Gujarat High Court
Reliance General Insurance Company Ltd vs Narendrasing Kesasing Ravat on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/1530/2015 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1530 of 2015
With
R/CROSS OBJECTION NO. 13 of 2016
In
R/FIRST APPEAL NO. 1530 of 2015
With
R/FIRST APPEAL NO. 1531 of 2015
With
R/CROSS OBJECTION NO. 14 of 2016
In
R/FIRST APPEAL NO. 1531 of 2015
With
R/FIRST APPEAL NO. 1313 of 2015
With
R/FIRST APPEAL NO. 1314 of 2015
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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RELIANCE GENERAL INSURANCE COMPANY LTD
Versus
NARENDRASING KESASING RAVAT & ORS.
================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR.HIREN M MODI(3732) for the Defendant(s) No. 6.1,6.2,6.3,6.4
RULE SERVED for the Defendant(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 31/01/2025
Page 1 of 21
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Present First appeals, Cross Appeals and Cross-
Objections are filed by the respective appellants challenging the
common judgment and award dated 27.02.2015 passed by the
learned Motor Accident Claims Tribunal, (Aux.), Panchmahals
at Godhra. First Appeal No.1530 of 2015 together with Cross-
Objection No.13 of 2016 and First Appeal No.1313 of 2015 are
emanating from MAC Petition No.930 of 2010. First Appeal
No.1531 of 2015 together with Cross-Objection No.14 of 2016
and First Appeal No.1314 of 2015 are emanating from MAC
Petition No.931 of 2010.
2. We have heard learned advocate Mr. Vibhuti
Nanavati for the appellants and learned advocate Mr. Hiren M.
Modi for the respondent Nos.6.1 to 6.4 in First Appeal No.1530
of 2015 and First Appeal No.1531 of 2015. None appeared for
respondent No.5. We have also heard Mr. Hiren M. Modi for the
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appellants appearing in First Appeal No.1313 of 2015 and First
Appeal No.1314 of 2015. None appeared for the respondent/s.
3. Since all the appeals are emanating from the same
facts and submissions, therefore, appeals are taken up for final
disposal forthwith.
4. The brief facts of the case are as under:-
4.1. On 26.10.2010 at approximately 3.30 a.m. deceased
Manojbhai Kalidas Panchal along with his wife Jyotiben alias
Joyotikaben Manojbhai Panchal, daughter Hetalben and son
Sagar along with other relatives were travelling in Qualis Car
No.GJ-05-AR-4389. They were travelling from Shirdi to
Godhara. When the car reached near Anandpura Village on
Vadodara-Halol Highway, a truck bearing Registration No.GJ-
12-Y-9515 was going ahead of the Qualis Car in a very high
speed. The driver of the Qualis Car i.e. original opponent No.4
was also driving the car at an excessive speed and in rash and
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negligent manner. The driver of the truck suddenly applied
breaks and stopped the truck in the middle of the road. As the
driver of the Qualis Car lost control, dashed with the rear side of
the truck. Resultantly, Manojbhai Kalidas Panchal, his wife,
daughter and son suffered serious injuries and due to the
accidental injuries, Manojbhai Kalidas Panchal and his wife
Joyotiben alias Jyotikaben died. Daughter Hetal and son Sagar
sustained injuries. The Qualis Car belonged to the ownership of
original opponent No.5. Opponent No.4 was driving the Qualis
Car at the relevant point of time. Original opponent Nos. 1 and 2
are the driver and owner respectively of the truck. Opponent
No.3 is the Insurance Company of the offending truck and
opponent No.6 is the Insurance Company of the Qualis Car. The
heirs of deceased Manojbhai Kalidas Panchal namely minor
daughter Hetal Manojkumar Panchal, minor son Sagar
Manojkumar Panchal, Kalidas Babarbhai Panchal and Leelaben
Kalidas Panchal filed MACP No.930 of 2010 for a
compensation of Rs.60,00,000/- before the learned Motor
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Accident Claim Tribunal, District Panchmahals at Godhra and
learned Tribunal has awarded Rs.14,63,108/- with interest @
9% per annum from the date of claim petition till its realization.
The heirs of Jyotiben alias Jyotikaben has filed MACP No.931
of 2010 for a compensation of Rs.8,00,000/- before the learned
Motor Accident Claim Tribunal, District Panchmahals at
Godhra and learned Tribunal has awarded Rs.5,65,500/- with
interest @ 9% per annum from the date of claim petition till its
realization. The respective insurance companies i.e. opponent
Nos.3 and 6 filed their respective written statements at Exhibit-
27 and Exhibit-49 respectively and contested the claim petition.
