Gujarat High Court
The New India Assurance Company ... vs Dilipbhai Vallabhbhai Prajapati on 8 October, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2095/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2095 of 2018
with
CIVIL APPLICATION NO. 1 of 2018
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THE NEW INDIA ASSURANCE COMPANY LIMITED, VADODARA
Versus
DILIPBHAI VALLABHBHAI PRAJAPATI
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Appearance:
MR VIBHUTI NANAVATI(513) for the PETITIONER(s) No. 1
MR MOHSIN M HAKIM(5396) for the RESPONDENT(s) No. 3,4
NOTICE SERVED(4) for the RESPONDENT(s) No. 2,5
NOTICE UNSERVED(8) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 08/10/2018
ORAL ORDER
1. Being aggrieved and dissatisfied by the judgment and award dated 10.01.2018 passed by the Motor Accident Claims Tribunal (Aux), Vadodara in MACP No.1746 of 2010, the insurance company has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2. Heard Ms. Nanavati, learned advocate for Mr. Vibhuti Nanavati for the appellant and Mr. Mohsin Hakim, learned advocate for respondents no.3 to 5original claimants. It was pointed out by Ms. Nanavati that the appeal is directed only on the ground of quantum of the total compensation awarded to the respondents original claimants and requested that the appeal be taken up for its final disposal. Mr. Mohsin Page 1 of 9 C/FA/2095/2018 ORDER Hakim, learned advocate appearing for the respondentsoriginal claimants also stated that the appeal may be heard finally.
3. Ms.Nanavati has produced on record the evidence which was adduced before the Tribunal for perusal of this Court.
4. The following facts emerge from the record of the appeal 4.1 That the deceased was driving his motorcycle bearing registration no. GJ06CE 320 between Manjalpur to Makarpura on 07.10.2010. It is the case of the respondentsoriginal claimants that driver of the Vitcos bus bearing registration NO. GJ06 VV21 came from behind and tried to overtake from the wrong side and dashed with the motorcycle because of which the deceased sustained grievous injuries and succumbed to the same during the treatment.
4.2 It was the case of the original claimants that the deceased was working in Paragon Synthetic Polymers Co. Ltd. and was drawing salary of Rs.6,000/. The respondent no.3 herein, the original claimant was examined at exhibit 13 and the original claimants also examined their own witness at exhibit 32 to buttress their case as far as monthly income is concerned. The Tribunal considered the Page 2 of 9 C/FA/2095/2018 ORDER evidence on record and more particularly the evidence adduced by the original claimants by way of oral deposition of their witness at exhibit 35, income certificate at exhibit 38, letter of appointment at exhibit 30, came to the conclusion that the gross salary of the deceased was Rs.5,995/ per month and the net salary was Rs.5,975/ and as per the school leaving certificate at exhibit 26, the deceased was aged 24 years old, gave benefit of increase in income to the extent of 40% and as the deceased was a bachelor, deducted 1/2 and applied multiplier of 18 and granted Rs.9,03,420/ under the head of loss of dependency. The Tribunal following the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680 granted compensation under the conventional head to the tune of Rs.30,000/ being 15,000/ as funeral expenses and Rs.15,000/ under the head of loss of estate. Over and above that, the Tribunal also awarded a sum of Rs.2,39,600/ as medical expenses and thus, granted total compensation of Rs.11,73,020/ with 9% interest and proportionate costs. The Insurance Company being aggrieved by the aforesaid judgment and award has preferred this appeal.
5. Ms.Nanavati, learned advocate appearing for the Page 3 of 9 C/FA/2095/2018 ORDER appellant has contended that the Tribunal has erred in considering the income of the deceased at Rs.5,975/. Ms. Nanavati relying upon the deposition at exhibit 35 as well as certificate at exhibit 38, contended that the income of the deceased should be construed at Rs.5,870/ p.m. as that was the net salary which was paid by the employer to the deceased. Ms. Nanavati further contended that the Tribunal has also erred in granting full award as medical expenses and has not considered the evidence which was adduced before the Tribunal by the appellant that the claimant had received Rs.1,98,540/ under mediclaim insurance policy. Ms. Nanavati therefore contended that the respondents claimants would be entitled to Rs.41,058/ as medical expenses which are over and above the mediclaim which was awarded to the respondent claimants. Ms. Nanavati also further submitted that considering the date of accident to be 07.10.2010, the Tribunal ought to have granted interest at the rate of 7.5%. On the aforesaid grounds, it was therefore contended by Ms. Nanavati that the impugned judgment and award deserves to be modified and the appeal be allowed to the aforesaid extent.
