Gujarat High Court
National Insurance Co vs Gordhanbhai Damjibhai Nakum & 5 on 14 October, 2014
Author: Vipul M. Pancholi
Bench: Akil Kureshi, Vipul M. Pancholi
C/FA/3894/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3894 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
================================================================
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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
NATIONAL INSURANCE CO.....Appellant(s)
Versus
GORDHANBHAI DAMJIBHAI NAKUM & 5....Defendant(s)
================================================================
Appearance:
MR RD MEHTA FOR MR DAKSHESH MEHTA, ADVOCATE for the
Appellant(s) No. 1
MR RC KAKKAD, ADVOCATE for the Defendant(s) No. 1 - 4
RULE UNSERVED for the Defendant(s) No. 5 - 6
================================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
Page 1 of 11
C/FA/3894/2006 JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 14/10/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) Heard learned advocate Mr.R.D.Mehta for Mr.Dakshesh Mehta for the appellant Insurance Company and learned advocate Mr.R.C.Kakkad for the original claimants, present opponents Nos. 1 to 4.
The present appeal is filed by the Insurance company challenging the judgment and award dated 9.12.2005 rendered by the Motor Accident Claims Tribunal, Jamnagar in Motor Accident Claim Petition No.801/97. Brief facts of the present case are as under:
That on 18.08.97, the deceased Sandipkumar was going on Hero Honda motorcycle bearing registration No.GJ-10-D-2515 from Vadodara to Borsad as a pillion rider and at about 9.00 a.m. when they were near Mahisagar bridge, one tractor-trailer bearing registration No.MH-35-922 came from behind and dashed the Hero Honda motor-cycle, as a result of which Sandipkumar had fallen down and sustained grievous injuries and died on the spot.
Father, mother, widow and minor son of the deceased filed the claim petition before the Motor Accident Claims Tribunal against the driver and the owner of the tractor-trailer and also against the Page 2 of 11 C/FA/3894/2006 JUDGMENT present appellant Insurance Company. In the said claim petition, it was stated that the age of the deceased Sandipkumar was 23 years at the time of the accident. It was further stated that the deceased was possessing the degree of Bachelor of Engineering which he got in May-June 1996 and he had joined in GSFC as a Chemical Engineer (Shift Engineer Grade II) in July 1997. It was further stated in the claim petition that he had worked for 16 days and got the pay of Rs.8300/- and therefore, his salary per month would be Rs.16,000/-. On the basis of such facts, the claimants claimed Rs.30 lacs with interest and cost.
The appellant Insurance Company contested the claim petition by filing written statement. The claimants produced documentary evidence. Claimant No.1 gave evidence in the form of an affidavit vide Ex.22. The original opponents have not examined any witness in support of their case. The Tribunal held that the accident has occurred due to the rash and negligent driving of the tractor-trailer.
So far as the issue of quantum of compensation is concerned, the Tribunal awarded total amount of Rs.29,23,000/- with interest at the rate of 9% per annum till December 2000 and thereafter at the rate of 6% per annum till realization with proportionate cost.
The appellant Insurance Company, therefore, challenged the judgment and award dated 09.12.2005 rendered by the Motor Accident Claims Tribunal, Jamnagar in the aforesaid claim petition. The said judgment and award is challenged mainly on the ground of Page 3 of 11 C/FA/3894/2006 JUDGMENT quantum of compensation.
At this stage, it is relevant to note that the appellant Insurance Company has not challenged the liability to make the payment nor there is any dispute with regard to the vehicle involved in the accident. Therefore, though opponents Nos.5 and 6 who are the driver and owner of the tractor-trailer are not served in the present appeal, the present appeal is heard on merits in absence of them.
Learned advocate Mr.Mehta appearing for the appellant mainly submitted that the Tribunal has committed an error in considering the monthly income of the deceased Sandipkumar at Rs.16,000/- per month. It is further contended that the learned Tribunal has committed an error in observing that the deceased had performed his duties for 16 days for which he was paid Rs.8300/- and therefore, his salary for one month would be Rs.16,000/-. Thereafter on the basis of such income, the prospective income of the deceased was considered at Rs.20,000/- per month and thereafter one-third amount was deducted towards personal expenses and pocket expenses of the deceased thereby the Tribunal committed an error while arriving at the dependency benefits at Rs.28,80,000/-.
