                ORDER DATED: 09/04/2025

                                                                                                             undefined




                       (Rs.9,000 + 40%) = Rs.                12,600/-

                       Deduction 1/2
                       (Rs.12,600/2)                  =Rs.     6,300/-

                       Total Income
                       [Rs.12,600 - 6300) =Rs.                  6,300/

                       (Rs.6300 x 12 x 18) =Rs.13,60,800/-                                   13,60,800
                       Loss of estate                                                           18,000/-
                       Loss of consortium                                                       96,000/-
                       (Rs.48,400 x 2 )                 =Rs. 96,800/-
                       Funeral expenses                                                         18,000/-
                       Grand Total                                                        14,92,800/-
                       Less awarded amount of                                             22,69,200/-
                       compensation by Tribunal
                                          =Rs. 22,69,200/-

                       Excess amount                                                        7,76,400/-
                       (Rs.22,69,200 - Rs.14,94,600) =
                       Interest                                                                   @7.5%

8. The excess amount of Rs.7,76,400/- shall be

refunded to the appellant - Insurance Company along with

accrued interest thereon through RTGS or any other

electronic mode after due identification and verification.

9. After refund of amount, learned Tribunal shall

NEUTRAL CITATION

C/FA/586/2025 ORDER DATED: 09/04/2025

undefined

disburse the remaining total amount of compensation

equally between claimant Nos.1 and 2 through RTGS or

any other appropriate mode.

10. While making the payment, learned

Tribunal/Court shall deduct the Court Fess, if not paid, in

accordance with prevailing Rule.

11. The present First Appeal is partly allowed

accordingly. The judgment and award dated 25.07.2024

passed by the learned Motor Accident Claims Tribunal

(Aux.) & 3rd Additional District Judge, Kheda at Nadiad in

MACP No.1103 of 2021, is modified to the aforesaid

extent.