Gujarat High Court

Reliance General Insurance Co. Ltd vs Nai Rekhaben Wd/O Prakashbhai Virabhai on 7 May, 2025

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                             C/FA/1390/2025                                      ORDER DATED: 07/05/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/FIRST APPEAL NO. 1390 of 2025

                                                          With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                           In R/FIRST APPEAL NO. 1390 of 2025
                      ==========================================================
                                      RELIANCE GENERAL INSURANCE CO. LTD.
                                                     Versus
                                 NAI REKHABEN WD/O PRAKASHBHAI VIRABHAI & ORS.
                      ==========================================================
                      Appearance:
                      MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                                                          Date : 07/05/2025

                                                            ORAL ORDER

[1] Being aggrieved and dissatisfied by the judgment and

award dated 4th May 2024 passed in Motor Accident Claim Petition

No.53 of 2016 by the learned 6 th Additional District Judge, Motor

Accident Claims Tribunal (Ancillary), Banaskantha at Deesa, the

Insurance Company - original opponent No.2 has approached this

Court by way of this First Appeal under Section 173 of the Motor

Vehicle Act, 1988 (for short, "the Act").

[2] The claimant has preferred Claim Petition under section

166 of the Act before the Tribunal claiming, inter alia,

compensation of Rs.44,66,250/- with 12% interest for untimely

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death of Prakash Virabhai Nai. However, the Tribunal has awarded

a sum of Rs.44,89,365/- under various heads as can be stated as

under:

"(8.4) Thus, the loss of future income could be estimated as below:

ADMISSIBLE AMOUNT OF COMPENSATION A LOSS OF DEPENDENCY + 4220365 B LOSS OF ESTATE + 16500 C FUNERAL EXPENSES + 16500 D LOSS OF LOVE AND AFFECTION (i.e. + 40000 10,000/- x 4) E LOSS OF SPOUSAL CONSORTIUM (Wife) + 44000 F LOSS OF PARENTAL CONSORTIUM (Son) + 44000 G LOSS OF FILIAL CONSORTIUM (Mother & + 88000 Father)

I PAIN, SHOCK, SUFFERING, ETC. + 5000 J ATTENDANT, TRANSPORTATION, Etc. + 10000 K LOSS OF ENJOYMENT + 5000 SUB TOTAL (In Rs.) 4489365

negligence

140 MVA (Exh. 5 = Not pressed) TOTAL ADMISSIBLE AMOUNT OF COMPENSATION 4489365 (in Rs.)

[3] Brief facts of the case can be stated as under:

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[3.1] On 23th November 2015 at about 4.30 p.m., the

deceased Prakash Virabhai Nai was driving motorcycle No.GJ-8B-

9173. While passing from Palanpur to Siddhpur Highway Road,

near I Mata Hotel from Dharewada from Palanpur side, one Tanker

No.GJ-02-VV-2781 driven in rash and negligent manner by its

driver and dashed with the motorcycle of the deceased from the

backside. The deceased Prakash Virabhai Nai received grievous

injuries from the said accident and ultimately, succumbed to the

injuries.

[3.2] The claimant, being heir of Prakash Virabhai Nai, has

approached the learned Tribunal by way of Claim Petition under

Section 166 of the Act claiming compensation of Rs.44,66,250/-

with 12% interest. Upon service of notice, the appellant - Insurance

Company appeared through its lawyer and filed written

submissions below Exhibit : 20 opposing, inter alia, the Claim

Petition in toto.

[3.3] The learned Tribunal, however, after having

appreciating the evidence placed on record, documentary evidence

as well as oral, was pleased to hold the driver of the Tanker as

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negligent for the accident in question. The learned Tribunal,

thereafter, proceeded to award compensation under the various

heads, for which, the income of the deceased was considered as

Rs.2,36,435/- per annum keeping in mind the Income Tax Return

of year 2015-16. Since the deceased was having four dependents at

the time of accident, the learned Tribunal had adopted ¼

deduction. Considering the age of the deceased as 28 years, 40%

future prospective income was also added and the multiplier was

considered as 17. Thus, compensation under the head of loss of

dependency of Rs.42,20,365/- came to be awarded. The learned

Tribunal, thereafter, awarded Rs.16,500/- compensation under the

head of loss of Estate to each of the claimants. The learned

Tribunal was pleased to award Rs.16,500/- compensation under

the head of funeral expenses. The learned Tribunal has also

awarded compensation of Rs.10,000/- to each of the claimants

(Rs.10,000/- x 4 = Total Rs.40,000/-) under the head of love and

affection as well as Rs.44,000/- to each of the claimants under the

head of loss of consortium. The Tribunal was also pleased to award

compensation of Rs.5,000/- under the head of pain, shock and

suffering and Rs.10,000/- under the head of attendant,

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transportation and Rs.5,000/- under the head of loss of enjoyment.