Learned advocate Mr.R.C.Kakkad appearing on behalf of the original-claimants present respondents Nos.1 to 4 submitted that the learned Tribunal has calculated the amount of compensation on the basis of the salary slip produced at Ex.31. He has further submitted Page 4 of 11 C/FA/3894/2006 JUDGMENT that if the deceased got the pay of Rs.8307/- for 16 days, then for one month, his salary would be Rs.16,000/-. It was further submitted by learned advocate Mr.Kakkad that the learned Tribunal has wrongly applied the multiplier of 15. He has relied upon the decision of the Hon'ble Supreme Court rendered in the case of Sarla Varma v. DTC, reported in (2009) 6 SCC 121. Relying upon the said decision, more particularly para 42, he has submitted that multiplier of 18 ought to have been applied by the learned Tribunal.
We have perused the record and proceedings and the impugned judgment and award passed by the learned Tribunal and after considering the evidence on record and submissions made on behalf of the learned advocates for the parties, we are of the view that the learned Tribunal has committed an error by considering the income of the deceased Sandipkumar at Rs.16,000/- on the basis of salary slip, Ex.31. If the pay slip for the month of July 1997 is carefully seen, it is revealed that the said pay slip is for 31 days wherein the total taxable income of the deceased was shown as Rs.46,000/- from which Rs.150/- was deducted by way of tax. Thus, prima facie it is clear that such pay slip is not for a period of 16 days and therefore, the learned Tribunal has wrongly considered the salary of the deceased Sandip Kumar at Rs.16,000/- per month. From the aforesaid pay slip, the salary of the deceased can be considered at Rs.8300/- out of which Rs.150/- by way of tax is deducted the monthly income of the deceased would be Rs.8200/- per month. Further, we are of the opinion that if the ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra) is Page 5 of 11 C/FA/3894/2006 JUDGMENT applied in the present case, then 50% can be added to the actual salary of the deceased by way of future prospects. At this stage, it is required to be noted that the learned Tribunal has deducted one- third amount for the personal expenses and other pocket expenses of the deceased. However, from the record, it appears that there are four dependents-claimants and therefore, instead of one-third, one- fourth amount was required to be deducted by the learned Tribunal towards the personal expenses and other pocket expenses of the deceased. Thus, from the aforesaid, if we consider the monthly income of the deceased as Rs.8200 and 50% future prospective income can be added, then it would come to Rs.12,300/- per month. Out of the said amount of Rs.12,300/-, if one-fourth amount is deducted towards personal and out of pocket expenses, it would come to Rs.9225/- per month. Thus the claimants are entitled to get Rs.9225 x 12 per year and thereafter if the multiplier of 18 is applied, then it it would come to Rs.19,92,600/-.
At this stage, learned counsel Shri Kakkad for the claimants urged that in terms of the judgment of the Supreme Court in the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54, the claimants would be entitled to Rs.1 lac under the head of consortium and Rs.1 lac towards loss of care and guidance to the child. He pointed out that in a later decision in the case of Vimal Kanwar v. Kishore Dan, (2013) 7 SCC 476, the Supreme Court once again granted Rs.1 lac under such heads. It was also pointed out that in the case of Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service, 2013 ACJ 2733, the Supreme Court awarded Page 6 of 11 C/FA/3894/2006 JUDGMENT similar amounts relying on the decision in the case of Rajesh (supra).
On the other hand, learned counsel for the appellant drew our attention to a decision of the Supreme Court in the case Minu Rout v. Satya Pradhymna Mohapatra, (2013) 10 SCC 695 in which a sum of Rs.50,000/- was awarded under conventional heads. He pointed out that this Court in the case of United India Insurance Co. Ltd v. Naynaben, wd/o Bharatkumar Bhalchandra Patel, in First Appeal No.481 of 2001 referring to the decision in the case of Minu Rout (supra) awarded a combined sum of Rs.50,000/- towards loss of consortium, loss of estate and funeral expenses.
