Gujarat High Court
Bajaj Allianz General Insurance Co. Ltd vs Shivrajsingh Bhavarsing Ravat on 22 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1472/2016 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1472 of 2016
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
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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
Versus
SHIVRAJSINGH BHAVARSING RAVAT & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PUNAM G GADHVI(3724) for the Defendant(s) No. 8
MR YH VYAS(1001) for the Defendant(s) No. 4,5,6
MS KEYA D PATEL(11258) for the Defendant(s) No. 8
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Heard Mr. Vibhuti Nanavati, learned advocate for the
appellant, Mr. Y.H. Vyas, learned advocate for the
respondent Nos.4 to 6 and learned advocate Ms.
Keya D. Patel for respondent No.8 at length. Though
served, respondent No.2 remained absent while rule
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could not be served upon respondent Nos.1 and 3.
2. The brief facts of the case are as under:
* Deceased Narendrabhai Madhubhai Prajapati,
on the date of accident i.e. on 25.12.2008 at about
10.30 am while driving on his Hero Honda Motor
Cycle bearing registration No.GJ-19N-8082 dashed
with a trailer bearing registration No.RJ-06-GA-2174
at Kamrej Cross Road, near Dada Bhagwan Temple,
coming from opposite direction. The driver of trailer
was driving the vehicle at an excessive speed and in
rash and negligent manner. Because of the
negligence of the opponent No.1 i.e. the driver of the
said trailer, the accident occurred, resultantantly,
Narendrabhai Madhubhai Prajapati died. The
claimants, being the heirs of deceased Narendrabhai
filed a claim petition being M.A.C.P. No.450 of 2009
for a compensation of Rs.25,00,000/- before the
learned Motor Accident Claims Tribunal (Aux.), Surat.
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The driver and the owner of the trailer did not
contest the petition but the Insurance Company -
original opponent No.3 appeared and filed Written
Statement at Exh.35. Claimant No.1 widow of
deceased filed examination in chief at Exh.41 and
also produced FIR, Panchnama, Post Mortem report
of the deceased and copies of Income Tax Returns for
the Assessment Year 2004-2005 upto Assessment
Year 2007-2008. After considering the evidence,
learned Tribunal allowed the claim petition by
awarding Rs.43,38,700/- with cost and 9% interest
p.a. from the date of application till realization
against the opponents. Being aggrieved and
dissatisfied with the impugned judgment and award,
appellant - Insurance Company is before this Court.
3. Learned advocate for the appellant - Insurance
Company submitted that the award of the learned
Tribunal is excessive and without properly
appreciating the question of negligence and the
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income of the deceased. It is contended that the
learned Tribunal has erred in considering prospective
income of deceased at 50% and further erred in
deducting 1/5th amount towards personal and living
expenses of the deceased. Pending the application,
claimant No.4 - Madhubhai Rambhai Prajapati -
father of deceased was deleted. Claimants being 4 in
number, learned Tribunal ought to have considered
1/4th amount towards personal and living expenses
of the deceased. It is further submitted that while
considering the income of the deceased, who was a
Diamond Agent at the relevant point of time, learned
Tribunal has considered Rs.16,600/- per month as
income. As per Exhs.59, 60, 61 and 62 which are the
copies of Income Tax Returns of deceased for the
Assessment Year of 2004-2005 upto Assessment
Year 2007-2008, the income which has been
assessed by the learned Tribunal is not substantial.
As the quantum of compensation is against the
evidence on record, the appeal deserves to be
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allowed.
4. Per contra, learned advocate for the respondents -
original claimants supported the award. It is
submitted that the deceased was aged about 37
years at the time of accident and was engaged in the
business of Diamond Agent. The deceased was
earning Rs.1,80,000/- to Rs.2,00,000/- per year from
the said business before the accident. Learned
Tribunal has considered the Income Tax Returns and
assessed the income of deceased at Rs.16,600/- per
month which is just and reasonable. However, it is
pointed out that the learned Tribunal has not
awarded parental and filial consortium as per the
settled principle of law. The further contention which
has been raised by learned advocate for the
respondent regarding negligence is that the driver of
the offending trailer was negligent in causing the
accident. The Panchnama and the FIR indicate that
the driver of the offending trailer was solely negligent
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and the learned Tribunal has rightly concluded the
question of negligence by holding sole negligence of
the trailer driver in the occurrence of accident. The
driver of the offending trailer has not come forward
before the learned Tribunal and has opted to remain
absent and, therefore, the finding on negligence may
not be disturbed by this Court.
