Gujarat High Court
Oriental Insurance Co Ltd vs Heirs Of Decd.Chhaganbhai Chothabhai on 6 March, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2645 of 2003
With
R/FIRST APPEAL NO. 2646 of 2003
With
R/FIRST APPEAL NO. 565 of 2016
With
R/FIRST APPEAL NO. 566 of 2016
With
R/FIRST APPEAL NO. 567 of 2016
With
R/FIRST APPEAL NO. 568 of 2016
With
R/FIRST APPEAL NO. 569 of 2016
With
R/FIRST APPEAL NO. 570 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 or any order made thereunder ? ========================================================== ORIENTAL INSURANCE CO LTD.
Versus HEIRS OF DECD.CHHAGANBHAI CHOTHABHAI & ORS. ========================================================== Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1 for the Defendant(s) No. 1.1.2.1,1.1.2.2,1.1.2.3,3 MR P J YAGNIK(1004) for the Defendant(s) No. 1.1.1,1.1.10,1.1.11,1.1.2,1.1.3,1.1.4,1.1.5,1.1.6,1.1.7,1.1.8,1.1.9 Page 1 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined MR PALAK H THAKKAR(3455) for the Defendant(s) No. 6 RULE SERVED for the Defendant(s) No. 2,4,5 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 06/03/2024 COMMON CAV JUDGMENT
1. These appeals have arisen from a common judgment passed by Motor Accident Claims Tribunal (Main), Surendranagar on 27.12.2002 in M.A.C.P. Nos.127/1995 to 132/1995.
1.1 First Appeal No.2645 of 2003 and First Appeal No.2646 of 2003 are by the Insurance Company, while rest of the six appeals are from the side of the claimants.
2. The unfortunate incident occurred on 14.11.1994, where deceased Chhaganbhai Chothabhai was travelling with his wife Prabhaben Chhaganbhai and three minor children, Jagdish @ Bhavesh Chhaganbhai, Labhuben Chhaganbhai and Amit @ Lalo Chhaganbhai. They were returning in Page 2 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined Tempo, bearing Registration No.GJ-1-V-3079 from Gondal to Ahmedabad, when they reach near Patiya of village Kotha Talavadi, on Rajkot - Limbdi National Highway No.8A, a Luxury Bus, bearing registration No.GJ-3 T-8470 dashed the tempo, as it was in excessive speed and was trying to overtake a truck going ahead of it. As a result of the accident, all of them sustained serious injuries and died on the spot. The incident saw the death of all the family members. 2.1 The claim petition was filed by the father of deceased Chhaganbhai Chothabhai along with mother and brothers and sisters of deceased Chhaganbhai Chothabhai. During the pendency of the claim petition, below Exh.56, by an order dated 02.08.2002, the name of mother, brothers and sisters of the deceased were deleted by the Tribunal. All the six claim petitions were pursued by Chothabhai Punjabhai Kukadiya, who at the time of petitions was aged about 65 years. Page 3 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 2.2 The judgment was declared on 27.12.2002. Against that judgment, Chothabhai Punjabhai Kukadiya filed his challenge by filing First Appeal Nos.565/2016 to 570/2016. During the pendency of filing, he died. Thereafter, by order of this Court dated 15.12.2003 in Civil Application No.8384 of 2003, amendment was carried out and the mother, brothers and sisters of deceased Chhaganbhai Chothabhai came on record as heirs and legal representatives of deceased Chothabhai Punjabhai Kukadiya, in all the appeals.
2.3 The main contention of the insurance company is that by an order below Exh.56, when mother, brothers and sisters were deleted by an order of the Tribunal, Advocate Ms.Dimple A.Thaker submitted that they cannot now continue with appeals, since mother though alive did not pursue with the claim petition, and even the Page 4 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined enhancement appeals which were filed, was lying in office objection, thereafter on the death of the father, all heirs cannot now be considered as dependents of the deceased son, hence, it is submitted that nephews and niece of the brothers and sisters, and even the brothers and sisters cannot be considered as heirs.
3. Learned advocate Mr. P.J. Yagnik for the appellants of First Appeal Nos.565 to 570 of 2016 and respondent in First Appeal Nos.2645 and 2646 of 2003, submitted that the issue of dependency would now bear no significance in view of the judgment of Apex court as well as this Court. Mr. Yagnik submitted that in a joint family all the persons contribute for the joint development of the family and each are dependent on the income of the others, hence, the issue of dependency, which has been raised, should have no countenance.
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NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 3.1 Referring to the judgment of Lata Wadhwa and Ors. Vs. State of Bihar and Ors., reported in (2001) 1 Supreme Court Cases 197, Mr. Yagnik submitted that the compensation granted for the minors are very less and would not even justify their life and the loss to the family owing to their death. For the compensation on the death of the son and daughter-in-law, Mr. Yagnik stated that, the compensation requires enhancement, since assessment has not been done in accordance to the evidence on record, where the deceased Chhaganbhai's income was proved by the oral evidence of Babubhai Bhagwanbhai Patel, who was the time keeper in the Atul Enterprise, and at Exh.74, Babubhai had specifically laid his evidence that deceased Chhaganbhai was working in Atul Enterprise as a permanent worker from 1983. The muster role of the Atul Enterprise was produced at Exh.75, which shows that he had joined service on 10.06.1983. The copy of the Page 6 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined salary sheet was produced, which was from the period 01.04.1994 to 31.03.1995, at Exh.76, to prove that the deceased was earning Rs.1,440/- per month and the pay sheets of the deceased for the month of August, September and November 1994 were proved on record.
