Gujarat High Court
Aduba Dolubha Jadeja W/O Decd vs The United India Insurance Company Ltd on 6 August, 2024
NEUTRAL CITATION
C/X-OBJ/448/2023 ORDER DATED: 06/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CROSS OBJECTION NO. 448 of 2023
In R/FIRST APPEAL NO. 3117 of 2022
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ADUBA DOLUBHA JADEJA W/O DECD & ANR.
Versus
THE UNITED INDIA INSURANCE COMPANY LTD & ORS.
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1,2
MR AB MUNSHI(1238) for the Defendant(s) No. 2,3
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 06/08/2024
ORAL ORDER
1. The present Cross-Objection is filed by the appellants-legal heirs of the deceased under Section 173 of the Motor Vehicles Act, 198, being aggrieved and dissatisfied with the judgment and award dated 28.10.2021 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP Nos.130 of 2014, whereby the claim petition of the claimant/s was partly allowed and the original opponents were ordered to pay the amount of compensation of Rs.19,06,100/- along with proportionate costs and interest thereon at the rate of 9% p.a. from the date of filing till realization.
2.1 The brief facts leading to filing of this cross-objection are such that on 16.06.2013 at 9.30 a.m. in the morning the deceased and injured persons namely, Dolubha and Dashrathsinh were returning from T.P.S. Sikka to Mungni on Motorcycle, where applicant- Dashrathsinh was driving Motorcycle and deceased Dolubha was Page 1 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024 NEUTRAL CITATION C/X-OBJ/448/2023 ORDER DATED: 06/08/2024 undefined sitting as a pillion rider in the Motorcycle, when they reached near Mungni village, the applicant- Dashrathsinh had parked his Motorcycle on left side, even though the Opponent No.1 drove his vehicle Hydro Crane bearing Registration No.GJ-6-AB-8196 and came from wrong side with an excessive speed and in negligently manner and put human life endanger and caused an accident, resulting into the grave accidental injuries to the applicants; deceased Dolubha succumb to the said vehicle injuries and accident occurred due to sole negligence on the part of opponent No.1. In this connection the offence registered which carries crime Registration No. 162 of 2013 in Panch "B" Police Station against the driver-opponent No.01. Therefore, the applicants have filed the present Claim Petition claiming compensation from the Opponents herein that is driver, owner and Insurance Company of Hydro Crane.
2.2 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above and by making liable all the parties.
2.3 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present cross-objection is preferred by the claimant for enhancement.
3. Learned advocate the appellant/s - claimant/s has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like funeral expenses and loss of estate, consortium, Page 2 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024 NEUTRAL CITATION C/X-OBJ/448/2023 ORDER DATED: 06/08/2024 undefined negligence, and family circumstances, etc. It is submitted that the Tribunal has rightly awarded the amount of compensation of Rs.26,46,000/- towards loss of dependency benefits after considering the materials available on the record. It is also submitted that the Tribunal has committed an error by awarding meager compensation under the head of loss of estate and funeral expenses, which should be more in view of decisions of Hon'ble Apex Court in the case of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC
780. It is further submitted that the deceased was married and therefore, he has left the dependents in the family behind him. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of consortium. It is submitted that under other heads except above, the Tribunal has rightly considered the amount of compensation. It is submitted that considering the principle of composite negligence in case of pillion rider, negligence of the present appellant is not required to be considered. It is submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this cross-objection may be allowed.
4. Per contra, learned advocate for contesting respondent No.3 - insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased.It is also submitted that under the head of loss of estate and funeral expenses, the Page 3 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024 NEUTRAL CITATION C/X-OBJ/448/2023 ORDER DATED: 06/08/2024 undefined Tribunal has rightly awarded compensation. It is submitted that the Tribunal has rightly held the negligence of the appellant to the extent of 30%. It is also submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. However, from the submissions made by learned advocate for the appellant/s that the Tribunal has committed certain errors, on this aspect, learned advocates for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order, in the interest of justice. It is submitted that this cross-objection may be dismissed and no interference be made by this Court.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimant/s. At the outset, I have considering the decision cited at the bar by learned advocate for the appellant. The judgments cited at the bar by learned advocate for the appellant is helpful to the facts of the present case.
6.1 I have considered the submissions made by the rival parties. I Page 4 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024 NEUTRAL CITATION C/X-OBJ/448/2023 ORDER DATED: 06/08/2024 undefined
have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is noted that the claimant has by and large claimed enhancement towards like funeral expenses and loss of estate, consortium, negligence, and family circumstances, etc. It transpires that the Tribunal has considered the amount of compensation of Rs.26,46,000/- towards loss of dependency benefits after considering the materials available on the record, which is rightly considered by the Tribunal. Otherwise also, the same is not disputed by learned advocate for the appellant.
6.2 Further, under the head of loss of consortium, the Tribunal has awarded Rs.44,000/- only, which should be on higher side. It is not in dispute that there are two dependents in the family. In view of the decisions of Hon'ble Apex Court in the cases of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, under the head of loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%) would be proper to award, therefore, Rs.48,400/- x 2 dependents = Rs.96,800/- would be the compensation under the head of loss of consortium.
6.3 Further, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, would be the just and proper compensation, considering the decisions of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra).
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Furthermore, under other heads except the above, the amount awarded by the Tribunal is not disputed by learned advocate for the appellant/s, otherwise also, the Tribunal has rightly considered the amount under those heads.
6.4 Furthermore, considering the facts and circumstances of the case and taking into account the composite negligence in case of pillion rider, I found that negligence of the present appellant is not required to be considered. The present appellant cannot be held liable for commission of accident.
6.5 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of dependency benefits 26,46,000/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 96,800/-
Total... 27,79,100/-
Less : Amount which is 19,06,100/-
already awarded
Additional amount which is 8,73,000/-
awarded
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.27,79,100/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Page 6 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024 NEUTRAL CITATION C/X-OBJ/448/2023 ORDER DATED: 06/08/2024 undefined Tribunal shall remain same. The Tribunal has already awarded Rs.19,06,100/- and, therefore, remaining amount of Rs.8,73,000/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present Cross-objection is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 28.10.2021 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP Nos.130 of 2014 is modified to the aforesaid extent.
8.3 The respondent No.3 - Insurance Company is directed to first deposit the enhanced amount Rs.8,73,000/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order, and thereafter recover the same from other tort-feasor(s) in accordance with law.
8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 7 of 7 Downloaded on : Tue Aug 13 20:33:04 IST 2024