Gujarat High Court
Oriental Insurance Co Ltd vs Niru Alias Niharika Wd/O Nareshbhai ... on 11 October, 2019
Equivalent citations: AIRONLINE 2019 GUJ 427, 2020 AAC 367 (GUJ)
Author: Bela M. Trivedi
Bench: Bela M. Trivedi, V.P. Patel
C/FA/1789/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1789 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
and
HONOURABLE MR.JUSTICE V.P. PATEL Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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ORIENTAL INSURANCE CO LTD
Versus
NIRU ALIAS NIHARIKA WD/O NARESHBHAI BALVANTRAI DESAI
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 4,5
MR JAIMIN PANDYA WITH MR PREMAL S RACHH(3297) for the
Defendant(s) No. 1,2,3
MR TARAK DAMANI(6089) for the Defendant(s) No. 6
MR.NANDISH H THACKAR(7008) for the Defendant(s) No. 1,2,3
NOTICE SERVED(4) for the Defendant(s) No. 7
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
and
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C/FA/1789/2019 CAV JUDGMENT
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 11/10/2019
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE V.P. PATEL)
1. Admit. Learned Advocate Mr.Premal Rachh for the respondent Nos.1, 2 & 3, learned Advocate Mr.Mansuri for the respondent Nos.4 & 5 and learned Advocate Mr.Dhamani for the respondent No.6 waive service of notice of Admission. With the consent of the learned Advocates for the parties, the appeal was heard finally.
2. The First Appeal filed under Section 173 of the Motor Vehicles Act (hereinafter referred to as "the MV Act") is directed against the judgement and award dated 19.12.2017 passed by the MAC Tribunal (Main), Surat in MACP No.891 of 1995, whereby the Tribunal has awarded Rs.79,03,540/- with interest at the rate of 9% per annum thereon from the date of claim petition till the realization, for the death of the Nareshbhai Balvantrai Desai, the husband of the respondent No.1 and father of the respondent Nos.2 and 3 (original claimants).
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3. The facts giving rise to the present appeal in nutshell are that the respondent Nos.1, 2 and 3 (original claimants) had filed the MACP No.891 of 1995 under Section 166 of the MV Act, claiming compensation to the tune of Rs.1 crore, which was subsequently permitted to be enhanced to Rs.1,30,00,000/- from the present respondent Nos.4, 5, 6, and 7 for the death of the deceased Nareshbhai. As per the case of the claimants, on the date of the accident i.e. on 18.11.1995 at about 9.30 a.m., the said Nareshbhai was going towards Surat from Kosamba in his Maruti Car bearing Registration No.GJ-16-C-1123 driven by the present respondent No.6 (original Opponent No.4), and at that time, the respondent No.4 (original Opponent No.1) driving the truck bearing Registration No.GRN-4998 came from the opposite side rashly and negligently and dashed with the car of the said Nareshbhai. As a result thereof, Nareshbhai sustained serious injuries and other occupants of the car also sustained injuries. The said Nareshbhai was thereafter admitted to the Mahavir Hospital, where he succumbed to the injuries on 21.11.1995. The Page 3 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT respondents - claimants, therefore, had filed the claim petition, which came to be partly allowed by the Tribunal as stated herein above vide the award dated 19.12.2017. Being aggrieved by the same, the appellant Insurance Company in respect of the offending truck has preferred the present appeal.
4. From the record, it transpires that the respondent - claimants had examined the Claimant No.1 - Niru @ Niharika, widow of Nareshbhai Balvantrai Desai and produced number of documentary evidence in support of their claim. At the outset, it may be noted that the learned Advocate for the appellant has not seriously disputed the involvement of the offending truck in the accident in question, nor has disputed the date, time and the manner in which the accident had taken place. As such the findings of the Tribunal as regards the negligence of the driver of the offending truck has also not been assailed by the learned Advocate for the appellant either in the appeal memo or during the course of oral arguments. The bone of Page 4 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT contention raised by the learned Advocate for the appellant is that the compensation awarded by the Tribunal is on higher side, inasmuch as the Tribunal has awarded the compensation relying upon the exchange rate at 54.2601 INR per Pound, whereas actual average exchange rate at the relevant time was 52.3526 INR per Pound, as per the information displayed on the RBI Website (Annexure-B).
5. Learned Advocate Mr.Premal Rachh appearing for the respondent - claimants has fairly stated that he has no objection if the compensation is calculated at the rate displayed on RBI Website and reduced accordingly without disturbing findings on the other heads under which the compensation has been awarded by the Tribunal.
6. In view of the above, the Court is not required to go into the issues as regards the negligence of the offending truck driver, which even otherwise has been proved by the respondent - claimants by producing the complaint at Exh.47 lodged by the respondent No.4 (original Opponent No.1), the driver of the offending truck Page 5 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT himself, and the panchnama of the place of occurrence of the accident at Exh.48. It also appears that the present respondent No.6 (Original Opponent No.4), who was the driver of the Maruti Car in which the deceased was travelling, was also injured and had filed the MACP No.273 of 1998 before the MACT, Navsari. In the said petition, the negligence of the driver of the offending truck i.e. respondent No.4 was proved and the Tribunal considering the evidence on record in the instant case, had held that the respondent No.4 (Original Opponent No.1) was rash and negligent in driving the offending truck, which had resulted into the accident of the death of the said Nareshbhai.
7. The income and birth certificate of the deceased Nareshbhai were also duly proved by the respondent - claimants before the Tribunal by adducing the birth certificate and the salary slip. The Tribunal has also duly considered the same and granted 30% towards prospective income considering the age of the deceased and had applied the multiplier of 13, as also deducted Page 6 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT rd 1/3 towards personal expenses as per the judgement of the Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., reported in 2010(1) GLR 17. Hence, the only point of determination, which calls for consideration before the Court is as to whether the Tribunal had rightly applied the exchange rate while calculating the loss of dependency to be awarded to the claimants.
8. As stated earlier, the learned Advocate for the appellant Insurance Company has produced on record the information of exchange rate of Indian rupee Vs. Pound Sterling, as put by the RBI on its Website at Annexure-B, which has not been disputed by the learned Advocate for the respondent - claimants. It transpires from the said Annexure-B that at the relevant time, i.e. in the year 1995-96, the average exchange rate was 52.3526 INR per Pound and not 54.2601 INR per Pound as considered by the Tribunal. The compensation awarded by the Tribunal, therefore, is required to be reduced to the said extent. If the said rate is made applicable, the Court is Page 7 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT of the opinion that the Tribunal has awarded Rs.2,39,616/- more to the respondent - claimants, which the appellant Insurance Company would be entitled to recover, if already paid by it.
9. For the reasons stated above, it is held that the respondent - claimants would be entitled to the compensation to the tune Rs.76,63,924/- (as against Rs.79,03,540/-) with interest at the rate of 9% per annum from the date of claim petition till realization. The appellant Insurance Company shall be entitled to recover Rs.2,39,616/- with interest at the rate of 9% per annum with proportionate cost from the respondent - claimants, if the entire amount as awarded by the Tribunal is deposited and/or invested as directed by the Tribunal. The award dated 19.12.2017 made by the Tribunal stands modified to the aforesaid extent. The rest of the findings with regard to the investment and disbursement of the awarded amount shall remain unaltered.
10. The appeal stands partly allowed to the Page 8 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019 C/FA/1789/2019 CAV JUDGMENT aforesaid extent. R & P be sent back to the Tribunal.
(BELA M. TRIVEDI, J) (V. P. PATEL,J) V.V.P. PODUVAL Page 9 of 9 Downloaded on : Sat Oct 12 05:49:18 IST 2019