Gujarat High Court
Heirs Of Decd. Merabhai Jagmalbhai vs Rupsing Kanjibhai Dabhi on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/3021/2012 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3021 of 2012
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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HEIRS OF DECD. MERABHAI JAGMALBHAI & ORS.
Versus
RUPSING KANJIBHAI DABHI & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,2,3,4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
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 : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present appeal is filed by the appellants challenging
the common judgment and award dated 07.12.2011 passed by
the learned Motor Accident Claims Tribunal (Auxi.), at
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Surendranagar in MACP No.98 and 232 of 2002, considering
MACP No.98 of 2002 as main petition, wherein and whereby
learned Tribunal has consolidated and partly allowed the both
claim petitions.
2. Heard learned advocate Ms. Amrita Ajmera for the
appellants, learned advocate Mr. H.G. Mazmudar for respondent
No.2 and learned advocate Ms. Karuna V. Rahevar for
respondent No.4. Rule could not be served upon respondent
Nos.1 and 3.
3. The brief facts of the case are as under:-
3.1. Deceased Merabhai Jagmalbhai was driving Jeep bearing
Registration No.GJ-13-F-4111 on 08.12.2001. As he reached
near Vishala Hotel, Chotila on Ahmedabad-Rajkot Highway at
about 11.15 p.m., a truck bearing Registration No.GJ-3-U-5331
being driven by opponent No.1, who was going ahead of the
said jeep suddenly applied brake. The deceased also applied
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brake but another truck bearing Registration No.GJ-3-U-4302
which was coming behind the jeep and was being driven by
opponent No.3 did not apply the brake and heavily dashed with
the rear side of the jeep and because of the heavy impact, the
jeep dashed with the rear part of the truck bearing Registration
No.GJ-3-U-5331. In the said accident, deceased Merabhai
Jagmalbhai died and the co-passenger Abdulbhai Gulabbhai
sustained injuries. Criminal complaint before Chotila Police
Station was filed against the driver of truck bearing Registration
No.GJ-3-U-4302 and he was charge-sheeted. Deceased was
aged about 31 years of age and was serving as a Police
Constable. Two claim petitions were filed out of the said
accident. Heirs of Merabhai Jagmalbhai filed claim petition
bearing MACP No.98 of 2002 for a compensation of
Rs.25,00,000/- against drivers, owners and two insurance
companies of truck bearing Registration No.GJ-3-U-5331 and
truck bearing Registration No.GJ-3-U-4302 respectively.
Abdulbhai Gulabbhai also filed claim petition bearing MACP
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No.232 of 2002 for a compensation of Rs.2,00,000/- against
drivers, owners and two insurance companies of truck bearing
Registration No.GJ-3-U-5331 and truck bearing Registration
No.GJ-3-U-4302 as well as against the owner and insurance
company of jeep bearing Registration No.GJ-13-F-4111 before
the Motor Accident Claims Tribunal (Auxi.) at Surendranagar.
3.2. All opponents were duly served. Owners of all the vehicles
remained absent. Respective insurance companies appeared and
filed Written Statements at Exhibit-20 and 21 in MACP No.98
of 2002 and filed Written Statements at Exhibits-22, 24 and 18
respectively in MACP No.232 of 2002. Issues were framed in
both the claim petitions at Exhibit-27 and 31 respectively and by
a common judgment and award dated 07.12.2011, learned
Tribunal partly allowed both the claim petitions. Original
opponent No.2-United India Insurance Company Limited and
opponent No.4-Oriental Insurance Company Limited were
directed to deposit 50% each of the amount of Rs.8,39,000/- to
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the claimants. The driver of the jeep was held 20% negligent in
the occurrence of accident. The insurance companies of both the
drivers of the truck were found negligent to the extent of 40%
each.
3.3. Being aggrieved and dissatisfied with the impugned
judgment and award passed in MACP No.98 of 2002, the
claimants have filed the present First Appeal challenging the
negligence and quantum of compensation.
