Gujarat High Court
Oriental Insurance Co.Ltd vs Kokilaben Wd/O Arvindbhai Chhaganbhai ... on 6 April, 2015
Bench: Jayant Patel, G.B.Shah
C/FA/10/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 10 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
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ORIENTAL INSURANCE CO.LTD....Appellant(s)
Versus
KOKILABEN WD/O ARVINDBHAI CHHAGANBHAI DODIYA &
6....Defendant(s)
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Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No. 1
MR MTM HAKIM, ADVOCATE for the Defendant(s) No. 1 5
RULE SERVED for the Defendant(s) No. 6 7
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Page 1 of 13
C/FA/10/2010 JUDGMENT
Date : 06/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Present appeal is directed against the judgment and award passed by the Tribunal dated 24/09/2009 in Motor Accident Claim Petition No. 622 of 2003 whereby, the Tribunal has awarded compensation of Rs.23,03,805/ with the interest @ 9% per annum.
2. The short facts of the case appear to be that on 16/01/2003 at about 2:45 p.m. deceased Arvindbhai Chhaganbhai Dodiya was going on his scooty bearing registration No. GJ16J9927 and when he reached near GIDC, ABC Cross roads, he had taken turn on the right side after showing signal but one Hero Honda motorcycle bearing registration No. GJ16P2435 had overtaken Tata Sumo and as a result thereof, the said motorcycle dashed on the rear side of the scooty and the deceased was thrown away on the road and he sustained serious injuries. He was given treatment and ultimately on 11/06/2003, the deceased succumbed to the injuries. The claim petition was filed for compensation being Motor Accident Claim Petition No. 622 of Page 2 of 13 C/FA/10/2010 JUDGMENT 2003 for Rs.30 lakhs. The Tribunal had, on conclusion of the proceedings, passed by the abovereferred judgment and award. Under the circumstances, present appeal before this Court.
3. We have heard Mr. K. K. Nair, learned counsel for the appellant and Mr. Hakim, learned counsel for the original claimants. The other respondents are though served, none appears on their behalf.
4. The first contention raised by the learned counsel for the appellant was that the vehicle being Hero Honda motorcycle insured with the appellant insurance company was not at all involved in the accident. In his submission, the vehicle has been planted in order to get compensation with the collusion of the owner of the vehicle as well as the police officer who investigated the matter. In his submission, the Tribunal has committed an error in not considering the said aspect and therefore, this Court may consider in the present appeal.
4.1 Whereas, Mr. Hakim, learned counsel appearing for the original claimants, submitted that on behalf of the claimants, required evidence was produced including that of Nilesh, son of the Page 3 of 13 C/FA/10/2010 JUDGMENT deceased, who was stated to be the pillion rider and eyewitness and also the evidence was produced of the police officer who investigated into the matter. In his submission, the chargesheet was filed against the driver of Hero Honda motorcycle and there was no question of collusion at all.
4.2 We have considered the reasons recorded by the Tribunal and the record and proceedings. The examination of the contention shows that on behalf of the claimants, Nilesh Arvindbhai Dodiya had filed affidavit and he was crossexamined by the insurance company. The said witness Nilesh, who is examined at exh. 21, was also the pillion rider. In the crossexamination of the appellant insurance company, no contradiction has come out for showing that there was any collusion between the owner of the Hero Honda motorcycle. The evidence was also recorded of Abdulsatar Karimbhai, the police official, at exh. 42. He was also crossexamined but no contradiction or evidence has come out as regards collusion. On the contrary, both the aforesaid witnesses have specifically denied the alleged collusion. As against the aforesaid evidence coupled with the chargesheet filed against the driver of the Hero Honda motorcycle, no evidence whatsoever has been led on behalf of the insurance company. Page 4 of 13
C/FA/10/2010 JUDGMENT 4.3 Mr. Nair, learned counsel for the appellant insurance company, submitted that no evidence could be led on behalf of the insurance company for showing collusion but the Tribunal was required to independently examine the material for involvement of the vehicle. In his submission, the Tribunal has not properly considered the material.