3.2 Advocate Mr. Yagnik submitted that the income of the deceased from transport business was proved by the father of the deceased through his evidence and Exh.82 was produced on record, which was issued by the partner of Atul Enterprise to certify that deceased Chhaganbhai Chothabhai owned Tempo No.GJ-1-V-3079, and he was into local transportation work in connection with the Atul Enterprise and its associates since last one year, and the transportation charges for approximately 4,000/- to 5,000/- per month. Mr. Yagnik submitted that in spite of evidence on record, the Tribunal has failed to consider the same and has assessed only Rs.5,220/- per month. Page 7 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 3.3 While for deceased Prabhaben Chhaganbhai, Advocate Mr. Yagnik submitted that documentary proofs were produced on record by way of photographs to show that deceased was doing the work of assembling sprint at her house and was earning Rs.2,000/- per month. The witness Babubhai had corroborated the fact, but the Tribunal has failed to believe him and has considered her income as Rs.1,200/- per month in the status of being household lady, which Mr. Yagnik stated has been assessed on lower side and not in accordance to the evidence on record. 3.3.1 Advocate Mr. Yagnik further submitted that the Misc. Civil Application (For Restoration) No.674 of 2011 with Misc. Civil Application (Stamp) No.1705 of 2006 were moved and reasons for non-removal of the objections were noted, and the Division Bench considering the reasons had set aside all the technicalities Page 8 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined and allowed the application for restoration of the First Appeal and granted time for removal of office objection. The office note dated 02.04.2012 were taken into consideration, for which Mr. Yajnik submits that it was not the fault of the claimants, as the papers of the First Appeals were destroyed and, therefore, sets of First Appeals papers were filed and only under the order of reconstruction, the matter came to be restored. Hence, there would be no fault of the appellants to consider for any denial of the interest.
3.4 Advocate Mr. Yagnik has relied upon the following judgments in support of his arguments:
(i) Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai prabhatbhai And Anr., reported in (1987) 3 SCC 234;
(ii) Surpal Singh Ladhubha Gohil Vs. Page 9 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined Raliyatbahen Mohanbhai Savlia And Ors., reported in 2009 (2) G.L.H. 217;
(iii) New India Assurance Co. Ltd. Vs. Ashwin Vrajlal Rajgor, Newphew of Late Kantilal D.Rajgor, reported in 2005 (2) G.L.H. 85;
(iv) Megjibhai Khimji Vira And Anr. Vs. Chaturbhai Taliabhai And Ors., reported in 1978 G.L.R. 216;
(v) Meena Devi Vs. Nanu Chand Mahto Alias Nemchand Mahto And Others, reported in (2023) 1 SCC 204;
(vi) Mohd. Sabeer @ Shabir Hussain Vs. Regional manager, U.P. State Road Transport Corporation, reported in 2022 LiveLaw (SC) 1017;
(vii) Smt. Meena Pawaia & Ors. Vs. Ashraf Ali & Ors., rendered by the Apex Court in Civil Appeal No.6724 of 2021;Page 10 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
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(viii) National Insurance Company Ltd. Vs. Birender and Ors., rendered by Apex Court in Civil Appeal No.242-243 of 2020;
(ix) Magma General Insurance Co. Ltd. Vs. Nanu Ram and Ors., reported in 2018 ACJ 2782;
(x) Nagappa Vs. Gurudayal Singh and Ors., reported in 2003 ACJ 12;
(xi) Rajeshbhai Muljibhai Vasava Vs. Keharsing Bansi Bajaniya, decided by this Court in First Appeal No.5167 of 2019 on 31.01.2023;
(xii) Sonalben Alias Charmiben Hirenbhai Jivani Vs. Naranbhai Chananbhai Babariya, decided by this Court on 09.09.2022 in First Appeal No.4516 of 2018;
(xiii) Bajaj Allianz General Insurance Co. Ltd. Pune, Vs. Thakore Jayantibhai Piraji, decided by Division Bench of this Court on 09.08.2021 in First Appeal No.1792 of 2020 with First Appeal Page 11 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined No.2222 of 2020;
(xiv) Dudhiben Chothabhai Kukadia Vs. Pathan Azizkhan Habibullakhand & 5, rendered by Division Bench of this Court in Misc. Civil Application- For Restoration No.674 of 2011 with Misc. Civil Application (Stamp) No.1705 of 2006 on 03.04.2012;
4. Learned advocate Ms. Dimple Thaker for the Insurance Company submitted that M.A.C.P. No.127 of 1995 impugned in First Appeal No.2645 of 2003, was filed by the father of the deceased claiming Rs.12,60,000/- for death of his son Chagganbhai Kukadiya; however, the Tribunal has awarded total compensation as Rs.6,39,400/-. Ms. Thaker stated that deceased was serving at Atul Enterprise as employee and was only earning Rs.1,440/- per month, and, therefore tribunal erred in assessing income as Rs.5,000/- based on the probable prospects of earning, which was Page 12 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined considered as Rs.5,000/-, based on assumptions and presumptions, thus, submitted that assessment of income as Rs.6,440/- by adding income earned i.e. Rs.1,440/-, by the Tribunal is without evidence and is illegal and therefore required to be interfered.