Thus, in all, the learned Tribunal awarded compensation of

Rs.44,89,365/- with 9% interest.

[4] Being aggrieved and dissatisfied with the aforesaid, the

appellant - Insurance Company has approached this Court by way

of this First Appeal.

[5] I have heard learned advocate Mr. Rathin Raval for the

appellant - Insurance Company.

[6] Learned advocate Mr. Rathin Raval for the appellant

has mainly raised three contentions as under:

[6.1] Learned advocate Mr. Raval submitted that negligency

on the part of the driver of the Tanker assessed by the Tribunal is

not justified. Learned advocate Mr. Raval submitted that the

Tribunal has committed a serious error in holding the driver of the

Tanker as sole negligent without any cogent evidence on record.

[6.2] Learned advocate Mr. Raval further submitted that so

far as quantum is concerned, the Tribunal has not properly

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appreciated the evidence on record and that has resulted into

higher assessment of income.

[6.3] Learned advocate Mr. Raval thirdly contended that the

driver of the Tanker was not having a valid driving license and

thereby, the Insurance Company cannot be made responsible of

such violation of the terms and conditions of the policy.

[7] By making above submissions, learned advocate Mr.

Raval for the appellant - Insurance Company has requested this

Court to allow the present appeal.

[8] I have gone through the relevant documentary evidence

in the form of paper book produced by the learned advocate Mr.

Raval for the appellant - Insurance Company.

[9] Having considered the documentary evidence in the

form of paper book as well as the submissions made by the learned

advocate for the appellant, a short question that falls for

consideration of this Court is whether the award passed by the

Tribunal can be said to be justified and legal?

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[10] So as to decide the aforesaid question, in my view, first

of all, it would be apt to take notice of the reasoning given by the

learned Tribunal on the basis of the material produced on record.

The relevant observations made in para 7.2 of the judgment and

award can be read as under:

"(7.2). It is true that this witness is not eye witnesses. But, if we go through the complaint at Exh.-21, Place Panchnama at Exh.- 22 & P.M. Report at Exh.-24, it states about the accident took place, in which the deceased died in vehicular accident. Deceased was riding the Motor cycle No. GJ.8.B.9173 which was dashed by Tanker No. GJ.02.VV.2781 from back side. F.I.R. and Charge-sheet is filed against the driver of the Tanker. Moreover, the Opponents have not examined the driver of the Tanker. Further, being a big vehicle the driver of the Truck must take much more care while driving of his vehicle especially on highway road. So the driver of Tanker is 100% liable. The Opponent No. 1 is the owner of Truck which is evident from R.C.Book of Truck at Exh.-25 and Opponent No.2 is the Insurance Company of the Truck which is evident from Insurance Policy at Exh.-40 in which the policy period is shown as dtd.29/12/2014 to dtd.28/12/2015 and the accident was occurred on dtd.23/11/2015 and so the insurance policy was in force at the time of accident and therefore, Opponent No.2 shall have

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to indemnify the Owner i.e. Opponent No.1. Therefore, Opponent No.1 & 2 being owner and insurance company will be jointly and severally liable to pay the compensation. Hence, I answer the ISSUE No.1 in AFFIRMATIVE."

[11] Considering the aforesaid observations made by the

Tribunal, in my view, the Tribunal cannot be said to have

committed any illegality in holding the driver of the Tanker as sole

responsible, I say so because the Insurance Company did not

examine the driver of the Tanker. So as to discharge the onus of

negligency on the part of the driver, in my considered opinion, the

driver of the offending vehicle ought to have been examined by the

Insurance Company. In the instant case, admittedly, the driver of

the Tanker has not been examined and / or not stepped into the

witness box. In such eventuality, so far as the aspect of negligency

is concerned, the driver of other vehicle involved in the accident

cannot be viewed adversely. Further, it appears that the driver of

the Tanker dashed the motorcycle from the backside, therefore,

cumulatively, this Court is of the opinion, that the Tribunal has not

committed any error in holding that the driver of the Tanker was

the sole negligent.

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[12] So far as the quantum part is concerned, this Court has

to see whether the compensation under the head of loss of

dependency is awarded appropriately or not? So as to decide the

compensation under the head of loss of dependency, income of the

deceased or the victim deserves to be considered. In the instant

case, income of the deceased came to be considered as

Rs.2,36,435/- per annum. The learned Tribunal, while determining

the income, has relied upon the Income Tax Return of the deceased

for the year 2015-16. Thus, in my considered opinion, assessment

of income taken into consideration by the Tribunal on the basis of

the Income Tax Return cannot be said to be faulty. Further, keeping

in mind the age of the deceased as 28 years, multiplier adopted of

17 is also perfectly justified. Keeping mind the age of the deceased,

future prospective income of 40% added by the Tribunal is also

found in consonance with the decision of the Hon'ble Apex Court.