Gujarat High Court

Sitaben Prabodhkumar Parmar vs National Insurance Co Ltd on 9 January, 2025

Author: Biren Vaishnav

Bench: Biren Vaishnav

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                            C/FA/2670/2011                               JUDGMENT DATED: 09/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2670 of 2011


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE BIREN VAISHNAV

                      and
                      HONOURABLE MR. JUSTICE DEVAN M. DESAI

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                                   Approved for Reporting                Yes           No
                                                                                       No
                      ==========================================================
                                         SITABEN PRABODHKUMAR PARMAR & ORS.
                                                         Versus
                                            NATIONAL INSURANCE CO LTD & ORS.
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                      Appearance:
                      MR AR PATEL(5838) for the Appellant(s) No. 1,2,3
                      DELETED for the Defendant(s) No. 3
                      MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                               and
                               HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                 Date : 09/01/2025
                                                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

1. The present appeal is filed by the appellants-

original claimants against the judgment and award dated

06.09.2010 passed by the learned Motor Accident Claims

Tribunal (Aux.), Fast Track Court No.3 at Vadodara in

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Motor Accident Claim Petition No.1804 of 1997, wherein

and whereby, the learned Tribunal has awarded the total

amount of Rs.5,01,229/- towards compensation with 7.5%

interest per annum.

2. Heard learned advocate Mr.A.R.Patel for the

appellants-original claimants and learned advocate

Mr.Vibhuti Nanavati for respondent - Insurance Company.

3. Brief facts narrated in the present First Appeal

are as under:-

3.1 On 10.10.1994, deceased Prabodhkumar

Ramjibhai Parmar was traveling in a Bus bearing

Registration No.AS-01-D-2763, on National Highway No.37

Gauhati- Jorhat Highway. Opponent No.1 was driving the

said Bus. Opponent No.2 is the owner of the Bus. The Bus

driver was driving the Bus rashly and negligently,

resultantly he lost control over the steering and at about

2.00 a.m. midnight, the Bus overturned. Deceased

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sustained serious injuries and was taken to Nazira

dispensary for treatment. Thereafter, he was shifted to

another hospital at Sibsagar, at 11.00 p.m., deceased

succumbed because of accidental injuries.

3.2 The heirs of deceased Prabodhkumar Parmar

filed a claim petition claiming compensation of

Rs.37,00,000/- from the opponents including the Insurance

Company. Opponent No.1 did not contest the application.

However, opponent Nos.2 and 3 appeared and filed

Written Statement at Exhibit 8 and 76 respectively. After

considering the evidence and material placed on record,

the learned Tribunal partly allowed the application and

ordered opponent Nos.2 and 3 i.e. owner and Insurance

Company of Bus to pay Rs.5,01,229/- to the claimants

with interest @ 7.5% per annum from the date of petition

till realization with cost.

3.3 Being aggrieved and dissatisfied with the

quantum of compensation, original claimants have filed a

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present appeal for enhancement of compensation.

4. Learned advocate Mr.A.R.Patel for the appellants

submitted that deceased was serving with Oil and Natural

Gas Commission (ONGC) as a Deputy Superintending

Geophysicist (Well) at Well Logging Section, Nazira,

Assam, at the time of accident. Deceased was aged about

49 years at the time of accident. The compensation

awarded by the learned Tribunal is less and has also not

taken into consideration the proper income of the

deceased. It is submitted that learned Tribunal has erred in

considering the net income of deceased at Rs.5,032/- per

month. The net income as per the salary slip at Ex. 95 is

Rs.9,899/-. The Tribunal has considered deduction of

Rs.4,067/-. As per the settled position of law only income

tax is to be deducted from the gross salary. As per the

salary slip income tax amount is Rs.1,250/-. Hence, the

net income of deceased would come to Rs.8,649/- instead

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of 5,032/- per month (Annual income of Rs.8,649 x 12 =

Rs.1,03,788/-).

4.1 It is further contended that as per the evidence

of the witness from ONGC at Ex.93/A and Ex.94, the

deceased would have been benefited with the revised pay

scales from Rs.5,200/- to Rs.8,786/-. Considering the ratio

laid down in the case of National Insurance Company

Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC

680, adding 30% prospective income, net income comes to

Rs.31,136/- (Rs.1,03,788/- x 30%) and a revised annual

income of Rs.1,34,924 (Rs.1,03,788/- + Rs.31,136/-).

Deducting 1/3rd personal expenses of the deceased would

come to Rs.44,975/-. Future loss of dependency would

come to Rs.89,949-/- (Rs.134,924/- - Rs.44,975/-).