4.1 Advocate Ms. Thaker stated that income ought to have been considered at Rs.1,440/-, wherein even if the prospective income is added as 40%, it would come to Rs.576/-, which would come to Rs.2,016/-, whereas Tribunal considered it as Rs.3,220/-, which is erroneous. 4.2 Advocate Ms. Thaker stated that witness, Babubhai, who deposed at Exh.74 was the time keeper of Atul Enterprise, who admitted in the cross examination that he had no authority to give deposition, as company had not authorised him to depose, and admitted that he was relative of the deceased.
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NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 4.3 Advocate Ms. Thaker submitted that the Tribunal erred in considering the income from the tempo bearing Registration No.GJ-1-V-3079, from the transport business. Ms. Thaker stated that it is proved that deceased was full time employee, therefore, it was not possible for the deceased to drive tempo for transport business, and even if, it is assumed that tempo would have been engaged in the transport business, and deceased would have engaged a driver, which also proves that even after the death of deceased there would be income generated from the said business; thus, stated that no loss can be assessed, as erroneously assumed by the Tribunal. 4.4 Advocate Ms. Thaker further submitted that no officer was examined to prove the income certificate, and no payment slip was produced on record by the Atul Enterprise to prove that such huge amount was paid in 1993-94 to the deceased; no books of accounts showing such payment was Page 14 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined produced. Ms. Thaker stated that the multiplier was considered on the higher side, and after the death of the entire family of the deceased, the father has been the claimant in the claim petitions, who was aged about 72 years and therefore the Tribunal ought to have applied multiplier of 5.
4.5 On the aspect of negligence, Advocate Ms. Thaker stated that Tribunal erred in holding the driver of the bus 80% negligent without appreciating F.I.R. and panchnama produced on record, which clearly proves the negligency of the tempo driver. Ms. Thaker submitted that there was no proof that the father was dependent on the deceased, as the father was likely to have his own income, and mother alone will be considered as a dependent. Ms. Thaker submitted that after the death of the father, other sons have been joined as legal representatives on record, which proves that father had seven other sons apart Page 15 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined from deceased, therefore it cannot be assumed that father was dependent on the deceased. 4.6 Ms. Dimple Thaker, learned advocate further submitted that the claim petition was filed by father, mother and brothers and sisters of the deceased for claiming compensation, and by order dated 02.08.2002, during the pendency of the claim petition at Exh.56, mother, brothers and sisters of the deceased were deleted by the order of the Tribunal. She states that mother herself got deleted from the claim petition along with the brothers and sisters, and the appeal was filed thereafter by the father for enhancement of the compensation. She states that the mother being alive did not pursue the claim or even enhancement and during her lifetime never removed the office objection and did not ensure that the appeal is listed, therefore, it cannot be considered that the cause continued, even when the mother being alive, had never pursued the Page 16 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined claim petition, as dependent, nor preferred the appeal, and even after joined as legal heir bothered to remove the objection and get the matter heard.
4.7 Advocate Ms. Thaker submitted that the claimants are now nephews and niece of the deceased and they are not at all dependent for any amount of the deceased, and the principle of the insurance is to compensate the family, and in light of unfortunate event dependents are compensated, but there can be no windfall gain or profit from such loss. Distant family members, who are no where dependent, cannot be allowed to claim such compensation and make profit and make unjust enrichment out of such loss. 4.8 Ms. Dimple Thaker contended that no interest ought to have been paid to the claimants from 2003 till 2016, as appeal was dismissed for default for non-removal of office objection, and Page 17 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined not restored for 13 years by the legal representatives and dependents, and if any of the claimants including mother were dependent, they would have actively removed the office objection, and would have got the appeal restored for hearing; thus, stated that this conduct itself shows that they were not dependents on the income and therefore the claim for enhancement is nothing, but unjust enrichment in the name of dependency.
4.9 Advocate Ms. Thaker further submitted that M.A.C.P. No.128 of 1995, impugned in First Appeal No.2646 of 2003 had been filed claiming Rs.3,00,000/-, wherein the Tribunal awarded Rs.1,57,000/-. Ms. Thaker submitted contending that without any proof of raw materials, without any income proof of deceased making beads at home, and without any proof of payment of Rs.2,000/- to deceased Prabhaben by Atul Enterprise, the Tribunal has erred in considering Page 18 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined income as Rs.1,200/-, instead the Tribunal ought to have considered minimum wages of 1993 i.e. Rs.900/-.
