Gujarat High Court
National Insurance Company Limited vs Vihol Chandanji Heduji on 23 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1034/2018 JUDGMENT DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1034 of 2018
With
R/CROSS OBJECTION NO. 79 of 2023
In
R/FIRST APPEAL NO. 1034 of 2018
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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NATIONAL INSURANCE COMPANY LIMITED
Versus
VIHOL CHANDANJI HEDUJI & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR AV PRAJAPATI(672) for the Defendant(s) No. 2,3,4,5
MR PARTHIV A BHATT(5331) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 23/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present appeal is filed by appellant-Insurance
Company and Cross-Objection has been filed by the appellants-
original claimant against the judgment and award dated
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30.12.2017 passed by the learned Motor Accident Claims
Tribunal (Main), Mahesana in Motor Accident Claim Petition
No.110 of 2009, wherein learned Tribunal has awarded total
amount of compensation at Rs.22,25,592/- with 9% interest per
annum.
2. Heard learned advocate Ms. Masumi V. Nanavati for
learned advocate Mr. Vibhuti Nanavati for the appellant-
Insurance Company in appeal and respondent-Insurance
Company in Cross-Objection and learned advocate Mr. A. V.
Prajapati for respondent Nos.2, 3, 4 and 5 in appeal and
appellant in Cross-Objection.
3. Brief facts narrated in the present First Appeal are as
under:-
3.1 Deceased-Sanjaykumar Prahladbhai on 08.01.2009
was driving Motor Cycle bearing Registration No.GJ-02-AE-
2382. While reaching at the place of accident i.e. Limboi
Vadgam Raod, sim of village Limboi, opponent No.1 came in a
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Jeep bearing No.GJ-08-F-7553 with full speed and in rash and
negligent manner and dashed with the Motor Cyclist.
Resultantly, Sanjaykumar Prahladbhai Patel sustained serious
injuries and died on the spot. Heirs of deceased filed Claim
Petition under Section 166 of the Motor Vehicles Act, 1988
claiming compensation of Rs.30,00,000/- from opponents.
Opponent No.1 being the driver and owner of the Jeep was
served with the Notice. However he chose not to defend the
claim petition. Opponent No.2-Insurance Company appeared
and filed Written Statement at Exhibit-15. Claimant No.1 widow
of deceased filed examination-in-chief at Exhibit-21 and
produced documentary evidence. After considering the evidence
on record, learned Tribunal partly allowed the claim application
by holding driver of Jeep negligent to the extent of 90% and
deceased was found 10% negligent in the occurrence of
accident. Learned Tribunal awarded Rs.22,25,592/- with costs
and interest @ 9% per annum from the date of the petition till
realization in favour of claimants.
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3.2. Being aggrieved and dissatisfied with the impugned
award, the appellant-Insurance Company has filed the First
Appeal. Original claimants have also filed Cross-Objections on
the ground of salary and other income of deceased not being
considered properly as well as awarding less amount of
compensation under the head of loss of consortium and loss of
estate.
4. As the facts are common, upon request of learned
advocates for the parties, First Appeal and Cross-Objection are
decided together.
5. Learned advocate for the appellant submitted that finding
deceased negligent to the extent of 10% is erroneous and
contrary to the contents of spot panchnama Exhibit-31. The
width of the road as per Panchnama was 24 feet and the motor
cycle was found at 21' 4" from left hand side of the road. It is
contended that when the motor cyclist was traveling on
extremely wrong side of the road, deceased has contributed
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more in the occurrence of accident. While considering the
income of the deceased, learned Tribunal has not considered
deduction of professional tax of Rs.150/- per month which ought
to have been deducted from his monthly salary of Rs.10,569/-.
Since the deceased was appointed on ad hoc basis, the
prospective income has been wrongly applied at 50% by the
learned Tribunal.