4.4 We have considered the evidence and the depositions of the witnesses including the crossexaminations. There was no valid ground for the Tribunal to disbelieve the witnesses coupled with the aspect of filing of chargesheet against the driver of the Hero Honda motorcycle, wherein the offence was registered against him. It is hardly required to be stated that in a matter where collusion is alleged by any party to the proceedings, the burden would be upon the party who alleges or who pleads collusion. Such burden can be either discharged by bringing about material in the crossexamination or may be by substantial evidence led by such party. Neither has happened in the present case. Under the circumstances, it cannot be said that the Tribunal has committed error for treating the involvement of the vehicle for the accident in question. Hence, the said contention cannot be Page 5 of 13 C/FA/10/2010 JUDGMENT accepted.
4.5 Mr. Nair, the learned counsel for the appellant insurance company, next contended that the Tribunal has awarded higher amount of compensation, whereas, Mr. Hakim, the learned counsel for the original claimants, submitted that the Tribunal has properly assessed the compensation as per the prevailing legal position and no interference may be made by this Court. 4.6 The examination of the contention shows that the Tribunal has assessed the income of the deceased at Rs.15,000/ per month, after considering the Income Tax Returns. While considering the said aspect, the Tribunal has taken into consideration the gross income but the net income is not considered. In our view, since the date of accident was of 16/01/2003 and the Income Tax Returns were already there on record, it was required for the Tribunal to consider the net income after deduction of the income tax and then the income could have been averaged out and thereafter, the prospective income ought to have been considered by the Tribunal. It is a different matter that for future, the income tax deduction may vary but when the tax amount was already paid, the income after payment of tax could Page 6 of 13 C/FA/10/2010 JUDGMENT be said as the income in the hand of the deceased for his personal utilization or for the benefit of the family. 4.7 The tax returns are produced with the computation of income at exhs. 33, 34 and 35. The Return at exh. 33 for the Accounting Year 20002001 shows that out of the gross income of Rs.2,34,069/, the income tax paid was Rs.40,621/. Hence, the net amount would be Rs.1,93,448/. The second document at exh. 34 is not the Income Tax Return but is the Intimation under Section 143(1)(a) of the Income Tax Act for the very Accounting Year 20002001. However, the third document at exh. 35 is the Income Tax Return for the Accounting Year 20012002. As per the said Income Tax Return, the income of Rs.1,86,629/ is shown, out of which, Rs.26,158/ is paid as income tax. Accordingly, the net income would be Rs.1,60,471/ for the Accounting Year 20012002. If the aforesaid amounts of Rs.1,93,448/ and Rs.1,60,471/ are averaged out, the figure would come to Rs.1,76,959/ per annum and per month it would Rs.14,746/ as against the same, the Tribunal has assessed the income of Rs.15,000/ per month. Even otherwise also, the amount of Rs.14,746/ could be rounded off to Rs.15,000/ per month and hence, we do not find that any error has been Page 7 of 13 C/FA/10/2010 JUDGMENT committed to that extent in the assessment of the income of the deceased.
4.8 However, it appears that the Tribunal has committed error in considering the prospective income of the deceased to the extent of 50% though the deceased was aged 48 years. As per the decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 normal prospective income would be 30% for the age group of 40 to 50 years. Hence, if 30% is added towards the prospective income, such amount would come to Rs.4,500/ per month. Hence, per month including prospective income, the income would be Rs.19,500/ and per annum, it would be Rs.2,34,000/. Out of the said amount, future deduction towards income tax would be required to be considered. The date of accident is 16/01/2003 and the exemption limit in the income tax was Rs.50,000/. Hence, after exemption limit, the taxable income would be Rs.1,84,000/. A judicial notice can be taken of the fact that the exemption limit for the subsequent year has been substantially increased and the tax slabs have also subsequently gone down. Under the circumstances, we find it Page 8 of 13 C/FA/10/2010 JUDGMENT proper to consider the deduction at the rate 10% for income tax. Accordingly, the income tax deduction would be Rs.18,400/ per annum, which can be rounded off to Rs.18,500/. If the income tax deduction is considered of Rs.18,500/, the net amount would come to Rs.2,15,500/ per annum.
4.9 The Tribunal has committed error in deducting 1/3rd amount towards personal expenses in spite of the fact that the number of claimants were exceeding 03. It is an admitted position that number of claimants 05 and therefore, as per the decision of the Apex Court in Sarla Verma (supra), 1/4th of the amount was required to be deducted towards personal expenses of the deceased. Out of the aforesaid amount of Rs.2,15,500/, 1/4th amount would come to Rs.53,875/ and 3/4th amount would come to Rs.1,61,625/, which can be considered towards economic loss per annum.