Opponent Nos.1, 2 did not file written statement. Opponent
Nos.4 and 5 filed joint written statement at Exhibit-31. After
considering the oral as well as documentary evidences, the
learned Tribunal partly allowed the claim petition against
opponent Nos.1, 2 and 3 i.e. the driver, owner and insurance
company of the truck and dismissed the petition against
opponent Nos.4, 5 and 6 i.e. the driver, owner and insurance
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company of Qualis Car. The learned Tribunal passed an award
directing opponent Nos.1, 2 and 3 jointly and severally to pay
compensation of Rs.14,63,108/- and Rs.5,65,500/- in MACP
No.930 of 2010 and MACP No.931 of 2010 respectively with
interest at the rate of 9% per annum from the date of claim
petition till its realization with proportionate costs. Being
aggrieved and dissatisfied with the aforesaid judgment and
award, the appellants in First Appeal No.1530 of 2015 and First
Appeal No.1313 of 2015 and the appellants in First Appeal
No.1531 of 2015 and First Appeal No.1314 of 2015, are before
this Court challenging the aforesaid impugned judgment and
award.
5. Learned advocate for the appellants submitted that
the finding recorded by the learned Tribunal on the issue of
contributory negligence holding the truck solely negligent in
causing the accident is against the oral as well as the
documentary evidence. The oral deposition of the driver of the
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truck at Exhibit-166 clearly mentions that the truck was
stationary at the edge of road due to breakdown. It is further
submitted that if the truck driver had stopped the truck in the
middle of the road, the entire front portion of the Qualis would
have dashed with the rear portion of the truck, however, the
Qualis driver was not injured in the said accident. The
panchnama of the place of accident further reveals that the
distance between the truck and the car was four feet after the
impact, which clearly indicates that the Qualis Car was in such a
high speed that after the impact the Car was pushed back about
four feet. As per the case of the claimants, the journey from
Shirdi was started on 25.06.2010 in the morning and the
accident took place on 26.06.2010 at 3:30 a.m. This means that
the driver of the car was plying the car for more than 20 hours.
Such a long driving would lead to fatigue to the driver of the car
and because of the negligence of the car driver, the accident
took place. It is further submitted that the learned Tribunal has
completely overlooked the admission of the driver of the Qualis
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Car who has deposed that he saw the truck at the distance of 250
to 300 feet before the occurrence of the accident. The
panchnama at Exhibit-68 indicates that no brake marks are
found on the road. When the driver of the car had seen the truck,
he would have applied the brakes and could have avoided the
accident. It is further submitted that the truck was standing on
the road because of the burst of rear tyres on the conductor side.
It is further submitted that the oral deposition of the driver of the
Qualis Car-opponent No.4 at Exhibit-188 clearly establishes that
car driver was negligent in the occurrence of the accident. No
other submissions except the above are canvassed by learned
advocate for the appellant.
6. Per contra, learned advocate Mr. Hiren M. Modi for
original claimants-present respondent Nos.6/1 to 6/4 supported
the award and submitted that offending truck was stationary on
the middle of the road without any indicator, sings or signals.
The fact which is pleaded by the driver of the truck in his oral
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deposition further strengthens the case of the claimants on the
issue of negligence. It is further submitted that driver of the
truck did not take care while stopping the truck on the middle of
the road. It is further submitted that because of the full speed of
the Qualis Car, the driver of the Qualis Car could not control the
car and it dashed with the back portion of the truck in which the
front part of the car was completely broken and damaged. It is
further contended that the truck driver did not lodge any
complaint. This conduct also establishes the fact that the driver
of the truck was equally responsible for the occurrence of the
accident.
7. Learned advocate for respondent No.6-United India
Insurance Company submitted that the learned Tribunal has
rightly decided the issue of negligence and exonerated opponent
Nos.4, 5 and 6 from the liability of compensation. The oral
deposition of the driver of the truck and the panchnama at
Exhibit-68 indicates that the truck driver was negligent in
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stopping the truck in the middle of the road without any
indicator, sign or signal. The finding arrived at by the learned
Tribunal that the Insurance company of the car has also
examined investigation officer at Exhibit-211A and the said
witness has deposed that he did not find any reflector or
indicator showing stoppage of the truck on the road. It is further
submitted that the other claimants who sustained injuries in the
said accident has also deposed that the truck driver was
negligent in the occurrence of an accident. Learned advocate for
the opponent-Insurance Company has relied upon Sections 121,
122 and 126 of the Motor Vehicles Act and Rule No.15 of Road
Regulations, 1989.