4.10. Advocate Ms. Thaker submitted that Tribunal erred in holding the driver of the bus 80% negligent without appreciating FIR and panchnama produced on record, which clearly proves that the tempo driver was completely negligent.
4.11 Ms. Thaker stated that initially the claim petition was filed by the father-in-law claiming to be dependent on deceased Prabhaben, who was daughter-in-law of the original claimant, however, stated that original claimant, father- in-law, cannot be considered to be the dependent on the deceased daughter-in-law until proven by way of documentary evidence, otherwise too, the legal heirs brought on record, who are nephews and niece of the deceased, cannot be awarded any Page 19 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined amount towards dependency benefits now, and no enhancement can be granted to them, as they are not at all dependents for any amount on the deceased.
4.12 Ms. Thaker further submitted that no interest to be awarded for the period from 2003 till 2016, as no party can take the advantage of their own negligence and breach, and if such interest is granted, it will encourage parties, to gain undue compensation with interest by deliberately not removing objection, and then making a windfall profit in the name of compensation, therefore, stated that no enhancement be granted to any of the claimants. 4.13 MACP Nos.129, 130, 131 of 1995 were filed seeking compensation for death of minors Jagdish, Labhben and Amit, impugned in First Appeal Nos.567, 568 and 569 of 2016, whereas, First Appeal No.570 of 2016 in context of MACP Page 20 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined No.132 of 1995 was filed for seeking enhancement on account of damage to the tempo. 4.14 Advocate Ms. Thaker submitted the Tribunal has granted compensation for all the minors as Rs.93,000/- each in the claim petitions. Ms. Thaker stated that grandfather cannot be considered to be dependent on the income of the grandchildren and, therefore, further amount may not be granted, when the original beneficiaries are the cousins of the deceased. Advocate Ms. Thaker stated that the appeals were limited to Rs.2,00,000/-, hence, the amount above Rs.2,00,000/- cannot be awarded, and the principle of just compensation cannot be applied in the case on hand, as the cousins, uncles and aunts have no right to seek any enhancement.
5. Learned advocate Mr. Palak Thakkar for respondent no.6 insurance company submitted that Page 21 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined the amount, which has been granted to deceased was required to be assessed as per the evidence on record. Mr. Thakkar further submitted that the appellants have failed to establish that they are dependents of the deceased and the mother was not on record to now claim any compensation.
6. Having heard the Advocates on record, it becomes clear that, the primary ground raised by the insurance company is about non- maintainability of the First Appeals filed by the mother, brothers, and sisters of the deceased after the death of the father, who was pursuing the appeal. The raised contention is about the non-dependency.
6.1 In case of Sonalben Alias Charmiben Hirenbhai Jivani Vs. Naranbhai Chananbhai Babriya, this Court on 09.09.2022 in First Appeal No.4516 of 2018 observed as under: Page 22 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined "10. In National Insurance Company Ltd. and others vs. Birender and others, AIR 2020 SC 434, in context of dependency of the major son, it has been observed that the legal representatives of the deceased would be entitled to receive compensation under the conventional heads. It was observed in paragraphs 12, 13, 14 and 15 as under:
"12. We have heard Mr. Amit Kumar Singh, learned counsel for the insurance company (appellant) and Ms. Abha R. Sharma, learned counsel for the respondent Nos. 1 and 2. The principal issues which arise for our consideration are as follows :
(i) Whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation under the Motor Vehicles Act, 1988 (for short, 'the Act')?
(ii) Whether such legal
representatives are entitled only
for compensation under the
conventional heads?
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(iii) Whether the amount receivable by the legal representatives of the deceased under the 2006 Rules is required to be deducted as a whole or only portion thereof?
13. Reverting to the first issue - that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub-
section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus:
"Section 166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by Page 24 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided 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.
(2) Every application under sub-
section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for Page 25 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) ******* (4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act."
14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Page 26 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined Court observed thus:
"9. In terms of clause (c) of sub- section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid.
The latter part relates to the entitlement of compensation by a person who claims for the same.Page 27 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
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11. According to Section 2(11) CPC, "legal representative" means 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. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in Page 28 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the Page 29 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only..."
11. Observing the principles as laid down in the above referred judgments and following the case of Pranay Sethi (supra), this Court concludes that both the parents are dependents of the Page 30 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined deceased son and are entitled to apply for compensation. Thus, the observations made by the learned Tribunal become erroneous. Both the parents are entitled for the compensation amount under the head of dependency loss."
7. The right of all the claimants, would get crystallize on the date of filing of the application. Hence, all the children and the widow mother would have their right to continue the claim petition, which arose on the cause of death of the father who pursued the claim petition on their behalf. On the date of filing of claim petition, the father, mother and the brothers, sisters had right to file the claim petition, and, this aspect gets clarified by observations of Hon'ble Supreme Court in the case of N. Jayasree And Ors. v. Cholamandalam MS General Insurance Co. Ltd., reported in (2022) 14 SCC 712, observing that the term the term 'legal representative' should be given a wider Page 31 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined interpretation for the purpose of the M.V. Act and it should not be confined only to mean the spouse, parents and children of the deceased. The M.V. Act being a benevolent legislation enacted for object of providing monetary relief to the victims and family. It has been observed by the Apex Court that only liberal and wider interpretation would serve the real purpose undermining the enactment fulfills its legislative intent. The following observation of the Apex Court reads as under:
"16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider Page 32 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.