5. We have considered the submissions canvassed by
learned advocates for the respective parties and also
perused the Record and Proceedings. Learned
Tribunal has observed that the driver of the offending
trailer was sole negligent in the occurrence of
accident. While observing the issue of negligence,
learned Tribunal has taken into consideration the
Panchnama of the place of accident. In absence of
the contrary evidence being led by the owner and
driver of the trailer, we do not find any other material
to dislodge the finding on the question of negligence.
Even during the course of submission, learned
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advocate for the appellant also could not point out
any contrary evidence on the question of negligence.
6. The next question for consideration is regarding
quantum of compensation. When the offending trailer
driver has been found negligent in the occurrence of
the accident, the insurer of the offending trailer is
required to be saddled with the liability of
compensation to the heirs of deceased. We have
noticed that the learned Tribunal has considered
Exhs.60 to 63, which are the Income Tax Returns of
the deceased for the Assessment Year 2004-05 to
Assessment Year 2007-08. Undisputedly, the Income
Tax Return for the Assessment Year 2007-08 is filed
by the widow of the deceased on 28.1.2009, which is
after the date of accident. While arriving at the
income of deceased, learned Tribunal has only taken
into consideration the income of deceased which is
reflected in Exh.62 at Rs.1,49,880/- which is the
Income Tax Return of Assessment Year 2007-08.
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Learned Tribunal took 8 months average income and
derived income of Rs.16,600/- per month. As per
Exhs.59 to 62 which are the Income Tax Returns for
the Assessment Year 2004-05 to Assessment Year
2007-08. After deducting the tax amount, the total
net income would come to Rs.4,62,076/- for 4 years.
There is no palatable explanation assigned by
learned Tribunal for determining the income and for
taking into consideration only one Income Tax Return
Exh.62. In our opinion, looking to the Post Mortem
report of the deceased which indicates the age of
deceased at 35 years at the time of accident and
considering the average monthly income of deceased
which comes to Rs.9,627/- per month (Rs.4,62,076/- /
48 months = Rs.9,627/- per month). The deceased
was aged about 35 years and was a self employed
person. As per the law laid down in the case of
National Insurance Company Limited Vs.
Pranay Sethi and others reported in (2017) 16
SCC 680, 40% to be added as prospective income of
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deceased and multiplier of 16 would be applicable.
The claimants are 4 in numbers, 1/4th amount to be
deducted towards personal and living expense of
deceased.
7. Taking into consideration the decision in the case of
Pranay Sethi (Supra) and in view of above
discussion and finding, it would be in the fitness of
things to modify the judgment and award passed by
the learned Tribunal, as under:-
Particulars Amount in
Rupees
Actual Salary / Income 9,627/-
Prospective Income (40%) 3,851/-
Total... 13,478/-
Deduction towards personal 3,370/-
expenses (1/4th)
Net Monthly Income... 10,108/-
Total Monthly Income × 12 × 16 10,108×12×16
Multiplier
Loss of Dependency 19,40,736/-
Conventional Amount for Loss of 18,150/-
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Estate
Spousal Consortium 48,400/-
Funeral Expenses 18,150/-
Parental Consortium and 96,800/-
Filial Consortium 48,400/-
Total 21,70,636/-
Compensation already awarded 43,38,700/-
by the Tribunal
Excess Compensation 21,68,064/-
8. In view of above stated discussions, reasons and our
findings so recorded, the present appeal is partly
allowed. The following order is passed:
(A) The claimants would be entitled to
Rs.21,70,636/- with interest @ 7% per
annum from the date of claim petition till
its realization.
(B) As the learned Tribunal has
awarded compensation of Rs.43,38,700/-
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with costs and interest, the appellant -
Insurance Company is entitled to get
refund of Rs.21,68,064/-.
(C) Record & Proceedings, if any, be
sent back to the concerned Tribunal,
forthwith.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
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