8. We have considered the submissions of the learned
advocates for the parties and also perused the record and
proceedings. The learned Tribunal has partly allowed the claim
petition by exonerating opponent Nos.4, 5 and 6 i.e. owner,
driver and insurance company of the Qualis Car. The only
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question which is under consideration is on the basis of the
evidence on record whether negligence can be attributed solely
on the shoulder of the truck driver or not. Allegations and
counter-allegations are levelled by the drivers of the respective
vehicles in shirking away the responsibility of the occurrence of
the accident. As per the panchnama at Exhibit-68, the width of
the road is 22 feet and there are no brakemarks on the road. The
claimants of all the claim petitions have stated that driver of the
Qualis Car was rash and negligent and was plying the Qualis
Car at an excessive speed. As per the say of the driver of the
Qualis Car, whose oral testimony is recorded at Exhibit-188, he
had seen truck in a stationary condition before 250 to 300 feet.
In absence of any material to indicate any steps or actions being
taken by the driver of the Qualis Car in avoiding the accident, in
our view, the learned Tribunal has committed an error in not
holding composite negligence of both the drivers in the
occurrence of an accident. The fact which has been observed by
the learned Tribunal that driver of the Qualis Car was not
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injured in the accident may be because, he would have tried to
take the car on the right hand side of the road. The panchnama at
Exhibit-68 further reveals that the distance between the rear part
of the truck and the Qualis Car was four feet. The version of the
driver of the truck at Exhibit-166 is that the rear tyres of the
truck got burst and the truck was parked on the left hand side of
the road near to the service road divider and the right side of the
road was sufficiently open for other vehicles to pass by. The
panchnama supports the version of the truck driver, which
indicates that the rear side wheels on the conductor side were
found in burst condition. The condition of the Qualis Car also
indicates the force at which the car would have dashed with the
rear portion of the truck. Therefore, considering the panchnama
as well as the version of the claimants, it is found that both the
drivers were negligent. Now the question remains as to which
driver of the offending vehicles has contributed more in the
occurrence of the accident. On the basis of the evidence and the
discussions made above, we are of the view that the driver of the
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truck has contributed 70% in the occurrence of an accident and
the driver of the Qualis Car has contributed 30% in the
occurrence of the accident.
9. Thus, First Appeal No.1530 of 2015 and First Appeal
No.1531 of 2015 are party allowed. The impugned judgment
and award is modified to the extent that original opponent Nos.1
to 6 are jointly and severally liable to pay the compensation to
the claimants in the proportion of 70% and 30% respectively.
The appellant-Insurance Company is also entitled to refund of
excess amount of compensation that has been deposited before
the learned Tribunal. The learned Tribunal shall refund the
excess compensation to the appellants. Rest of the award
remains unaltered. No order as to costs. Record and
proceedings, if any, be sent back to the learned Tribunal
forthwith.
10. First Appeal Nos.1313 of 2015 is filed by the original
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claimants for enhancement of the compensation. Learned
advocate for the original claimants submitted that the learned
Tribunal has committed an error while considering the income
of the deceased Manojbhai Kalidas Panchal at Rs.1,18,525/- per
annum. The learned Tribunal has not considered that the
deceased was a practicing advocate and was doing agricultural
activities as well as animal husbandry work and thus, he was
earning Rs.60,000/- per month . It is submitted that income tax
return of the year 2010-11 clearly establishes that deceased was
having income of Rs.1,46,803/- per annum. It is submitted that
the gross income as per Exhibit-111 which is statement showing
income at Rs.1,28,347/- for the assessment year 2009-10. The
learned Tribunal has considered deductions other than income
tax from the gross total income. It is further submitted that from
the gross income, only income tax has to be deducted and no
other deductions can be considered while assessing the income
of the deceased. Thus, the gross total income comes
Rs.1,28,347/- at the relevant point of time. The learned tribunal
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has considered 30% as future prospective income as the age of
the deceased at the time accident was 40 years and 16 days and
the Tribunal ought to have considered future prospective income
at 50%.
11. Per contra, learned advocate Mr. Vibhuti Nanavati
for respondent No.3-Insurance Company submitted that while
considering the income of the deceased, except deduction of
income tax, no other deductions to be considered. In the present
case, as per the Exhibit-111, the gross total income of deceased
for the assessment year 2009-10 was Rs.1,28,347/- per annum.
However, it has been pointed out by learned advocate for the
Insurance Company that in the balance sheet for the period
between 2008 to 2009, no agricultural land has been shown.
Therefore, the income from agriculture, as claimed by the
claimants is not established. Even in the balance sheet income
from agriculture is also not disclosed and therefore, the claim of
Rs.60,000/- per month under the head of agricultural income is
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not established and therefore, the claim of Rs.1,46,803/- per
annum cannot be accepted. So far as Exhibit-112, which has
been relied upon by the claimants to substantiate the total
income at Rs.1,46,803/- is concerned, the same has no relevance
in determining the income for the reason that the income tax
return has been submitted with the income tax department after
the date of accident and therefore, the income after the accident
cannot be taken into consideration for awarding compensation.
