Gujarat High Court
National vs Pritamsinh on 11 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/254/2010 12/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 254 of 2010
With
CIVIL
APPLICATION No. 1545 of 2009
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NATIONAL
INSURANCE COMPANY LIMITED - Appellant(s)
Versus
PRITAMSINH
NATWARSINH CHAUHAN & 3 - Defendant(s)
=========================================================
Appearance :
MS
MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1, 1.2.1, 1.2.2,
1.2.3,1.2.4 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/02/2010
ORAL
ORDER
Heard learned Advocate Ms. Megha Jani appearing on behalf of appellant-National Insurance Company Limited. The appellant Insurance Company has challenged the award passed by Motor Accident Claims Tribunal, Godhra in MACP No.1707/2002 Exhibit 34 decided on 16.05.2009. Before Claims Tribunal, Godhra, respondents No.1 and 2 remained absent and appellant-National Insurance Company Ltd. has appeared. Claims Tribunal has awarded Rs.6,86,000/= being amount of compensation in favour of respondent claimant with 7.5% interest. Claim petition was filed by claimant under Section 166 of Motors Vehicle Act. Claim petition arises out of an accident which took place on 15.12.2001 as the deceased Mahendrasinh Natwarsinh Chauhan who was going on his bicycle was dashed by a Jeep bearing registration No.GJ-17-C-4911. Claims Tribunal held the driver of the jeep negligent for the accident and awarded compensation of Rs.6,86,000/= to the claimant and it was challenged by appellant to the extent of Rs.2,79,000/= only. Learned Advocate Ms. Megha Jani submitted that income of deceased has been wrongly assessed by Claims Tribunal as Rs.3,000/= without any cogent evidence being produced by claimant. She further stated that the deceased was unmarried. Therefore, as per recent decision of Apex Court in the case of Sarla Verma (Smt) and Others V. Delhi Transport Corporation and another reported in 2009 6 Scale 129 one half amount is to be deducted towards personal expenses instead of deducting 1/3rd while assessing loss of dependency. The deceased was a bachelor and claimants happened to be brothers of the deceased who were dependents of the deceased. The legal representatives of the deceased would be at the most be entitled to get the amount towards loss of estate of the deceased. The respondent No.2-Karnavirsinh Mahavirsinh Chauhan is the nephew of the deceased and he was the adopted son of the deceased but Claims Tribunal has not accepted this version of the claimant and therefore, has not awarded compensation to respondent No.2. She also submitted that Claims Tribunal has wrongly relied upon the decision of this Court reported in 2005 (2) G.L.H. 85 incase of New India Assurance Company Ltd. Vs. Ashwin Vrajlal Rajgor. She submitted that this decision is not applicable because in absence of any Class I heir, the nephew of the deceased who comes within the purview of Class II heir, under Hindu Succession Act is entitled to get compensation. In present case, when representatives of Class I heir are already on record, the Tribunal ought not to have awarded any amount to respondent No.2, in view of deceased who happens to be Class II heir as per the Hindu Succession Act, 1956. The multiplier of 16 adopted by Tribunal is on higher side. The Tribunal ought not to have applied a multiplier of more than 11 considering that real claimants were brothers and sister of the deceased aged 53, 48, 46 and 44; except this no other submissions have been made before this Court by learned Advocate Ms. Megha Jani.
I have considered submissions made by learned Advocate Ms. Megha Jani and I have also perused the award passed by Claims Tribunal, Godhra. The accident occurred on 15.12.2001 when the deceased going on a bicycle on reaching near Village Chenpur and coming from Devgadh Baria, in a rash and negligent manner, opponent No.1 driver of Jeep No.GJ-17-C-4911 dashed with the bicycle and resulting in serious injury to Mahendrasinh Natwarsinh Chauhan. Ultimately during treatment after six days on 21.12.2001, Mahendrasinh Natwarsinh Chauhan expired because of serious injuries sustained in the accident. First Information Report was lodged against driver of jeep in Devgadh Baria Police Station No.249/01. Respondents No.1 and 2 remained absent. Therefore, ex-parte proceedings were initiated against them. Insurance Company filed a reply, Exhibit
21. Claimant has produced documents vide Exhibit 19 as referred in Paragraph 4 as under :-
1) Copy of medical bills of deceased- Mahendrasinh Natwarsinh Chauhan, Annexures 1 to 22 totalling to Rs.77,679.27.
2) Copy of First Information Report.
3) Copy of Panchnama of place of accident.
4) Copy of Inquest Panchnama of body of the deceased- Mahendrasinh Natwarsinh Chauhan.
5) Copy of Post Mortem note of deceased- Mahendrasinh Natwarsinh Chauhan.
6) Copy of Driving License of opponent No.1.
7) Copy of R.C. Book of vehicle involved in the accident.
8) Copy of Insurance Policy of vehicle involved in the accident.
9) Copy of chargesheet.