6. Per contra, Mr. Mohsin Hakim, learned advocate appearing for the original claimants contended that even though the Tribunal has relied upon and followed the judgment of the Apex Court in the case of Pranay Sethi (supra) and by evidence Page 4 of 9 C/FA/2095/2018 ORDER of the witness of the respondentsclaimants at exhibit 35 and document at exhibit 38 clearly shows that the deceased had a permanent fixed job and the Tribunal in fact has erred in granting prospective income only to the extent of 40% which should be 50%. Mr.Mohsin Hakim further contended that the Tribunal has not erred in determining the income at Rs.5,975/ per month and the Tribunal has rightly exercised discretion by awarding interest considering the date of the accident and the same does not require any modification. Mr. Hakim, however, on instructions, stated that it is a matter of fact that the claimants have received mediclaim of Rs.1,98,540/ and therefore, this Court may modify the award and grant remaining amount of Rs.41,058/ towards medical expenses. Mr. Mohsin Hakim submitted that except aforesaid, no modification is required and the appeal otherwise is meritless and same deserves to be dismissed.
7. No other or further submissions have been made by the learned counsel appearing for the parties.
8. Upon considering the deposition of the witness of original claimant at exhibit 35 and considering the certificate at exhibit 38, after considering the deduction, the Tribunal has wrongly considered the income of the deceased at Rs.5,975/, which in light of the aforesaid Page 5 of 9 C/FA/2095/2018 ORDER evidence, the income of the deceased was Rs.5,870/ per month and the same deserves to be modified to that extent. At this stage, it would be appropriate to refer to the judgment of the Apex Court in the case of Pranay Sethi (supra), wherein the Apex Court has observed thus "61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The twoJudge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the Page 6 of 9 C/FA/2095/2018 ORDER warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
9. While examining the case on hand, the deposition of witness at exhibit 35 as well as income certificate at exhibit 38 clearly spells out that the deceased had a permanent job on monthly salary in Paragon Synthetic Polymers Co. Pvt. Ltd. and therefore, as per the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the respondents original claimants would be entitled to increase in income by way of prospective income to the extent of 50% and Page 7 of 9 C/FA/2095/2018 ORDER and not 40% as awarded by the Tribunal.
10. As far as interest is concerned, the contention is negatived as in opinion of this Court, in facts of this case, the Tribunal has correctly exercised the discretion and considering the date of the accident as 07.10.2010, has rightly awarded interest at the rate of 9%.
11. As observed hereinabove, the Tribunal has awarded additional amount as medical expense, which deserves to be sliced down to Rs.41,058/ as it is an admitted by the respondentsoriginal claimants that they have received Rs.1,98,540/ under the mediclaim policy. Even as per the ratio laid down by the Apex Court in the case of Reliance General Insurance Co. Ltd. vs. Shashi Sharma and ors. reported in 2016(9) SCC 627 the respondentsclaimants would not be entitled to double amount under the medical expenses. Having come to the aforesaid conclusion therefore, the appellants would be entitled to compensation under the head of loss of dependency as under Rs.5,870/ (income) + Rs.2,935 (50% prospective income) = Rs.8,805/ Rs.4,402/ (towards personal expenses) = Rs.4,403/ X 12 X 18 (multiplier) = Rs.9,51,048/ (Loss of dependency) Over and above the said amount, the respondents claimants would be entitled to Rs.30,000/ as loss of estate and funeral expenses and Page 8 of 9 C/FA/2095/2018 ORDER Rs.41,058/ towards medical expenses and thus, the respondentsoriginal claimants would be entitled to total compensation of Rs.10,22,106/ with 9% interest from the date of filing of the claim petition till its realisation. The impugned judgment and award stands modified to the aforesaid extent.
12. The learned Tribunal has granted Rs.11,73,020/ and hence, the appellant insurance company would be entitled to refund of Rs.1,50,914/ with 9% interest from the date of filing of the claim petition till its realisation with proportionate cost. The impugned judgment and award stands modified to the aforesaid extent. The appeal is thus partly allowed. However, there shall be no order as to costs. As the appeal is disposed of, Civil Application would not survive and the same shall stand disposed of.
(R.M.CHHAYA, J) BIJOY B. PILLAI Page 9 of 9