Gujarat High Court
New India Insurance Co. Ltd vs Kaluji @ Kalidas Somaji Thakor & 5 on 28 July, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/498/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 498 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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 ?
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NEW INDIA INSURANCE CO. LTD....Appellant(s)
Versus
KALUJI @ KALIDAS SOMAJI THAKOR & 5....Defendant(s)
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Appearance:
MR PALAK H THAKKAR, ADVOCATE for the Appellant(s) No. 1
MR MANISH J PATEL, ADVOCATE for the Defendant(s) No. 1 - 2
RULE SERVED for the Defendant(s) No. 3 , 5.1 - 5.3
RULE UNSERVED for the Defendant(s) No. 4 , 6
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 28/07/2017
ORAL JUDGMENT
1. Being aggrieved by the judgment and award passed by Motor Accident Claim Tribunal (Auxi.) City Civil Court, Ahmedabad in M.A.C.P. No. 99 of 2006 Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT dated 23.12.2014, the Appellant-Insurance Company has filed this Appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter for short "the Act") .
2. The facts which arise in this Appeal are as under:-
3. The son of the original claimants was the driver of respondent No.5A to 5C . The said vehicle was the Qualis car bearing registration No. GJ-1-HF- 9981.The record further indicates that on 7.6.2006 when the vehicle driven by the son of the applicant was passing through the village Gannod on highway towards Ahmedabad from Porbandar, the truck belonging to respondent No.6 herein, bearing registration No. GJ-11-T-9742, came in full speed from the opposite side. The truck was being driven on the wrong side and it dashed with the Qualis car. The son of the applicant Hasmukhbhai sustained injuries and died on the spot.
4. The original applicants therefore, preferred claim petition as provided under Section 163-A of the Act and claimed compensation to the tune of Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT Rs.8,00,000/- .
5. The record further indicates that the documentary evidence was led by the applicants- claimants more particularly certified copy of the Panchnama at Exh. 65, certified copy of the Inquest Panchnama at Exh.66, certified copy of P.M. Report at exh.67, certified copy of the death certificate at Exh.70, copy of the driving license of the deceased Hasmukhbhai at Exh. 71 and copy of School Leaving Certificate of deceased Hasmukhbhai at exh. 72, Registration Book of the truck and police car at Exh. 73 and 74 respectively and so also the Insurance policy of both the vehicles being Exhs. 75 and 76 respectively.
6. The original applicant No.1 was examined and also gave oral testimony at exh. 50 and Hon'ble Tribunal by the impugned judgment and awarded a sum of Rs.5,83,500/- alongwith 9% interest per annum from the date of filing of the petition till payment alongwith the proportionate costs. The said judgment is under challenge in this appeal.
7. Heard Mr.Palak Thakkar, learned Counsel Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT appearing for the appellant, Mr.Manish J.Patel, learned Counsel appearing for the respondents No. 1 and 2 -original claimants. Though served, no one appears for rest of the respondents.
8. Mr.Palak Thakkar, learned Counsel appearing for the appellant has contended that the tribunal has erred in applying the principle for deciding the claim application under Section 166 of the Act, even though, the present application is under Section 163-A of the Act. Mr.Thakkar, learned Counsel has relied upon the judgment of the Apex Court rendered in case of National Insurance Company Limited Vs. Gurumallamma and Another reported in (2009)16 SCC 43 wherein, it is held that the method of determining the compensation under section 163-A of the Act is to be calculated as per the structured formula as provided under Schedule II and the same has to be followed. It was contended that the Tribunal has not applied the same and even the multiplier has been wrongly applied. Mr.Thakkar, learned Counsel therefore contended that the present appeal is filed for the limited purpose and if the II Schedule is followed, the respondents No. 1 and 2 -original claimants Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT would be entitled to the sum of Rs. 3,91,500/- as total compensation under the Act. Mr.Palak Thakkar, learned Counsel contended that even if the income of the deceased is calculated as Rs.36,000/- per annum, deducting 1/3 of it towards personal expenses, as the deceased was 31 years old on the date of accident, the claimants would be entitled to Rs.3,84,000/- as compensation under the head of Loss of dependency (Rs.5,76,000/- minus 1/3 Rs.1,92,000/- ). It was contended that the learned Tribunal has wrongly adopted its own method of calculation and has thus committed an error. Mr.Palak Thakkar, learned Counsel also contended that the learned Tribunal has committed an error in awarding 9% interest which is excessive in nature, as accident has occurred on 7th June, 2006. Respondents No. 1 and 2 -original claimants would be entitled to interest at the rate of 7.5% and hence, the appeal may be allowed as prayed for. The Court's determination of compensation under the head of loss of dependency in the aforesaid grounds may be allowed as prayed for.
