New India Assurance Company Ltd vs Laxmiben Jayeshbhi Dube
2025 Latest Caselaw 2314 Guj

Gujarat High Court

New India Assurance Company Ltd vs Laxmiben Jayeshbhi Dube on 31 January, 2025

                                                                                                               NEUTRAL CITATION




                              C/FA/4760/2022                                   ORDER DATED: 31/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 4760 of 2022

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                                               NEW INDIA ASSURANCE COMPANY LTD
                                                             Versus
                                                LAXMIBEN JAYESHBHI DUBE & ORS.
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                      Appearance:
                      MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
                      MR CHIRAG B AYDI(13146) for the Defendant(s) No. 1,2,3,4
                      MR. MAULIK M SONI(7249) for the Defendant(s) No. 1,2,3,4
                      RULE SERVED for the Defendant(s) No. 6
                      RULE UNSERVED for the Defendant(s) No. 5
                      ================================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 31/01/2025

                                                               ORAL ORDER

1. Heard learned advocate Mr. Meena for the appellant

- New India Assurance Company Ltd. and learned advocate Mr. Chirag Aydi for the respondent Nos.1 to 4 - original claimants.

2. The present First Appeal is at the behest of the appellant - Assurance Company challenging judgment and award dated 24.08.2022 passed in MACP No.10 of 2016.

3. Brief facts of the case are as under:-

3.1 That, on 26.10.2015, deceased was proceeding from Adipur to Gandhidham in Motorcycle bearing registration No.GJ.12.BB.9399 alongwith two other persons. One Bipin Yadav driving the said motorcycle and deceased was pillion rider and while on the way said motor vehicle reached near the Tagor Road, Swaminarayan Guruklu, at that time, opponent

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No.1 by driving Bus bearing registration No.GJ.18.X.2219 came from wrong side with rash and negligent manner and without observance of traffic rules collided with the motorcycle and thereby the accident had taken place. As a result, the deceased sustained grievous injuries and during treatment in hospital he succumbed to the injuries. Therefore, the claimants had claimed compensation from the owner and Insurance Company.

4. Solitary argument canvassed by the learned advocate Mr. Meena that learned Tribunal has taken the income of the deceased to Rs.15,000/- beyond higher limits.

He would submit that according to the evidence led by the claimants before the learned Tribunal, the deceased was working as a service person in Nilkanth Refrigeration, which was authorized partner of Whirlpool Company. He would submit that to prove the income of the deceased, the claimants, except producing Exh.-26 and leading oral evidence of partner of Nilkanth Refrigeration, have not done anything. He would further submit that rate of minimum wage at the relevant time was around Rs.8,000/- for the skilled workers and therefore, taking up of Rs.15,000/- as income of the deceased is on higher side. Upon above submissions, he would submit to allow this appeal and to re-asses the compensation which can be granted to the claimants.

5. Per contra, learned advocate Mr. Chirag Aydi, appearing for the claimants, submitted that in reality the deceased was working as a service person in Nilkanth Refrigeration, which was authorized centre of Whirlpool and

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was mainly engaged as a mechanic for AC and Washing Machine as well as Fridge. He would further submit that before the learned Tribunal, the claimants have led the evidence of Ashok Radheshyam Tiwari Exh.-26 and it is proved in his deposition by producing salary certificate (Exh.-46) that the income of the deceased is Rs.22,000/-. Learned Tribunal, considering this aspect, has rightly taken up the income of the deceased to Rs.15,000/-, therefore, there is no reason to interfere with the impugned judgment and award. Upon this submission, he would submit to dismiss this appeal.

6. On perusal of the arguments canvassed by the learned advocates for both the sides, in context tot he evidence on record, what could be noticeable that to establish that deceased Jayesh Vidyadhar Dube was a certified technician to repair AC, Washing Machine and Fridge, manufactured by Whirlpool Company Ltd., no evidence has been led by the claimants that he has done certain course and he is a skilled person and got the knowledge technical how-know-how to repair AC, Washing Machine and Fridge. Learned Tribunal to assess the income of Rs.15,000/- for the deceased, at a rate of minimum wage of Rs.7886/- for skilled labourers as per the notification of the State Government at the rate of minimum wage, adopted Rs.15,000/- which was the income of the deceased on solitary or rather evidence namely, Exh.-26 and Exh.-46. According to this Court, the findings arrived at by the learned Tribunal to adopt the income of Rs.15,000/- is a conclusion without having lacking of sufficient evidence.

7. Learned advocate Mr.Aydi, at this juncture, argued that

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the claimants have more evidence with them and it can be led after matter is remanded back to the learned Tribunal for fresh consideration. Learned advocate Mr. Meena, however, at this juncture, argued to re-calculate and compute the compensation based on the rate of minimum wages.

8. Apt to note that the Tribunal as well as this Court is bestowed with the duty to assess just, fair and adequate compensation for the claimants who have either lost life or limb or near and dear. This Court as well as Tribunal should have to grant fullest opportunity to the claimants to lead necessary evidence to establish income before the Tribunal. The rate of minimum wages can be taken as yardstick in the case where there is no evidence to establish income of the deceased. In the present case, claimants attempted to prove the income of the deceased by leading Exh.-26 and Exh.-46 but, they are insufficient to establish that the deceased was earning Rs.15,000/- per month. Learned advocate Mr. Aydi seeks opportunity for leading more evidence. I have find that such request is innocuous and in the interest of justice, required to be granted.

9. For the reasons recorded hereinabove, present First Appeal is allowed and impugned judgment and award is quashed and set aside. The proceedings of the MACP No.10 of 2016 is remanded back to the learned Tribunal for fresh consideration permitting both the parties to lead fresh evidence and the claim petition shall be decided in accordance with law.

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9.1 The decreetal amount deposited by the appellant before the learned Tribunal shall continue to be invested in the non-cumulative FDR, till final disposal of the MACP No.10 of 2016 which shall be freshly decided.

9.2 The contesting parties are permitted to remain present before the learned Tribunal on 18.02.2025. Needless to state that the Tribunal shall decide the claim petition on the evidence led before it, without being influenced by this order or any observations made in this order.

9.3 Registry shall ensure that the Record & Proceedings of the matter are remitted back to the concerned Tribunal before 18.02.2025.

(J. C. DOSHI,J)

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