4. Learned advocate for the appellants-original claimants
submitted that learned Tribunal has erred in holding 20%
negligence of deceased. Deceased was driving jeep at a
moderate speed, which was between the two trucks. The truck
bearing Registration No.GJ-3-U-5331, which was going ahead
of the jeep suddenly applied brake, so deceased also applied
brake. But the another truck bearing Registration No.GJ-3-U-
4302 which was coming behind the jeep did not apply brake and
dashed with the jeep with full force. Due to such impact, the
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jeep also further dashed with the truck ahead of it. Hence, the
deceased was not negligent in causing such accident but drivers
of the both the trucks were driving in rash and negligent manner,
which resulted into the accident and therefore, both the drivers
of the truck be held equal negligent. It is further submitted that
learned Tribunal has not appreciated the cause of the accident
and has wrongly held driver of the jeep negligent to the extent of
20%.
4.1. Learned advocate for the appellants further contended that
deceased was serving as an unarmed Police Constable and he
was aged about 31 years at the relevant time. Deceased would
have retired in the year 2028, wherein his salary on the date of
retirement would be Rs.26,938/- per month. Claimants have
produced a letter dated 08.09.2011 with statements of
Superintendent of Police, Surendranagar, which also proves the
fact that deceased would have earned monthly Rs.26,938/- and
learned Tribunal has not considered this important evidence and
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has considered only Rs.4838/- income per month and after
adding prospective income, learned Tribunal has granted
Rs.7,000/- per month as the income of deceased.
4.2. In support of his submissions, learned advocate for the
appellants has relied upon the decision of Hem Raj Versus
Oriental Insurance Co. Ltd. reported in 2017 (0) AIJEL-SC
61674.
4.3. It is further submitted that standardisation may be the
increase based on presumption but when there is an actual
evidence led that future prospects was higher than the standard
percentage, there is no bar to the Court in awarding higher
compensation on that basis.
5. Per contra, learned advocate for the respondent- Insurance
Company pointed out that reasoning assigned by the learned
Tribunal does not require any interference. So far as the
negligence is concerned, learned Tribunal has considered the
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evidence and thereafter, held the driver of the jeep negligent to
the extent of 20%. In absence of any convincing contrary
material, the finding on negligence may not be interfered with.
5.1. Another submission which has been canvassed by the
learned advocate for the Insurance Company is on the quantum.
A reliance is placed upon the decision in the case of Divisional
Controller GSRTC Vs. Sandhya Sahegal and Ors. decided on
29.12.2011 in First Appeal No.4827 of 2011 by the Co-ordinate
Bench of this Court, reported in MANU/GJ/1382/2011 :
2012GLH(2)106.
5.2. It is submitted that the compensation has to be determined
on the basis of basic pay with other relevant facts and not on the
basis of estimated promotion. Therefore, it is submitted that as
per the salary slip of the deceased, his salary was Rs.4,838/- per
month. There is no justifiable reason assigned by the learned
Tribunal in arriving at the conclusion of assessment of monthly
income at Rs.7,000/-. It is further submitted that learned
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Tribunal has rightly not considered claim of estimated salary of
deceased.
6. We have considered the submissions canvassed by learned
advocates for the respective parties and perused the record and
proceedings. We are informed that claimants of MACP No. 232
of 2002 has not challenged the award. The respective insurance
companies of both the trucks have also not challenged the
judgment and award. So far as the question of negligence is
concerned, the drivers of both the trucks have not entered in the
witness box and clarified the actual happening of the accident.
Considering the material found on record and considering the
oral deposition of the co-passenger Abdulbhai Gulabbhai, all
three vehicles were found negligent. The claimant of MACP
No.232 of 2002 has also alleged that driver of the jeep bearing
Registration No.GJ-13-F-4111 was also rash and negligent and
also claimed compensation from all drivers, owners and
insurance companies of the offending three vehicles. On such
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factual position, and more particularly, except a bare challenge
in finding the deceased negligent to the extent of 20%, we do
not find any substance to alter the finding on negligence and we
confirm that all the three vehicles namely two trucks and jeep
are negligent to the extent of 40%, 40% and 20 respectively.