18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression 'legal representative' for the purpose of claiming compensation.
In Gujarat State Road Transport
Corporation, Ahmedabad vs.
Ramanbhai Prabhatbhai and Anr. 3
this Court while considering the
entitlement of the brother of a
deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the Page 33 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined MV Act, held as under:
"13. 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 Sections 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 Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as Page 34 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 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 of the decision in Megjibhai Khimji Vira v.
Chaturbhai Taljabhagujri [AIR
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1977 Guj 195] and hold that
the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased."
19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors. 5 it was held that:
"7. ...12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v.
Nalini Bai Naique [1989 Supp.
(2) SCC 275] the definition
contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only.
Instead, it stipulates that a
person who may or may not be
legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators Page 36 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
21. This Court after examining various provisions of the MV Act held that the appellant-society was the legal representative of the deceased 'brother'. While allowing the claim petition it was observed as under:
"17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, Page 37 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning?
For answering this issue, the
Tribunal relied not only upon
judgments of American and
English Courts but also upon
Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary8 , which held that the term "legal representative" is wide enough Page 38 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined to include even "intermeddlers"
with the estate of a deceased.
The Tribunal also referred to
some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
22. Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant no.4 herein may not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, we have no Page 39 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined hesitation to hold that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition.
7.1 N. Jayasree And Ors. (supra), is about the appellant no.4 being the mother-in-law of the deceased and she was also considered dependent of deceased.
8. In context of the observation in N. Jayasree And Ors. (supra), in Indian society, the family consists of brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family. The concept of joint family, as recognised through Hindu successions Act, 1956, would clarify that the family consists of brothers, sisters would become coparcener, and each of them would be dependent on the income of others for running the family. Hence, the argument of learned advocates of insurance Page 40 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined company would not have a strong footing, as the brothers and sisters can also be considered as legal representatives and as dependents of the deceased.
9. In Budh Singh Vs. Vijender Singh & Ors., reported in 2013 ACJ 19, the Delhi High Court in paragraph no.12, observed as under:
12. The Supreme Court in Smt. Manjuri Bera Vs. The Oriental Insurance Company Ltd. And Another, 2007 2 ACC 365 has held as under:
"9. According to Section 2(11) of CPC, 'legal representative' means 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.
Almost in similar terms is the
definition of legal representative
under the Arbitration and
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Concillation Act, 1996, i.e. under Section 2(1)(g)."
10. In context of the above referred judgments specific mention is required to be made of the provisions of section 166 of the M.V. Act, 1988, wherein it is provided that application for compensation arising out of an accident in nature specified in sub-section (1) of section 165 may be made by all or any of the legal representatives of the deceased, as provided in clause (c). The proviso which is added clarifies that when all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf or for benefit of all the legal representatives of the deceased, and the legal representatives, who have not so joined, shall be impleaded as respondent to the application.
11. In the present matters of the MACPs, the father, mother, brothers and sisters of the Page 42 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined deceased joined in the petition as well as in- laws of daughter-in-law and grand parents and uncle, aunt of minors, and later on by an order dated 02.08.2002, below Exh.56, the father as sole applicant continued with the proceeding. Deletion of the name of mother, brothers and sisters of the deceased could not be mean to understand that they had waived their rights, since section 166 of the M.V. Act permits anyone to represent the matter on behalf of all other legal representatives, hence, deletion of the name cannot be construed as waiving their rights.
12. In M.A.C.P. 127 of 1995, which was for deceased Chhaganbhai Chothabhai, the Tribunal had granted Rs.6,39,400/-. M.A.C.P. No.128 of 1995 was for death of wife of deceased Chhaganbhai Chothabhai i.e. Prabhaben Chhaganbhai, the Tribunal granted Rs.1,57,000/-; while M.A.C.P. Nos.129, 130 and 131 of 1995 were for minor children aged about 13, 11 and 10 years Page 43 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined respectively, wherein the Tribunal has granted Rs.93,000/-.
12.1 M.A.C.P. No.132 of 1995 was for the damages of tempo owned by deceased Chhaganbhai Chothabhai, and the Tribunal was pleased to grant Rs.26,000/-.
13. This Court is of an opinion that in M.A.C.P. Nos.129, 130 and 131 of 1995, the amount granted by the Tribunal on the death of minors is on a very lower side.
13.1 The case of Kishan Gopal And Another Vs. Lala And Others, reported in 2013 ACJ 2594, is required to be considered. In the said case the Hon'ble Supreme Court by referring the facts of the case of minor aged about 10 years, had considered the notional income as Rs.30,000/- by applying multiplier of 15, considered Rs.4,50,000/- as dependency loss and Rs.50,000/- Page 44 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined has been considered under the conventional heads for loss of love and affection, funeral expense and last rites, as was held in General Manager, Kerla State Road Transport Corporation Vs. Susamma Thomas, reported in 1994 ACJ 1 (SC), which is referred to in Lata Wadhwa and Ors. (supra).