It is necessary to note that appellant's advocate, Ms. Jani has not challenged the question of negligence decided by Claims Tribunal, Godhra before this Court. Therefore, this Court is not examining question of negligence which has been rightly decided by Claims Tribunal. Therefore, issue no.1 has been decided by Claims Tribunal considering FIR-Exhibit 25 and evidence of claimant. The driver of jeep had not appeared before Claims Tribunal and had not explained the accident and has not filed any reply to claim petition. According to claimant, deceased was earning Rs.6,000/= from agricultural work and from STD PCO Booth, but no cogent evidence is produced by claimant. Therefore, considering date of accident as 15.12.2001 and having income from agricultural work as well as from STD PCO Booth and maintaining a family, Claims Tribunal has assessed Rs.3,000/= as being the income of deceased. Thereafter, future prospective income has been considered after deducting 1/3rd, Rs.3000/= amount comes to being a dependency and yearly, it comes to Rs.36,000/= and looking to the age of the deceased as 35 years, 16 multiplier has been applied and Rs.15,000/= has been awarded for loss of estate and Rs.80,000/= has been awarded for medical expenses and Rs.10,000/= for pain, shock and suffering and Rs.5,000/= for funeral expenses and transportation charges. Hence, the total amount comes to Rs.6,86,000/=.
A contention was raised by learned Advocate, Ms. Megha Jani that deceased was unmarried. Therefore, 1/3rd amount is to be considered as dependency and 2/3rd amount is to be deducted for personal expenses and relying upon the Apex Court's decision in case of Sarla Verma (supra), 50% amount is to be deducted from income.
I have considered the submissions made by learned Advocate Ms. Jani. Such submissions cannot be accepted because deceased was aged 35 years which means that deceased was of a marriageable age. Therefore, even in near future he must have acquired a family as per decision of Apex Court in case of Bijoy Kumar Dugar V. Bidyadhar Dutta & Ors. reported in AIR 2006 SC 1255. Relevant paragraphs are quoted as under :-
The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable compensation to the claimants.
In case of Bilkish V. United India Insurance Co. Ltd. reported in 2008 ACJ 1357, relevant paragraph is quoted as under :-
4.
After hearing learned counsel for the parties, we are of the opinion that the view taken by High Court and Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50 per cent was not correct. Therefore, we assess that he must be spending 1/3rd for personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs.30,000/= was earned by him per annum. The loss of dependency was 2/3rd, i.e., Rs.20,000. The multiplier of '11' applied for loss of dependency was also not correct and as per Schedule appended to the Motor Vehicles Act, 1988, it should be '12'. Applying the multiplier of 12 the total loss of dependency will be Rs.20,000 x 12 = Rs.2,40,000 and Rs.10,000 towards loss to estate and funeral expenses, the total compensation comes to Rs.2,50,000 and incumbent is entitled for interest at the rate of 9 per cent per annum from the date of the petition. The appeal is allowed within the aforesaid modification. If any amount has already been paid to claimant then that amount may be deducted from the total amount. Consequently, the appeal is allowed in part with no order as to costs.
Therefore, in view of aforesaid decisions, when the deceased was having a marriageable age and may have acquired a family in near passage of time, even 1/3rd amount is to be deducted being the personal expenses of such a deceased. Therefore, in my opinion, Claims Tribunal has rightly deducted 1/3rd amount as being the personal expenses. In recent decision of Apex Court in case of Kimlibhai reported in 2009 6 Supreme 106, wherein a carpenter who had died in accident having age of 40 years had not produced cogent evidence for proving income of deceased. The accident had occurred in the year 1997 even though Apex Court has assessed income of carpenter who died in accident at Rs.3,000/= per month and 17 multiplier has been applied considering age of deceased as 40 years. Therefore, in light of the recent decision of Apex Court looking to age of deceased- Mahendrasinh Natwarsinh Chauhan, 16 multiplier has been rightly applied by Claims Tribunal. Hence, Claims Tribunal has not committed any error which requires interference by this Court. The future prospective income of deceased is also rightly considered by Claims Tribunal in light of decision of Apex Court in case of General Manager, Kerala S.R.T.C. Vs. Susamma Thomas reported in AIR 1994 SC Page 1631 and in case of Smt. Sarla Dixit & Anr. Vs. Balwant Yadav & Anr.
reported in AIR 1996 SC Page 1274 and incase of Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. Vs. Ahmedabad Municipal Transport Service reported in 1998(2) GLH 670. Therefore, no error is committed by Claims Tribunal in considering future prospective income of deceased. Amount of medical expenses are based on medical bills collectively produced vide Exhibit 34 which are not disputed by appellant's Advocate before Claims Tribunal. Therefore, in my opinion, the amount passed in favour of the claimant by the Claims Tribunal is reasonable just and proper.