7. Another question which is required to be dealt with
whether Tribunal has erred in not considering the claim of
estimated promotion of deceased and/or while ascertaining the
income of the deceased, the salary at the time of retirement to be
considered or not. Similar question arose before the Co-ordinate
Bench of this Court in the case of Divisional Controller
GSRTC (supra), the Co-ordinate Bench had an occasion to
discuss the decision of Oriental Insurance Company Limited
Versus Jasuben & Ors. reported in AIR 2008 SC 1734. In the
decision of Jasuben (supra), the Apex Court has observed that
salary would be revised or not was not known at the time when
the deceased died. Only because such salary was revised at a
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later point of time, same by itself would not have been the factor
which could have been taken into consideration for determining
the amount of compensation. The law on the question of
determining compensation on the basis of income is put to rest
by catena of decisions. The law which prevails upon as on today
is that the compensation should be determined considering the
earnings of the deceased at the time of accident. Prospective
income is not out of consideration while determining the
income. Hence, Tribunals are expected to consider the income
on the date of accident and further to add prospective income of
the person.
8. In the case of Divisional Controller (supra), in paragraph
No.6, the Co-ordinate Bench has observed that promotion is an
incidence of service. Nobody has a right of promotion and it
would not be in the interest of justice to infer promotion or
assume promotion and fix the future income of the deceased
based on the salary of the promotional post.
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9. In the present case, Exhibit-51 which is a pay slip of
deceased, is clear and convincing piece of evidence to determine
the income of deceased at the time of accident. The income at
the time of retirement is not relevant factor to be considered
while determining the compensation. The loss of dependency
should be calculated on the basis of basic pay drawn by the
deceased at the time of death.
10. The decision relied upon by the learned advocate for the
appellants is of no assistance to substantiate the claim of the
appellants and therefore, the same is not applicable to the facts
of the present case.
11. Exhibit-51 which is a pay slip of deceased which indicates
gross pay of Rs.4,838/-, out of which Rs.100/- towards medical
Allowance, Rs.20 as Cycle Allowance, Rs.25 toward Washing
allowance and Rs.20 toward professional tax to be deducted.
Deducting Rs.165/- from Rs.4838/- the gross pay of deceased
would come to Rs.4673/- per month.
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12. Looking to the age of the deceased, prospective income to
be added at 50% and ¼ to be deducted towards personal and
living expenses, the claimants are entitled to the following
amount of compensation.
Particulars Amount in Rs.
Salary -
(Rs.4838/- less Rs.165/-) 4,673/-
50% Prospective Income 7,009/-
(Rs.4673/- + Rs.2336/- [50%])
Less ¼ Towards Personal Expenses 1,752/-
(Rs.7,009/- x ¼)
Monthly Income (Rs.7,009/- - Rs.1,725) 5,257/-
Income per annum Rs.5257/- X 12 63,084/-
Loss of dependency 10,09,344/-
(Rs.5257/- x 12 x 16)
Loss of consortium 1,93,000/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total... 12,38,644/-
Less 20% Negligence 2,47,728/-
Total... 9,90,916/-
Less compensation awarded by the 8,39,000/-
Tribunal
Enhanced Compensation 1,51,916/-
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13. Thus, the enhanced amount of compensation of
Rs.1,51,916/- @ 9% per annum with proportionate costs to be
paid by the respective Insurance Companies in their respective
shares of negligence from the date of filing of the claim petition
till its realization within a period of four weeks from the receipt
of copy of this judgment and order.
14. In view of the above, the appeal is partly allowed. The
impugned common judgment and award dated 07.12.2011
passed by the Motor Accident Claims Tribunal (Auxi.), at
Surendranagar in MACP No.98 and 232 of 2002 is modified to
the aforesaid extent. The record and proceedings to be sent back
to the concerned Tribunal / Court.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