13.2 In Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto, reported in 2022 ACJ 2478, the child died in a road accident was aged about 12 years. The Hon'ble Apex Court after applying the ratio laid down in case of Kurvan Ansari @ Kurvan Ali & Another Vs. Shyam Kishore Murmu And Another, reported in (2022) 1 SCC 317, and the principle laid down in Kishan Gopal And Another Vs. Lala And Others (supra), accepting the notional earning of Rs.30,000/- including the future prospect and by applying the multiplier 15, in view of the decision in Sarla Verma and Others vs. Delhi Transport Corporation and Page 45 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined Another, reported in AIR 2009 SC 3104, the loss of dependency was assessed as Rs.4,50,000/-, and further Rs.50,000/- was added in conventional head, and, thus total compensation of Rs.5,00,000/- was granted.
13.3 This Court considers that the present matters in which the age of deceased minors were 13, 11 and 10 years respectively at the time of accident, should be placed at the same pedestal, as has been observed in case of Kishan Gopal And Another Vs. Lala And Others (supra) and Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto (supra). The notional earning of the child including the future prospect is required to be considered as Rs.30,000/- and by applying multiplier of 15 as laid down in Sarla Verma and Others vs. Delhi Transport Corporation and Another (supra), the loss of dependency is required to be assessed as Rs.4,50,000/-, and Rs.50,000/- is required to be granted under Page 46 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined conventional head, thus this Court considers that Rs.5,00,000/- for the death of each minors would be an equitable, just and reasonable compensation.
13.4 The Tribunal has granted Rs.93,000/- in each matters of MACP Nos.129, 130, 131 of 1995 to death of minors as total compensation. The additional compensation of Rs.4,07,000/- for each of the minors at the interest rate of 7.5% is ordered to be deposited within 8 weeks from the date of receipt of certified copy of this order. 13.5 M.A.C.P. No.128 of 1995, impugned in First Appeal No.2646 of 2003, was filed in connection with the death of daughter-in-law, Prabhaben Chhaganbhai. The earnings of deceased Prabhaben Chhaganbhai was sought to be proved by witness Babubhai Bhagwanbhai, who examined himself as a time keeper of Atul Enterprise, and it was the case of the claimant that deceased Page 47 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined Prabhaben Chhaganbhai was assembling sprint at home and was earning Rs.2,000/- per month. The Tribunal has observed that witness Babubhai Bhagwanbhai has not produced any documentary proof to show that raw materials were given to Prabhaben Chhaganbhai for assembling the sprint. No statement was produced of Atul Enterprises to show that they were making the payment of Rs.2,000/- to deceased for her assembling work at her residence. A photograph, Exh.67, was produced on record, but the Tribunal has not believed the same observing that it would be difficult to presume from the photograph that deceased Prabhaben Chhaganbhai was doing assembling work of sprint at her home. The learned Tribunal, thus, considered her as a household lady and in that circumstances granted the amount of Rs.1,200/- per month.
13.6 The said judgment has been challenged by the insurance company in First Appeal No.2646 of Page 48 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 2003, on the ground that the Tribunal has erred in considering the income of the deceased as Rs.1,200/- per month and also erred in assessing the monthly dependency loss.
13.7 The earning of deceased Prabhaben had not been proved by any documentary evidence, having examined the evidence of Babubhai Bhagwanbhai, who failed to prove the income of deceased. The Tribunal has rightly considered her as a housewife.
13.8 The Apex Court recently in case of Arvind Kumar Pandey & Ors. Vs. Girish Pandey & Anr., rendered in Civil Appeal No.2512 of 2024 arising out of SLP(C) No.20918 of 2022, held that the deemed income of the homemaker cannot be less than the income of a daily wager under the Minimum Wages Act. The facts of the case were that Smt. Sushma Pandey (Deceased) died in a car accident in the year 2006, when she was Page 49 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined travelling with the respondents, who are her close relatives. Subsequently, matter was filed before the Motor Accident Claims Tribunal by the Husband and Children of the Deceased. The Tribunal had dismissed the petition citing the vehicle, which met with the accident was not insured. This order was challenged by the Appellants in the High Court, which remanded the matter back to the Tribunal. The Tribunal awarded a sum of Rs. 2,50,000/-. Claiming that the compensation awarded was too small, the appellants preferred Appeal in the High Court, which dismissed it. Therefore, the Appellants approached Apex Court.
13.9 The apex Court held in the judgment that, even assuming that the deceased was unemployed, her direct and indirect income cannot be less than the wages admissible to a daily wager under the Minimum Wages Act; further observed that the income of homemakers is Page 50 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined tangible as a source of livelihood for the family, and the activities performed by a homemaker, if counted one by one, there will hardly be any doubt that the contribution of a homemaker is of a high order and invaluable, and is difficult to assess such a contribution in monetary terms, and accordingly awarded the compensation of Rs. 6,00,000/- to be paid to the appellants.