9. Mr. Manish J. Patel, learned Counsel appearing for the respondents No. 1 and 2 has supported the Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT award and has contended that the Act being a beneficial legislation has to be liberally construed. It was contended that the Tribunal has committed no error in calculating the compensation under the Head of loss of dependency. Mr. Patel, learned Counsel also contended that the Tribunal has rightly awarded 9% interest .
10. No other or further submissions have been made by learned Counsels appearing for the parties.
11. Upon considering the submissions made and on perusal of the record and proceedings of the Tribunal and on re-appreciation of the evidence on record, it is an admitted position that the claim petition was filed under Section 163-A of the Act. Learned Tribunal while determining the compensation under the head of loss of dependency has considered its own formula and has not followed II Schedule. Section 163-A of the Act clearly provides that authorized insurer shall be liable to pay, in the case of death or permanent disablement due to accident arising out of the use of motor vehicle compensation as indicated in the II Schedule.
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C/FA/498/2015 JUDGMENT
12. The Hon'ble Apex Court in case of National Insurance Company Limited (Supra) has observed thus :-
"5. Section 163A was inserted by Act No.54 of 1994 as a special measure to ameliorate the difficulties of the family members of a deceased who died in use of a motor vehicle. It contains a non-obstante clause. It makes the owner of a motor vehicle or the authorized insurer liable to pay in the case of death, the amount of compensation as indicated in the Second Schedule to his legal heirs.
6. The Second Schedule provides for the amount of compensation for third party Fatal Accident/Injury Cases Claims. It provides for the age of the victim and also provides for the multiplier for arriving at the amount of compensation which became payable to the heirs and legal representatives of the deceased depending upon his annual income.
7. The Second Schedule furthermore provides that in a case of fatal accident,the amount of claim shall be reduced by 1/3rd in consideration of the expenses which the victim would have incurred upon himself, had he been alive. It Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT provides for the amount of minimum compensation of Rs.50,000/-. It furthermore provides for payment of general damages as specified in Note 3 thereof.
8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs.7,60,000/-.
9. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities.
10. The Parliament in laying down the Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT amount of compensation in the Second Schedule, as indicated hereinbefore, in its wisdom, provided for payment of some amount which should be treated to be the minimum. It took into consideration the fact that a person's potentiality to earn is highest when he is aged between 25 and 30 years and that is why in case of permanent disability multiplier of 18 has been specified. The very fact that even if the deceased had an income of Rs.3,000/- per month, he being aged about 15 years would receive a sum of Rs.60,000/- but if his income was Rs.40,000/- per annum, his legal heirs and representatives would receive a sum of Rs.8,00,000/-. In the case of any non-earning person, the notional income has been fixed at Rs.15,000/- per annum."
13. Mr.Palak Thakkar, learned Counsel appearing for the appellant is correct in contending that when the application was under Section 163-A of the Act, the Tribunal can grant compensation under the head of loss of dependency only as per Schedule II. Section 163-A clearly provides that compensation has to be awarded as per structured formula and even on facts, it is found that the Tribunal has committed an error in coming to the conclusion that Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT the claimants would be entitled to sum of Rs. 5,76,000/- as compensation under the head of loss of dependency. In the case on hand even taking into consideration that the income of the deceased was Rs.36,000/- (3000x12) and age being 31 years as per structured formula as provided under Schedule II, the respondents No. 1 and 2 -original claimants, would be entitled to sum of Rs.5,76,000/- as loss of dependency and 1/3rd would be deducted towards personal expenses of the deceased if he had been alive which would come to Rs. 3,84,000/-. Thus following the ratio laid down by the Apex Court in case of National Insurance Company Limited (Supra) and as per II Schedule, respondents No. 1 and 2 -original claimants would be entitled to the following amount:-
Rs. 3,84,000/- under the Head of loss of dependency.
Rs. 5,000/- under the loss of life-estate-love and affection Rs. 2,500/- towards the funeral expenses =========== Rs. 3,91,500/- Total
14. Thus total compensation would be Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Aug 18 08:05:28 IST 2017 C/FA/498/2015 JUDGMENT Rs.3,91,500/- alongwith 9% interest and proportionate cost.
15. Appeal is thus allowed. Respondents No. 1 and 2 would be entitled to the compensation of Rs.3,91,500/- along with 9% interest from the date of filing of the application till payment alongwith the proportionate costs.
16. The appellant-Insurance Company would be entitled to refund of Rs.1,92,000/- alongwith interest accrued and proportionate cost. Rest of the award would remain unaltered. The parties to bear their own costs.
17. Record and proceedings be transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J.) BINA Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Aug 18 08:05:28 IST 2017