Gujarat High Court

Sbi General Insurance Company Limited vs Regal Shipping Pvt Ltd on 15 April, 2025

                                                                                                                  NEUTRAL CITATION




                              C/FA/33/2021                                     JUDGMENT DATED: 15/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                                     R/FIRST APPEAL NO. 33 of 2021
                                                     With
                       CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                                                 NO. 1 of 2025
                                       In R/FIRST APPEAL NO. 33 of 2021

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE DEVAN M. DESAI

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                                    Approved for Reporting                     Yes            No
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                                         SBI GENERAL INSURANCE COMPANY LIMITED
                                                          Versus
                                              REGAL SHIPPING PVT LTD & ORS.
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                       Appearance:
                       MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
                       NISHIT A BHALODI(9597) for the Defendant(s) No. 2,3,4,5,6,7
                       RULE SERVED for the Defendant(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                           Date : 15/04/2025
                                                           ORAL JUDGMENT

1. This Appeal is filed challenging the judgment and award

dated 15.06.2020 passed by the learned Motor Accident Claims

Tribunal (Main), Kachchh at Bhuj in M.A.C.P No.247 of 2014.

2. Heard learned advocate Mr. Vibhuti Nanavati for the

appellant, learned advocate Mr. Nishit A. Bhalodi for the

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respondent Nos.2 to 7. Though served, none appeared for

respondent No.1.

3. The brief facts of the case are as under:

3.1. On 02.05.2014, deceased-Junas Saicha was going on

Motorcycle bearing Registration No.GJ-12-BN-6947 in a slow

and moderate speed when he reached near Anjar Police Station

near Jagavladia, Mundra Adipur Highway road, a truck bearing

Registration No.GJ-12-Z-3814 being driven by opponent No.1

came in rash and negligent manner lost control over the steering

and went on wrong side of the road and dashed with

Motorcycle. Deceased sustained serious injuries and was

admitted in G.K. General Hospital, Bhuj and ultimately, on

15.05.2014, deceased died because of accidental injuries. FIR

was lodged against the driver of truck. Legal heirs of the

deceased filed claim petition claiming compensation of Rs.25

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

application even though they were served. Opponent No.3

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appeared and filed Written Statement at Exhibit-22 and denied

liability to pay compensation. Claimant No.1-father of the

deceased examined himself at Exhibit-26 and produced FIR,

Panchnama, discharge summary, inquest panchnama, fisherman

card of deceased issued by Government of India and certificate

of registration for sailing vessel bearing Registration

No.KDL921 in the name of claimant No.1 issued by

Government of India in support of claim petition. After

considering the evidence on record, learned Tribunal partly

allowed the claim application by awarding compensation of

Rs.18,67,000/- with 9% interest from the date of petition till

realization.

3.2. Being aggrieved and dissatisfied with the impugned

judgment and award, appellant-Insurance Company has

challenged the quantum awarded by learned Tribunal before

this Court.

4. Learned advocate for the appellant has submitted that

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learned Tribunal has failed to appreciate the fact that claimants

have failed to establish income of deceased at the time of

accident. It is further submitted that the assessment of

Rs.10,000/- as monthly income of deceased is without any base

and against the rates of minimum wages which were prevailing

on the date of accident. It is further submitted that though

claimants have claimed income of deceased at Rs.20,000/- per

month, the claim petition was originally filed as an indigent

person and in the application they have stated income of

claimant as Rs.4,000/- per month. When claimants are stating

income of deceased at Rs.4,000/- per month, claim of

Rs.20,000/- per month as the income of deceased is not

believable. It is further pointed out that by producing a

fisherman card of deceased issued by the Government of India,

income of deceased cannot be assumed as Rs.10,000/- per

month. It is further submitted that claimants are parents,

brothers and sisters of deceased. As per the claim petition

claimant Nos.3, 4 and 5 are doing labour work and claimant

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Nos.1, 2 and 6 being retired they are carrying on household

work respectively, it cannot be said that there is loss of

dependency. It is further submitted that claimants have failed to

establish that fishing activities were only carried out by

deceased, whereby family has suffered dependency loss on

demise of their son.

5. Per contra, learned advocate for the claimant-respondent

has submitted that father of deceased was having a boat bearing

Registration No.KDL921 and because of old age of father of

deceased, deceased was doing fishing work by taking his boat in

the sea. It is also submitted that deceased was earning Rs.2,000/-

daily. After deducting expenses, net income of deceased was

Rs.20,000/- per month. It is further submitted that Exhibit-42 is

a certificate of vessel which is issued in the name of claimant

No.1 and deceased was also holding a fisherman card issued by

the Government of India. When the evidence on record is

sufficient in establishing the fact that deceased was dong fishing

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work in the sea, learned Tribunal has rightly assessed income of

Rs.10,000/- per month. It is further submitted that claimants are

dependent and they are the legal representatives of the estate of

deceased. It is further submitted that in the cross-examination,

appellant has not raised the question of dependency and the

question of dependency has gone unchallenged. It is further

submitted that with regard to income of deceased, in absence of

any documentary evidence, learned Tribunal has rightly

considered the income of deceased and therefore, no

interference is required. It is further submitted that the

impugned judgment and award is just and reasonable.