13.10 Paragraph nos.7, 8 and 9 of the judgment of Arvind Kumar Pandey & Ors. (supra) read as under:
"7. Assuming that the deceased was not employed, it cannot be disputed that she was a homemaker. Her direct and indirect monthly income, in no circumstances, could be less than the wages admissible to a daily wager in the State of Uttarakhand under the Minimum Wages Act.Page 51 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
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8. It goes without saying that the role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family. The activities performed by a homemaker, if counted one by one, there will hardly be any doubt that the contribution of a homemaker is of a high order and invaluable. In fact, it is difficult to assess such a contribution in monetary terms.
9. Taking into consideration all the attending circumstances, it appears to us that the monthly income of the deceased, at the relevant time, could not be less than Rs.4,000/- p.m. or so. However, instead of calculating the compensation under different heads, and also keeping in mind the fact that the appellants and the respondents are closely related, and the delinquent vehicle was not insured, we deem it appropriate to allow this appeal in part to the extent that the appellants are Page 52 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined granted a lump sum compensation of Rs.6,00,000/- (Rupees six lakhs). Since the respondents have already paid the amount of Rs.2,50,000/- to the appellants, the balance amount of Rs.3,50,000/- shall be paid by them within six weeks, failing which they shall be liable to pay interest as awarded by the Tribunal."
14. In accordance to the observations made in the judgment of Arvind Kumar Pandey & Ors. (supra), when the earnings of the deceased lady could not be proved by any documentary evidence, the fact that she was wife and mother of children and being a homemaker, her income could be considered on the basis of the minimum wages schedule. The date of accident is 14.11.1994, and on the basis of minimum wages schedule of the State, her income would be considered as Rs.1,000/- and at the time of accident, she was 38 years, hence, prospective rise in income would be considered as 40%.
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Actual Income 1,000/-
Prospective 1,400/- [1,000 + 4,00 (40% rise)] Income 1/4th 1,400 / 4 = 350/- Deduction Yearly loss 12,600/- [1,400-350 = 1,050 x 12] 14.2 The multiplier applied would be 15; hence, the dependency loss would come to Rs.1,89,000/- (12,600 x 15). Thus, accordingly
the claimants would be entitled to Rs.1,89,000/-
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1,57,000) as enhanced compensation at the interest rate of 7.5%.
15. In MACP No.127 of 1995 for deceased Chhaganbhai Chothabhai, the Tribunal has granted Rs.6,39,400/-. The evidence was laid to the effect that the deceased was serving in Atul Enterprise and the time keeper of Atul Enterprise, Babubhai Bhagwanbhai Patel gave his evidence at Exh.74 to state that deceased was permanent worker from 1983. The photo copy of the salary sheet for the period from 01.04.1994 to 31.03.1995 at Exh.76 shows the continuity of the job of deceased, while salary sheet of the month of August, September and November 1994 were produced on record and accordingly the salary of Rs.1,440/- of deceased was proved. Page 55 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024
NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 15.1 A further contention was also raised that the deceased had given his Tempo No.GJ-1-V- 3079 for local transportation in Atul Enterprise and in their associates companies for the last one year and the approximate transportation charges for a month as per certificate issued by partner of Atul Enterprise was Rs.4,000/- to 5,000/- per month. The Tribunal has believed the copies of vouchers issued by Tina Manufacturing company, worth Rs.1,245/- and 1,205/-; vouchers issued by Gignesh industries, Ahmedabad worth Rs.1,395/- and 1,125/-, and vouchers issued by Atul Enterprises at Rs.1,600/- and Rs.985/- at Exh.79. The Tribunal by referring to the vouchers came to the conclusion that the vehicle was used for the purpose of transportation of the goods and the Tempo of the deceased was used by Atul Enterprises and its associates companies, and according to the evidence of Babubhai Bhagwanbhai Patel, approximately Rs.4,000/- to 5,000/- per Page 56 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined month was paid to the deceased as transportation charges.
15.2 The Tribunal, at the same time, had observed that to prove this fact, witness Babubhai has not adduced any document of statement to prove that every month such payment was made towards transportation charges by Atul Enterprises and its associates companies. The Tribunal, thus, concluded that the deceased would have been earning Rs.4,000/- per month from the business of transportation and after deducting petrol charges and other miscellaneous charges and driver salary, had come to the conclusion that his earnings must be Rs.2,000/- per month from the transportation business, hence, average salary of deceased was assessed as Rs.3,220/- per month and Rs.2,000/- per month from transportation business, and in total had come to the conclusion of deceased earning as Rs.5,220/- per month.
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NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined 15.3 This assessment, after considering the average of the income, would not be proper, where specific evidence by way of pay slip was on record to show that the deceased was earning Rs.1,440/-. Further the transport business earnings could not be specifically proved; however, the evidence were produced to fortify that the vehicle was given by the deceased for transportation to Atul Enterprise and its associates. The said vehicle has been damaged, for which a claim petition as MACP No.132 of 1995 was filed. The Tribunal has granted Rs.26,000/-, and against that, the First Appeal No.570 of 2016 has been moved. The records shows that the vehicle was repaired.
