Gujarat High Court
National vs Jivrajbhai on 7 August, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/3472/2008 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3472 of 2008
With
CIVIL
APPLICATION No. 9106 of 2008
In
FIRST APPEAL No. 3472 of 2008
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NATIONAL
INSURANCE COMPANY LIMITED - Appellant(s)
Versus
JIVRAJBHAI
KALABHAI BHADANI & 3 - Defendant(s)
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Appearance
:
MS
ANUSHREE KAPADIA FOR MS MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/08/2008
ORAL
ORDER
1. Heard learned advocate Ms.Anushree Kapadia for learned advocate Ms.Megha Jani on behalf of appellant ? National Insurance Co. Ltd.
2. In the present appeal, the appellant ? Insurance Co. has challenged the award dated 26.10.2007 passed by MAC Tribunal, Surat in MACP No.329 of 2006 vide Exh.43. The claims Tribunal has awarded the compensation of Rs.4,27,500/- with 9% interest in favour of claimants.
3. Learned advocate Ms.Kapadia has raised only one contention that the claims Tribunal has committed gross error in applying the multiplier of 17, looking to the age of deceased as 27 years and ignored the age of claimants ? Jivrajbhai K. Bhadani who is aged 48 years and Vasantben Jivrajbhai Bhadani, who is aged 47 years. She has placed reliance on the decision of Apex Court in case of Rameshsingh & Anr. v. Satbirsingh & Anr., reported in 2008 ACJ 814 wherein the Apex Court has considered that in the application u/s. 163A of the M.V.Act, the structured formula - the choice of multiplier ? death of a young man leaving behind aged parents who may not survive long enough to match with high multiplier provided in 2nd schedule applicable to the age of the deceased. The Apex Court has considered that in such case, age of parents is also relevant factor for the choice of multiplier while following the earlier decision in case of Saiyed Ibrahim reported in 2007 ACJ 2816. It is necessary to consider that in the reported decision, the age of the parents was 55 and 57 and therefore, the Apex Court has applied multiplier of 8.
4. In view of the above submission made by learned advocate Ms.Kapadia and considering the decisions of the Apex Court, as referred above and the facts of this case, application made by claimants under Section 163A of the M.V.Act. That on 19.2.2006, deceased Labhubhai was travelling with his friend Ghanshyambhai on motor-cycle No.GH-4-R-6703. The deceased was pillion rider and his friend Ghanshyambhai was driving the said motorcycle. Said Ghanshyambhai was driving the said motorcycle at a moderate speed and on the extreme left side of the road and according to the traffic rules. The opponent No.1 was driving the truck (dumper) No.GH 16 V 5121 at an excessive speed, rashly and negligently and against the traffic rules and due to rash and negligent driving on the part of opponent No.1, the truck (dumper) dashed and collided with the motorcycle on which deceased Labhubhai was travelling. The Labhubhai was shifted to hospital for medical treatment but, unfortunately, during the treatment, he died. He was aged about 27 years and was earning Rs.3200/- per month. The applicants have urged to award the compensation of Rs.5,00,000/- with 15% interest from the date of filing claim petition till the realization and also asked for cost of the petition.
5. The opponent No.3 ? Insurance Co. has filed reply vide Exh.18 where the averments made in the claim petition as well as income, factum of accident were denied. In support of the claim petition, copy of FIR vide Exh.26, copy of Panchnama of place of accident vide Exh.27, copy of injury certificate vide Exh.28, copy of inquest panchnama vide Exh.29, PM Notes vide Exh.30, Medical treatment bills vide Exh.31, copy of driving licence of opponent No.1 at Exh.41, certificate of registration of vehicle vide Exh.42 and copy of certificate of Insurance vide Exh.7 are produced by the claimants.