6. Per contra, learned advocate for the respondents-claimants
submitted that no interference is required in the findings of
negligence in absence of any contrary evidence. As the driver of
the Jeep has not been examined, the finding on negligence may
not be disturbed. However, by way of cross-objections, the
claimants have raised the issue that the learned Tribunal has not
considered the salary of Rs.14,000/- per month as stated by the
claimants and further learned Tribunal has erred in awarding
only Rs.1,00,000/- towards loss of consortium and Rs.75,000/-
as loss of estate. All four claimants, who are dependents of
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deceased, ought to have been awarded Rs.75,000/- each. A
claim of Rs.3,000/- per month under the head of income from
agriculture ought to have been considered by the learned
Tribunal.
7. We have considered the submissions and perused the
record and proceedings. The spot panchnama which is produced
at Exhibit-31 indicates that motor cycle was found at 21' 4''
from the edge of the road which is on the eastern side of place of
accident. As per the first part of the panchnama, the width of the
road is 24 feet which is of "east-west" direction, whereas in the
later part of the panchnama, the direction of road is mentioned
as "north-south" direction. Thus, the panchnama is not clear in
mentioning about the direction of road at the place of accident.
Unfortunately, learned advocates for the parties also could not
point out the exact and correct direction of the width of the road
at the place of the accident. However, Learned Tribunal has
after considering the oral deposition of claimant and the position
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of the motor cycle at the place of accident held that the deceased
was negligent to the extent of 10% in the occurrence of accident.
In absence of any cogent and convincing contrary material, we
are not inclined to interfere in the findings of negligence and we
confirm the findings of negligence arrived at by the learned
Tribunal.
8. The next question which is under consideration, is the
quantum of compensation which has been awarded to the
claimants. Learned Tribunal has considered Rs.10,569/- per
month as the income of the deceased at the time of accident.
Adding 50% as prospective income which comes to Rs.5,285/-
per month, total income of deceased was calculated at
Rs.15,854/- per month. However, learned Tribunal has not
considered deduction of Rs.150/- towards professional tax while
considering the salary of deceased.
9. In our opinion, the income of deceased would be
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Rs.10,419/- per month (Rs.10,569/- less Rs.150/- =
Rs.10,419/-). Adding 50% as prospective income of deceased,
the actual income would be Rs.15,628/- per month. Considering
the claimants, who are four in numbers, ¼ would be deductable
from the income of deceased under the head of personal
expenses. Thus, the net income of deceased would be
Rs.11,721/- per month (Rs.15,628 less Rs.3907/- [¼ under
personal expenses] = Rs.11,721/- per month). Income per
annum would be Rs.11,721 X 12 = Rs.1,40,652/-. Considering
the age of the deceased at the time of accident, multiplier of 16
would be applicable in view of the proposition of law laid down
in the case of National Insurance Company Limited Vs. Pranay
Sethi & Ors. reported in (2017) 16 SCC 860. Hence, the total
dependency loss would come to Rs.22,50,432/-. The claimants
therefore would be entitled to the following enhanced amount.
DEPENDENCY LOSS Amount in Rs.
Income
Rs.10569/- - Rs.150/- Professional Tax 10,419/-
Prospective Income (50%) 15,628/-
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Rs.10,419 + Rs.5209/-
Deduction towards personal expenses 1/4th 11,721/-
Rs.15628/- less Rs.3907/- = Rs.11721/-
11,721 X 12 X 16
Total 22,50,432/-
Loss of estate 18,150/-
Loss of Funeral expenses 18,150/-
Loss of consortium
Widow, two minor children and mother
Rs.48,400/- + Rs.48,400/-X2 + Rs.48,400/- 1,93,600/-
Negligence 10%
Rs.24,80,332/-
Less Rs.2,48,033/- 22,32,299/-
Total 22,32,299/-
Amount awarded by tribunal 22,25,592/-
Enhanced amount 6,707/-
10. The Insurance Company is directed to deposit the
enhanced amount of compensation compensation of Rs.6,707/-
with 9% per annum interest within a period of four weeks from
the date of receipt of this order.
11. The present First Appeal and Cross-Objection are partly
allowed. The the judgment and award dated 30.12.2017 passed
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by the learned Motor Accident Claims Tribunal (Main),
Mahesana in Motor Accident Claim Petition No.110 of 2009, is
modified to the aforesaid extent. Record and proceedings be sent
back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