4.10 The Tribunal has applied multiplier of 11, which is erroneous and as per the decision of the Apex Court in Sarla Verma (supra), proper multiplier would be 13, taking into consideration the age of the deceased as 48 years. Accordingly, if the multiplier of 13 Page 9 of 13 C/FA/10/2010 JUDGMENT is applied to the aforesaid amount of Rs.1,61,625/, the total amount toward future economic loss would be Rs.21,01,125/. 4.11 Mr. Nair, learned counsel for the appellant, did contend that the medical expenses of Rs.2,04,305/, which were already reimbursed in the medi claim policy to the claimants, ought not to have been considered by the Tribunal for the purpose of awarding compensation.
4.12 In our view, the said contention should not detain us further since the Tribunal itself has considered one of the decisions of this Court in the case of Satishkumar Rasiklal Doctor Vs. Baldevbhai Chhaganbhai Thakor and Others, reported in (2007) 14 GHJ 263 = 2007 (1) GCD 727 (Gujarat). We may further add that similar contention came to be considered by the Division Bench of this Court wherein, one of us (Jayant Patel, J.) was a party in First Appeal No.2303 of 2008 decided on 26/06/2012 and this Court, in para 11 of the said decision, has observed as under:
"11. Learned advocate for the appellant also submitted that the claimant who had already received Page 10 of 13 C/FA/10/2010 JUDGMENT some amount under the Medi Claim Policy from another insurance company is not entitled to receive any amount towards the medical expenses from the insurer in the present case. We find that the decision of Hon'ble the Supreme Court in case of National Insurance Company Ltd. Versus Sebastian K. Jacob (supra) relied by him is on different facts and cannot be applied to the facts of the present case. In the said case, there were two different insurance companies for two different vehicles involved in the accident and out of those two different insurance companies, the claimant had already received amount of medical expenses from one of the companies which was the insurer of one of the vehicles. In the present case, respondent No.1 has not received any amount of medical expenses either from the insurer of Maruti Van or from the GSRTC prior to the award of medical expenses passed by the Claims Tribunal. What was received by the claimant is the amount under her independent mediclaim policy, therefore, it cannot be said that the claimant is receiving double amount under the same head. In fact, this Court in the case of Revaben, wd/o. Nathubhai Mohanbhai v/s. Kantibhai Narottambhai Gohil reported in 1994 (8) GLR 1728 has settled this issue by holding that the tortfeasor is liable to pay damages for his tortious act and cannot be permitted to take advantage of his own wrong. It is required to be mentioned that for mediclaim policy, Page 11 of 13 C/FA/10/2010 JUDGMENT separate premium is required to be paid and only then, a person is entitled to claim the amount incurred for medical treatment on the basis of such medi claim policy and, therefore, what is being received under the mediclaim policy is an independent right other than the claim under the Motor Vehicles Act and, therefore, argument advanced by the learned advocate for the appellant is devoid of any merits and stands rejected."
4.13 Under the circumstances, the contention raised by Mr. Nair cannot be accepted. Resultantly, the original claimants would be entitled to the total amount of Rs.2,98,205/ towards medical expenses and hospital charges as already awarded by the Tribunal.
4.14 The Tribunal has further awarded an amount of Rs.10,000/ towards loss of estate and Rs.10,000/ towards loss of consortium and funeral expenses of Rs.5,000/. Considering the recent trend of the Apex Court, as such, the claimants would be entitled to the amount of Rs.1 lakh towards loss of estate and loss of consortium and loss of love and affection plus (+) funeral expenses of Rs.10,000/. Accordingly, if the amount of compensation is considered, the same may go up to Page 12 of 13 C/FA/10/2010 JUDGMENT Rs.25,09,330/ whereas, the Tribunal has awarded Rs.23,03,805/. It appears that the claimants are satisfied with the compensation awarded and they have not preferred any Cross Objections or any appeal for enhancement of the compensation. Under the circumstances, we find that no interference would be called for to the ultimate amount of compensation as already awarded by the Tribunal. Hence, no relief can be grated to the appellant. The appeal is dismissed. Considering the facts and circumstances of the case, no order as to costs.
[ Jayant Patel, J. ] [ G. B. Shah, J. ] hiren Page 13 of 13