6. The Tribunal has examined the matter under Section 163A of the M.V.Act and has examined in Para.5 the factum of accident, accidental injuries and resultant death of deceased, involvement of vehicle, factum of insurance, age of deceased on the date of accident and income of deceased on the date of accident. The Tribunal has relied upon Exh.34, affidavit of Jivrajbhai K. Bhadani, who was cross-examined by advocate of the Insurance Co. The affidavit of Jivrajbhai Exh.34 is well supported by documentary evidence which were produced on record. The deceased Labhubhai was aged 27 years and considering the fact which was mentioned in the affidavit that the deceased was working as a skilled labourer and was doing the work of diamond polishing and thereby, earning Rs.3000/- per month. In the cross-examination, it was suggested by the advocate of the Insurance Co. that deceased was not earning Rs.3000/- per month that has been specifically denied by applicant No.1. Therefore, the Tribunal has considered the income of deceased as Rs.3000/- per month and applied 2nd schedule read with Section 163A of M.V.Act, looking to the age of deceased and income. Therefore, the total amount comes to Rs.6,12,000/- as per age and income of deceased which has been reduced by Rs.2,04,000/-, therefore, total comes to Rs.4,08,000/-. The claims Tribunal has awarded Rs.2000/- for funeral expenses, Rs.2500/- for loss of estate and Rs.15,000/- for medical expenses.
7. It is necessary to note at this stage that in the entire award, no contention is raised by the Insurance Co. before the claims Tribunal that claimants are not entitled the multiplier on the basis of the age of the deceased but, the Tribunal ought to have considered the age of the parents. It is also known to the Insurance Co. from the date on which the application was received, that this application is filed by the claimants claiming the compensation under Section 163A of the M.V.Act read with 2nd schedule and in 2nd schedule, there is no provision made that while applying the multiplier, age of parents is also necessary to be taken into account. The 2nd schedule only suggests the income, considering the age of deceased as well as amount specified in the schedule. Therefore, the Insurance Co. wants to make the submission that even in 163A application also, while applying the multiplier, age of the parents is to be taken into account. In that case, they should have to raise this contention before the claims Tribunal at the relevant time and there is no question to wait for occasion to be decided by the Tribunal. It is well within the knowledge of the Insurance Co. that application is filed under Section 163A of the M.V.Act and the Tribunal will grant the compensation or award the compensation as per 2nd schedule. Now, this contention is raised because of the recent decision of the Apex Court, which is nothing but an afterthought on the part of Insurance Co., just with a view to file appeal on such contention. According to my opinion, such technical stand taken by Insurance Co. in the appeal which was not raised at all before the claims Tribunal and therefore, such contention should not have to be entertained by this Court. The reason behind is that if such contention has been raised before the Tribunal by the Insurance Co., the Tribunal had opportunity to deal with such contention which has been raised by the Insurance Co. that whether multiplier is to be applied while considering the age of the deceased or the age of parents. No such opportunity was available to the Tribunal to examine this issue and now to raise a contention before this Court by the Insurance Co. that Tribunal has committed gross error in not applying multiplier, considering the age of the parents. I fail to understand such type of arguments advanced by the Insurance Co. before this Court, which was not at all raised by Insurance Co. before the claims Tribunal. This Court is exercising the power as an appellate authority and it must have to be considered whether, there is an error either on facts or on law, committed by the Tribunal or not while awarding the compensation to the claimants. The basic law on this subject is that a point which was not raised at all before the claims Tribunal, can be considered that such point is not decided by the claims Tribunal and it amounts to error committed by the claims Tribunal. Such arguments are totally unreasonable to the claims as well as the claims Tribunal. Normally, the Tribunal has to rely upon Section 163A and 2nd schedule, which has been attached to the Section. At that occasion, these facts were not brought to the notice of the claims Tribunal by the Insurance Co. That even in 2nd schedule also, while deciding the application, the claims Tribunal should have to take into account the age of the parents at the time of applying multiplier. On this aspect, the Apex Court has rightly observed in recent decision which is delivered on 30.7.2008 in case of Dharmendra Goel v. Oriental Insurance Co. Ltd. in SLP No. 14054 of 2006. No doubt, this decision of Apex Court is under the consumer forum but, observations are squarely applicable to the facts of this case. Not only that, this case also squarely applicable to the conduct of the Insurance Co. In the aforesaid decision, the Apex Court has observed that ?S we are, therefore, unable to accept the company's contention that within a span of seven month from 13th February 2002 to the date of accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act,1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This 'take it or leave it' attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyor's report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy.??. The Apex Court in the aforesaid decision has further observed that ?Seven otherwise, we believe that in such matters, the court must take realistic view and if a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas, as has been argued by the respondent's counsel.??