15.4 The earning would have continued from transportation business by other family members, as the vehicle was repaired and in absence of a specific evidence, this Court would consider that Page 58 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined loss of managerial work of deceased in the transportation business is to be considered, and monthly loss of Rs.1,000/- could be assumed, hence, would consider the total income of Rs.1,440 + 1,000, which would be Rs.2,440/- per month.
15.5 The deceased was 34 years at the time of accident, hence, on the basis of the judgment of Pranay Sethi (supra), he would be entitled for 40% rise in prospective income. The dependents were four in number, thus, the deduction towards personal expenses would be 1/4th on the monthly income of Rs.2,440/-; thus the yearly loss would come as under:
Actual Income 2,440/-
Prospective 3,416/- [2,440 + 967 (40% rise)] Income 1/4th 3,416 / 4 = 854/- Deduction Yearly loss 30,744/- [3,416-854 = 2,562 x 12] 15.6 The multiplier applied would be 16; Page 59 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined
hence, the future dependency loss would come to Rs.4,91,904/- (30,744 x 16). Thus, accordingly the claimants would be entitled to Rs.4,91,904/-
as dependency loss. The Tribunal has assessed 20% negligence on the part of the driver of tempo, hence, deducting Rs.98,380/- (20% of 4,91,904), the compensation amount would come to Rs.3,93,524/-.
15.7 The Tribunal has awarded total compensation as Rs.6,39,400/-. So, Rs.2,45,876/-
(6,39,400 - 3,93,524) is the excess amount, which the insurance company is entitled to recover from the claimants.
16. In claim petition being MACP No.132 of 1995, impugned in First Appeal No.570 of 2016, the Tribunal has granted Rs.26,000/-, for the vehicle Tempo No.GJ-1-V-3079, the Tribunal has relied upon the evidence of the claimant, and the R.C. Book of the tempo, shows the ownership of Page 60 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined the deceased - Chhaganbhai Chothabhai of 1992 models. The bills for repairing work was produced at Mark 48/5, 48/6 and 48/7, which shows the amount of Rs.25,500/-. No surveyor report was produced to support the claim, nor any expert was examined for the purpose of assessment of damage. The photographs of the damaged tempo was placed on record at Exh.67, which the Tribunal on consideration found that it was badly damaged due to the vehicular accident. The claim of the damage was to the tune of Rs.1,00,000/-. Considering the vehicle with model of 1992 and relying upon the panchnama of the panchas, Exh.60, where the damage caused to the Tempo was assessed as Rs.40,000/-, and considering the depreciation, the Tribunal granted the amount of Rs.26,000/-, subject to deducting 20% negligence on the part of the Tempo driver. Hence, the amount assessed by the Tribunal is just and proper.
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17. Learned advocate Ms. Thaker had raised the issue of interest payable stating that the appeals of claimants were dismissed for default because of their fault, hence, had urged to deduct the said period. This contention cannot be entertained, since reasoned order was passed while restoring the appeals, where in the order of restoration, no restriction had been laid down, finding any fault of concerned appellants.
18. In view of the above, First Appeal Nos.2645 of 2003 filed by the insurance company against the judgment and award passed in MACP No.127 of 1995 is partly allowed. The Insurance company is entitled to receive excess amount of Rs.2,45,876/- from the claimants with interest and proportionate costs.
18.1 To the reasons given hereinabove, First Appeal Nos.2646 of 2003 filed by the insurance company against the judgment and award passed in Page 62 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024 NEUTRAL CITATION C/FA/2645/2003 CAV JUDGMENT DATED: 06/03/2024 undefined MACP No.128 of 1995 is rejected.
18.2 First Appeal No.565 of 2016 is rejected and First Appeal No.566 of 2016 is partly allowed, entitling the claimants to the additional amount of Rs.32,000/- at the rate of 7.5% interest from the date of claim petition till realization.
18.3 First Appeal Nos.567, 568 and 569 of 2016, which are filed against the impugned judgments in MACP Nos.129, 130, 131 of 1995, are partly allowed. The appellants in case of claims on the death of minors are now entitled to get additional compensation of Rs.4,07,000/- at the rate of Rs.7.5% interest from the date of claim petitions till realization.
18.4 First Appeal No.570 of 2016 is dismissed, as the amount of Rs.26,000/- granted by the Tribunal towards the damage of vehicle is just and proper.
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19. In view of the above, the impugned common judgment and award passed by Motor Accident Claims Tribunal (Main), Surendranagar on 27.12.2002 in M.A.C.P. Nos.127/1995 to 132/1995 stands modified to the aforesaid extent. The additional amount, which is granted, be deposited before the Tribunal concerned within Eight Weeks of receipt of writ. The Nazir to refund the amount to the insurance company as per order in case of MACP No.127 of 1995.
19.1 After the deposit of money in compliance of the order, the same be given to the claimants on proper verification of identity by Account Payee Cheque/NEFT/RTGS in the ratio to be decided by the Tribunal concerned.
20. Record and Proceeding be sent back to the concerned Tribunal.
(GITA GOPI,J) Pankaj Page 64 of 64 Downloaded on : Thu Mar 07 20:45:59 IST 2024