In the case of Rajesh (supra), the Supreme Court advocated for increase in the amount of consortium being awarded in fatal cases. It was observed as under:
"17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistence on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Varma case, it was held that compensation for loss of consortium should be in the rage of Rs.5000 to Rs.10,000. In legal parlance, "consortium" is the Page 7 of 11 C/FA/3894/2006 JUDGMENT right of the spouse to the company,care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc. the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are if the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
In the said judgment, the Supreme Court awarded a sum of Rs.1 lac separately for loss of care guidance for the minor children. One may, however, notice that no separate amount was awarded for loss of estate. Later, in the case of Vimal Kanwar (supra), the Supreme Court once again awarded compensation in following manner:
"33. Having regard to the facts and evidence on record, we estimate the monthly income of the deceased Sajjan Singh at Rs.9,000 x 2 = Rs.18,000/- per month. From this his personal living expenses, which should be 1/3rd, there being three dependents has to be deducted. Thereby, the 'actual salary' will come to Rs.18,000 - Rs.6,000/- = Rs.12,000/- per month or Rs.12,000 x 12 =1,44,000/- per annum. As the deceased was 28 ½ years old at the time of death the multiplier of 17 is applied, which Page 8 of 11 C/FA/3894/2006 JUDGMENT is appropriate to the age of the deceased. The normal compensation would then work out to be Rs.1,44,000/- x 17 =Rs.24,48,000/- to which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of Rs. 1,00,000/-; loss of love and affection for the daughter Rs.2,00,000/-, loss of love and affection for the widow and the mother at Rs.1,00,000/- each i.e. Rs.2,00,000/- and funeral expenses of Rs.25,000/-."
Likewise, in the case of Sanabanu Nazirbhai Mirza (supra) also the Supreme Court awarded such amounts without separately awarding any compensation for loss of estate.
It is true that in the case of Minu Rout, a Division Bench of the Supreme Court confined the compensation under conventional heads to Rs.50,000/-. This Court has, as noted above, adopted such a modality in the case of United India Insurance Company v. Naynaben (supra).
It can thus be seen that the compensation to be awarded towards consortium and loss of love and affection to the children is not rigidly standardized. Nevertheless, the trend and the indications available from different decisions of the Supreme Court are in favour of increasing such compensation under conventional heads to keep in tune with the reducing purchasing power of the rupee as also bearing in mind the concept of sudden tragic and needless loss of life resulting into trauma and mental agony to the family members of the deceased. If it happens to be the wife, she would be deprived of life long love, affection and protection and companionship. The children at tender age would lose a parent Page 9 of 11 C/FA/3894/2006 JUDGMENT without whom their upbringing and parenting would indefinitely be incomplete. The judgments of the Supreme Court noted above, including one in the case of Minu Raut cited by the counsel for the appellant do suggest a break from the present trend of awarding rather conservative amounts towards consortium or loss of love and affection to the children.
In the facts of the present case, therefore, we adopt a sum of Rs.1 lac towards combined heads of loss of consortium and loss of live and affection to the children. No separate amount is being awarded to the loss of estate. This would be added by Rs.10,000/- towards funeral expenses. Thus, the total compensation payable to the claimants would work out to Rs.19,92,600 + Rs.1,10,000 = Rs.21,02,600/- rounded off to Rs.21,05,000/-. This would be in substitution of the direction of compensation of Rs.29,23,000/- awarded by the Claims Tribunal.
In the result, the appeal is partly allowed and the award of the Claims Tribunal is modified accordingly.
The Insurance Company as per the order dated 13.10.2006 passed in Civil Application No.3894 of 2006 was required to deposit the entire amount of compensation and proportionate cost and interest and 90% of which was to be invested in fixed deposits and 10% was to be disbursed in favour of the claimants.
The Claims Tribunal shall, out of the amount so deposited by Page 10 of 11 C/FA/3894/2006 JUDGMENT the Insurance Company, refund the differential amount of Rs.8,18,000/- along with simple interest at the rate of 7% per annum from the date of deposit till the actual return of the amount. The accident was of the year 1997. The family is educated. We would, therefore, not retain any further sum in fixed deposits. Rest of the amount may be released in favour of the claimants in the proportion set out by the Claims Tribunal in the impugned award.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) (vjn) Page 11 of 11