6. Having considered submissions of learned advocates for

the parties and perused record and proceedings, it transpires that

deceased was holding a fisherman card issued by the

Government of India which is produced at Exhibit-41. It is also

culled out from the record that claimant No.1 being father of

deceased was also holding a certificate of registration of sailing

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vessel bearing Registration No.KDC921 issued by the

Government of India which is produced at Exhibit-42. However,

there was no material with regard to income of deceased at the

time of accident. In catena of decisions, law laid down by the

Hon'ble Apex Court is that in the cases where there is no

documentary evidence with regard to income, the yardstick for

considering the income is rates of minimum wages prevailing on

the date of accident. In the present case, the date of accident is

of 02.05.2014, if the prevailing rates of minimum wages are

considered, income of deceased would come to Rs.6,100/- per

month. The decision which has been relied upon by learned

advocate for respondent in the case of Gurpreet Kaur & ors.

versus United India Insurance Company Ltd. reported in 2022

LiveLaw (SC) 821, it was a case where positive evidence was

led before the learned Tribunal, however, learned Tribunal did

not consider that evidence and applied rates of minimum wages.

In view of the background of those facts in paragraph No.9, the

Hon'ble Apex Court has observed in the said decision as under:

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"In our considered view, the Tribunal's approach is quite justified in law as well as on facts. In the summary proceedings where the approach of the Tribunal's determination must be in conformity with the object of the welfare legislation, it was rightly held that the monthly income of the deceased could not be less than Rs.25,000/-. The reason assigned by the High Court to reduce the monthly income of the deceased is totally cryptic and has no rationale. The Notification of Minimum Wages Act can be a guiding factor only in a case where there is no clue available to evaluate monthly income of the deceased. Where positive evidence has been led, no reliance on the Notification could be placed, particularly when it was nobody's case that the deceased was a labourer as presumed by the High Court."

7. The reason assigned by the High Court to reduce monthly

income of deceased was found irrational and there was positive

material with regard to the fact that deceased was working as a

contractor for lifting of earth and a fact which came on record

that deceased had purchased a Tractor and for that he had taken

loan from Kotak Mahindra Bank. Deceased was also found

paying monthly installments towards loan of tractor and the

entire loan liability was discharged.

8. In the present case, undisputedly, the vessel was of the

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ownership of claimant No.1 and except a bare averment that

deceased was dong fishing work in the sea and was earning

Rs.25,000/- per month, no other cogent and convincing

materials is found on record. In such circumstances, learned

Tribunal ought to have considered the rates of minimum wages

prevailing on the date of accident. In the process of guesswork,

learned Tribunal ought not to give undue weightage to the fact

that deceased was doing fishing work and was drawing

Rs.10,000/- per month. Even if fishing work is a specialized

work, the evidence to that effect is required to be led by

claimants that deceased was the only specialized sailor of the

boat and was having a specialized knowledge with regard to

fishing activities. When the claimants are silent on the aspect of

specialized work, assessment of Rs.10,000/- per month as

income is unreasonable.

9. It also appears from the cross-examination that there is no

contradictions surfacing on record with regard to dependency.

Claimant No.1 has also denied the suggestion which was put to

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him in the cross-examination that family was not dependent

upon the earnings of deceased. In such background, contentions

of the Insurance Company that claimants are not legal

representatives, cannot be accepted.

10. In view of the above discussion, Insurance Company is

entitled to refund the following amount of compensation;

                         Sr.                         Name of the Head                     Amount in Rs.

                          1 Future Loss of Income
                                Income per month                         Rs.6,100/-

                                Prospective Income (40%)

                                Rs.6,100/- + Rs.2,440/-                   Rs.8,540/-

                                Deduction towards personal
                                expenses 1/2nd                                                    9,22,320/-
                                Rs.8,540/- less Rs.4,270/-               Rs.4,270/-
                                Rs.4,270/- x 12 x 18
                          2 Loss of estate                                                           18,150/-
                          3 Funeral expenses                                                         18,150/-
                          4 Loss of consortium
                            Rs.48,400/- x 2                                                         96,800/-
                          5 Medical expenses                                                      3,00,000/-
                          6 Pain, shock and suffering                                                25,000/-





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                              C/FA/33/2021                            JUDGMENT DATED: 15/04/2025

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                         Total                                                        13,80,420/-
                         Less amount awarded by tribunal                              18,67,000/-
                         Excess refund amount                                          4,86,580/-

11. The present First Appeal is partly allowed. The judgment

and award dated 15.06.2020 passed by the learned Motor

Accident Claims Tribunal (Main), Kachchh at Bhuj in M.A.C.P

No.247 of 2014, is modified to the aforesaid extent.

12. Lastly, it is informed by learned advocate for the appellant

that out of the total amount of compensation deposited by the

Insurance Company, 30% has been withdrawn by the claimants

and remaining 70% is lying in the Fixed Deposit. It is further

submitted that after refund of Rs.4,86,580/- with interest

accrued thereon, to the Insurance Company, remaining amount

of compensation be disbursed in favour of claimants by NEFT /

RTGS mode and after following due procedure.