4.2 The age of the deceased was 49 years, therefore,

multiplier of 13 would be applicable. Hence, the total

dependency loss would come to 89,949 x 13 =

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Rs.11,69,337/-. Additional amount under the head of

consortium of Rs.1,00,000, Funeral expenses of

Rs.25,000/-, Loss of love and affection of two sons at

Rs.2,00,000/- and Loss of love and affection of widow at

Rs.2,00,000/- be awarded. The claimants are also entitled

to loss of estate at Rs.50,000/-. Thus, as per Mr.Patel,

learned advocate for the appellants, the total amount

which the claimants are entitled to is Rs.17,44,337/- with

interest @ 7.3 %.

5. Per contra, learned advocate Mr.Vibhuti

Nanavati for respondent No.1-Insurance Company has

submitted that learned Tribunal has awarded just and

reasonable compensation on the basis of evidence. It is

submitted that the evidence of witness Mr.Narendrakumar

Ranchodbhai Gandhi examined at Ex.93/A is not

trustworthy as the document which has been produced at

Ex.94 is not an authentic document from ONGC. The said

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witness has not established that alleged revised pay scale

was paid to the deceased as per the deposition of the said

witness. The revision in the pay scale was implemented

from 01.01.1992. When the witness is not able to establish

the alleged fact of revision in pay scale, the learned

Tribunal has considered the income which is reflected in

Ex.95 which is a pay slip of deceased. However, learned

advocate for the respondent has fairly submitted that for

the purpose of assessing the salary of deceased only

income tax can be deducted and no other deduction can

be looked into. Thus, deducting an income tax of

Rs.1250/- from the gross salary of Rs.9,899/- the net

monthly salary comes to Rs.8,649/-.

5.1 It is further submitted that learned Tribunal has

considered an addition of prospective income at 30%.

However, the multiplier applied by the learned Tribunal is

against the settled principles of law and looking to the age

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of the deceased, correct applicable multiplier would be 12.

6. We have considered the submissions canvassed

by learned advocates for the respective parties and perused

the records and proceedings. The learned Tribunal, in our

opinion, made an error in assessing the monthly salary of

the deceased. From the gross salary only income tax is

required to be deducted and no other deductions to be

looked into. Applying the said principle, as per Ex.95

which is a pay slip, the gross salary is Rs.9899/- and

deducting Rs.1250/- of income tax, the net salary of

deceased would come to Rs.8,649/- per month and

Rs.8649x12 = Rs.1,03,788/- per annum.

6.1 Considering the age at the time of accident, as

per the propositions laid down in the case of Pranay Sethi

(supra), adding 30% prospective income, the net income

comes to Rs.31,136/- (Rs.1,03,788/- x 30%). Revised

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annual income shall be Rs.1,34,924/- (Rs.1,03,788/- +

Rs.31,136/-). 1/3rd personal expenses of the deceased

would come to Rs.44,975/- and deducting the same from

income, the future loss of dependency would come to

Rs.89,949/- (Rs.134,924/- - Rs.44,975/-).

6.2 Considering the age of the deceased as 49 years,

at the time of accident, multiplier of 13 is applicable.

Therefore, annual dependency loss comes to Rs.11,69,337/-

(Rs.89,949/- x 13).

6.3 So far as the revised pay scale is concerned, the

claimants could not establish that the deceased was getting

a revised pay scale and he was entitled to revised net

income at Rs.12,235/- per month as submitted by learned

advocate for the appellants. The witness at Ex.93/A also

did not say anything on the fact that the deceased was

drawing a salary of Rs.12,235/- at the time of accident.

While considering the salary of the deceased, the salary on

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the date of retirement is not the criteria in the background

of the fact that the income on the date of accident has to

be considered for determining the future dependency loss.

When the net income is being added by additional 30% in

the salary, the aspect of future loss is being considered

and therefore the salary which deceased might have

received at the time of retirement is not the correct mode

of calculation.

6.4 The learned Tribunal has granted compensation

to the original claimants under the different heads as

under:-

Rs.4,76,229/- Towards future loss of income Rs. 10,000/- Towards loss to the estate Rs. 10,000/- Towards loss of consortium Rs. 5,000/- Towards funeral expenses Rs.5,01,229/- Total

6.5 Thus, the amount to be granted as compensation

under the different heads to the original claimants shall be

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as under:-

                           Loss of dependency                    Rs.11,69,337/-
                           Loss of consortium                    Rs. 1,45,200/-
                           (Children & Widow)
                           Rs.48,400x2 + Rs.48,400
                           Loss of estate                        Rs.      18,150/-
                           Loss of funeral expenses              Rs.      18,150
                           Total:                                Rs.13,50,837/-
                           Amount awarded by the                 Rs. 5,01,229/-
                           Tribunal (-)
                           Enhanced amount                       Rs. 8,49,608/-