One contention has been raised by appellant-Insurance Company before Claims Tribunal that father of Mahendrasinh Natwarsinh Chauhan expired during pendency of claim petition. Therefore, present respondent No.1/1 to 1/4 and respondent No.2 minor are joined as legal heirs and representatives of deceased. The contention is that claimants now have become the brother and sister and adopted son being nephew. Therefore, they are not entitled to any amount of compensations because they are not dependents of deceased. The decision of Apex Court relied upon by claimants before Tribunal in the case of Gujarat State Road Transport Corporation V. Ramanbhai Prabhatbhai and Others in S.L.P. (Civil) No.2802/1987 TAC (1950-95) SC Page 198. In the aforesaid decision, Apex Court has examined question as to who is to be considered as legal representative of deceased. In the aforesaid decision, brother and sister of the deceased are considered to be legal representative and aforesaid decision is relied upon by learned Advocate, Mr. P.R. Desai appearing on behalf of claimants. A second decision of this Court reported in the case of New India Assurance Company Ltd. Vs. Ashwin Vrajlal Rajgor (supra) is also relied by the Advocate of the claimant and on that basis, contention raised by Advocate of Insurance Company has been rejected by Claims Tribunal. The Division Bench of this Court has examined this issue while considering provisions of Hindu Succession Act, 1956 as discussed in Paragraphs 4 and 5 which are quoted as under :-
4.
Question with regard to claimants being legal heirs / legal representatives of the deceased should not detain us for long keeping in view the broad and liberal nature of the legislation and the decision of this Court in Megjibhai Khimji Vira and another v. Chaturbhai Taljabhai and others (AIR 1977 Gujarat 195) wherein the Division Bench speaking through Ahmadi J. (as His Lordship then was) held that claims for compensation arising out of the use of a motor vehicle can be maintained by the brothers and nephews of the deceased who are legal representatives. This decision is approved by the Apex Court in Gujarat State Road Transport Corporation, Ahmedabad v Ramanbhai Prabhatbhai and another (AIR 1987 SC 1690). In paragraph 9, the Apex Court said :
Clauses
(b) and (c) of sub-sec.(1) of S.110-A of the Act provide that an application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorised by all or any of the legal representatives of the deceased. The proviso to sub-s. (1) of S.110_a provides that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. The expression 'legal representative' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative' as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolvs on the death of an individual. Clause (b) of sub-sec.(1) of S. 110A of the Act authorises all or any of the legal representatives of the deceased to make an application for compensation before the Claims Tribunal for the death of the deceased on account of a motor vehicle accident and Cl.(c) of that sub-section authorises any agent duly authorised by all or any of the legal representatives of the deceased to make it. The proviso to sub-s.(1) of S.110-A of the Act appears to be of some significance. It provides that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased. Section 110-A(1) of the Act thus expressly states that (i) an application for compensation may be made by the legal representative of the deceased or their agent and (ii) that such application shall be made on behalf of or for the benefit of all the legal representatives. Both the person or persons who can make an application for compensation and the person for whose benefit such application can be made are thus indicated in S.110-A of the Act. This section in a way is substitute to the extent indicated above for the provisions of S.1A of the Fatal Accidents Act, 1855 which provides that every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased. While the Fatal Accidents Act, 1855 provides that such suit shall be for the benefit of the wife, husband, parent and child of the deceased, S.110-A(1) of the Act says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from S.110-B of the Act that Claims Tribunal is authorised to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. This provisions takes the place of the third paragraph of S.1A of the Fatal Accidents Act, 1855 which provides that in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by S.110-A and S.110-B of the Act and to that extent the provisions of the Act do supersede the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicle accidents are concerned. These provisions are not merely procedural provisions. They substantially affect the rights of the parties. As the right of action created by the Fatal Accidents Act, 1855 was new in its species, new in its quality, new in its principles, in every way new the right given to the legal representatives under the Act to file an application for compensation for death due to a motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitation of an action under the Fatal Accidents Act, 1855.
New situations and new dangers require new strategies and new remedies.
In paragraph 11, the Apex Court further said :
We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by S.110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in S.110-B of the Act to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by S.110B of the Act amongst the legal representatives for whose benefit an application may be filed under S.110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval on the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai (AIR 1977 Guj 195) (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S.110-A of the Act if he is a legal representative of the deceased.
5.
In the Hindu Succession Act, 1956, brothers' son is class II heir. Therefore, the petition is maintainable, claimants being legal representatives/heirs of the deceased within the meaning of Section 166/163-A of the Act. Deceased was bachelor and left no other heir/representative in class I to represent him in his estate, except the claimants, according to learned counsel for the claimants.
In view of the observations made by Division Bench of this Court as referred above, the contention raised by learned Advocate Ms. Megha Jani cannot be accepted. Therefore, Claims Tribunal, Godhra has rightly examined and rightly decided the matter. Hence, Claims Tribunal has not committed any error which requires interference by this Court. The amount of compensation is also properly worked out which cannot be considered to be on higher side and in my opinion, a reasonable, just and proper compensation has been awarded. No interference is required by this Court. Therefore, there is no substance in First Appeal. Accordingly First Appeal is dismissed. Today First Appeal No.254/2010 is dismissed. Therefore, no order is required to be passed in Civil Application. Accordingly, Civil Application No.1545/2009 is disposed of.
(H.K. Rathod, J.) Caroline Top