12. In our opinion, profit and loss account and the
balance sheet for the financial year 2008-09 produced along
with Exhibit-111 neither reflect any agricultural land nor any
income from agricultural activities. Exhibit-112 which is a
statement of return details is submitted on 06.09.2010, which is
after the accident occurred on 26.06.2010. Learned Tribunal has
considered the income stated in Exhibit-111. The income which
ought to have been considered for determining the annual
income of deceased should be Rs.1,28,347/- per year and not
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Rs.1,18,525/- per annum. The Tribunal has erred in deducting
Rs.9,822/- as deductions. While considering the income of the
deceased only amount of income tax to be deducted from the
gross total income. In the present case, we hold that
Rs.1,28,347/- is the income per year. The deceased was aged
about 40 years and 16 days hence, applying the ratio laid in the
case of National Insurance Company Limited Vs. Pranay
Sethi and others reported in (2017) 16 SCC 680, the addition of
30% in the income of Rs.38,504/- which comes to
Rs.1,66,851/-. The deductions from the income towards
personal expenses to the extent of 1/3 remains unaltered.
Considering three dependents amount comes to Rs.55,617/- per
year. And after deducting the amount of personal expenses, the
future annual loss of dependency would come to Rs.1,11,234/-.
As per the case of Sarla Verma (supra), Tribunal has adopted
14 as multiplier, therefore, the claimants suffered future loss of
dependency of Rs.15,57,276/- (Rs.1,11,234/-X14 =
Rs.15,57,276/-). Accordingly, the claimants are entitled to
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following amount of compensation;
Amount Rs. Head under which compensation is awarded
Rs.15,57,276/- Loss of dependency
Rs.15,57,276/- Total
13. Both the Insurance Companies i.e. respondent Nos.3
and 6 are hereby directed to pay the compensation as per their
share to the claimants with the interest @ 9% per annum from
the date of claim petition till realization. The amount which has
been deposited by the respondent No.3-Insurance Company be
adjusted towards the total enhanced compensation. First Appeal
No.1313 of 2015 is partly allowed. Record and proceedings, if
any, be sent back to the learned Tribunal forthwith.
14. First Appeal No.1314 of 2015 is filed by the original
claimants for enhancement of the compensation. Learned
advocate for the original claimants submitted that the learned
Tribunal has committed an error while considering the income
of the deceased at Rs.3,000/- per month. It is further submitted
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that deceased Jyotikaben was doing sewing an embroidery work
and was earning Rs.4,000/- per month.
15. Per contra, learned advocates for both the insurance
companies have submitted that the learned Tribunal has rightly
assessed the monthly income of deceased Jyotikaben and in
absence of any material, learned Tribunal has considered a
notional income as per the decision of the Hon'ble Supreme
Court in the case of Sarla Verma v. Delhi Transport Corporation
& Ors. reported in [(2006) 9 SCC 121].
16. Since the tribunal has considered the notional income
of the deceased in absence of any cogent evidence to
substantiate the earnings deceased Jyotikaben and except the
bare contention that the learned Tribunal ought to have
considered Rs.4,000/- as monthly income of deceased
Jyotikaben, we are not inclined to interfere in the assessment of
the monthly income of deceased Jyotikaben. Hence, First
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Appeal No.1314 of 2015 is devoid of merits and the same is
dismissed. The Cross-Objections filed by the original opponent
No.5-United India Insurance Company Limited is mainly on the
ground that the Qualis Car was hired by the deceased and the
Insurance Company is not liable for the compensation. It is also
contended that by learned advocate for the Insurance Company,
United India Insurance Company Limited, that the FIR
explicitly states that the car was hired for a trip to Shirdi. The
insured car was used for hire and reward, the policy does not
cover such risk. On the quantum aspect, it is submitted that the
learned Tribunal has erred in awarding compensation by
applying the wrong multiplier and by miscalculating the
compensation for loss of estate.
17. In our opinion, the grounds for challenge by way of cross-
objections are not entertainable for the aforesaid discussion. The
present appellant could not place on record any cogent and
convincing material to substantiate their contention regarding
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use of the Qualis Car for hire and reward purpose. The quantum
of compensation which has been decided by this Court in the
aforesaid paragraphs eventually disentitles the appellant in
succeeding in the cross-objections. Resultantly, Cross-
Objections are dismissed.
18. Record and proceedings, if any, be sent back to the
concerned learned Tribunal forthwith.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