6. In light of the aforesaid observations made by the Apex Court and looking to the contentions raised before this Court for the first time by the Insurance Co. that is only with regard to reduction of the multiplier pointing out that age of parents is not considered but, forgetting that 27 years person has expired in the accident. For that, they want to take the hyper technical contention that multiplier is to be reduced looking to the age of the parents which will make difference upto 4 to 5 multiplier and not more than that. Against that, in 2nd schedule, the Tribunal cannot consider the future prospect of the deceased because there is no separate provision for it. If the Tribunal is not able to take a future prospect income of the deceased and relying upon the existing income and multiplier amounts suggested in the 2nd schedule, now to raise objection against multiplier by the Insurance Co. to the extent that age of parents is to be taken into account by claims Tribunal, then it is also equally claimants are entitled the compensation on the basis of not existing income but, also to be considered a future prospect income of the deceased. These two things cannot go together. On one hand, contention is that multiplier is on higher side and on other hand, if future prospect is to be considered, then, naturally, the objection must be raised by Insurance Co. that in 2nd schedule there is no independent provisions is made by statutory provisions. Therefore, considering this aspect and applying realistic view that if prospect is to be considered on existing income of Rs.3000/- of the deceased, it must be as per formula adopted by this Hon'ble Court which comes to Rs.4500/- and 1/3rd deduction, then it comes to more than Rs.3000/-. Then also, ultimate result would come to the same or nearby same figure which has been awarded by claims Tribunal in favour of applicants.
7. Therefore, according to my opinion, after all this Court has to consider that whatever the compensation awarded by the claims Tribunal under Section 168 of the M.V.Act, whether it is a just and reasonable compensation awarded by the claims Tribunal or not, looking to the compensation awarded by the claims Tribunal against the claim of Rs.5,00,000/- lacs of the claimants, Rs.4,27,500/- cannot be considered to be on higher side or it is based on whims or in any way arbitrary.
8. The date of accident is 19.2.2006 and deceased was earning Rs.3000/- per month. The claims Tribunal has awarded the compensation of Rs.4,27,500/-. Whether the compensation awarded by the claims Tribunal is just, fair and reasonable or not, one another angle is available to be considered.
If the amount of compensation awarded by claims Tribunal, rate of 9% which has been awarded by claims Tribunal, if compensation is invested in any nationalized bank for a period of five years, whether claimants are able to get Rs.3000/- interest upon the amount of compensation monthly or not. Meaning thereby that Rs.4,27,500/-
invested in any nationalized bank and looking to the rate of interest, whether the claimants are able to get Rs.3000/- monthly interest or not. Therefore, according to my opinion, looking to the present rate of interest in the nationalized bank, the respondents claimants may able to get about Rs.3200/- monthly interest which was the income of the deceased at the time when he expired in the accident. Therefore, respondents claimants are getting the income of the deceased per month by way of interest and that is the practical reason for awarding real compensation to the respondents claimants.
Therefore, according to my opinion, the compensation awarded by the claims Tribunal cannot be considered on higher side in any way.
9. In this case, the deceased was aged 27 years and earning Rs.3200/- per month but, the claims Tribunal has assessed Rs.3000/-. Therefore, the salary of the deceased is to be received by respondents claimants by way of monthly interest.
10. I have considered the contentions raised by learned advocate Ms.Kapadia on behalf of appellant ? Insurance Co. in respect to multiplier but, simultaneously, I have examined the matter that as to what happened to the future prospect income of the deceased which was not taken into account. If multiplier is reduced and future prospect is to be added, then net result would definitely come to near which compensation is awarded by the claims Tribunal. Therefore, on both the aspects, the claims Tribunal has rightly awarded the compensation and looking to the decision of the Apex Court, as referred above, for that no submission was made by the Insurance Co. before the claims Tribunal. Apart from that, in the case cited by learned advocate Ms.Kapadia where the parents is aged 55 and 57 respectively; here in the present case, the age of parents is 47 and 48, so naturally multiplier must be higher than suggested by the trial Court in aforesaid decision relied upon by learned advocate Ms.Kapadia. Therefore, according to my opinion, the claims Tribunal has not committed any error which requires interference by this Court while exercising the power of appellate authority. Therefore, there is no substance in the present appeal. Accordingly, present appeal is dismissed.
11. The amount of Rs.25,000/- deposited with this Court for the purpose of appeal shall be transmitted to the Tribunal concerned.
12. As the First Appeal No.3472 of 2008 is dismissed, no order is necessitated in Civil Application No.9106 of 2008. Accordingly, Civil Application No.9106 of 2008 is disposed of.
(H.K.RATHOD,J.) (vipul) Top