Gujarat High Court
United India Ins.Co.Ltd vs Kalavatiben Keshavbhai @ Durlabhbhai ... on 11 February, 2014
Bench: M.R. Shah, R.P.Dholaria
C/FA/2404/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2404 of 2004
With
FIRST APPEAL NO. 2405 of 2004
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1. Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether their Lordships wish to see the fair copy of the No
judgment ?
4. Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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UNITED INDIA INS.CO.LTD.....Appellant(s)
Versus
KALAVATIBEN KESHAVBHAI @ DURLABHBHAI TANDEL & 4....Defendant(s)
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Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 4
MR NIRAV C THAKKAR, ADVOCATE for the Defendant(s) No. 1 3
RULE SERVED for the Defendant(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 11/02/2014
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As both these appeals arise out of the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Valsad [hereinafter referred to as "Tribunal"] and as such common Page 1 of 18 C/FA/2404/2004 JUDGMENT question of law and facts arise in both these appeals, they are decided and disposed of by this common judgment and order.
[2.0] Feeling aggrieved and dissatisfied with the impugned common judgment and award dated 24.09.2003 passed by the learned Tribunal in Motor Accident Claim Petition Nos.623/2002 and 624/2002, the common appellant herein - original opponent No.3 - United India Insurance Company Ltd. has preferred the present First Appeals under Section 173 of the Motor Vehicles Act, 1988 [hereinafter referred to as "Act"].
[3.0] Facts leading to the present First Appeals in nutshell are as under:
[3.1] That in a vehicular accident which took place on 09.02.1994, one Keshavbhai @ Durlabhbhai Damabhai Tandel and Diwaliben Keshavbhai @ Durlabhbhai Tandel died. That the deceased Keshavbhai and Diwaliben were coming from Urvada to Kosamba on motorcycle No.GJ 15D2442. That the said motorcycle was being driven by deceased Keshavbhai Tandel. At 5.30 hours, when they had come near Khadki Board, National Highway No.8, the said motorcycle dashed with Truck No.KA233648, which was driven by the original opponent No.1, which was as such ahead of the motorcycle. That due to the said accident, both the deceased were thrown off and they sustained serious injuries and thereafter both of them succumbed to injuries. That in connection with the said accident, an FIR was also lodged with the Pardi Police Station being CR No.32/1994. That thereafter heirs of the deceased - original claimants herein filed MACP No.623/2002 claiming compensation of Rs.30 lacs for the death of deceased Keshavbhai and MACP No.624/2002 claiming compensation of Rs.3 lacs for the death of deceased Diwaliben. It was the case on behalf of the claimants that the original opponent No.1 - driver of Truck No.KA233648 had come with Page 2 of 18 C/FA/2404/2004 JUDGMENT full speed and driven rashly so as to put the lives of other in danger and had dashed with the motorcycle. However, it was the case on behalf of the appellant - insurance company that the driver of the motorcycle No.GJ15D2442 was sole negligent - 100% negligent for the accident due to which Keshavbhai Tandel and Diwaliben Tandel died.
[3.2] That both the claim petitions were opposed by original opponent No.3 - appellant herein - insurance company by filing the written statement vide Exh.63 in MACP No.623/2002 and vide Exh.66 in MACP No.624/2002. That in the said reply it was denied that the accident had taken place due to the negligence of the driver of the truck. It was specifically the case on behalf of the opponent No.3 - insurance company that the accident had taken place due to negligence of the driver of motorcycle i.e. deceased Keshavbhai. Therefore, it was requested that the claim petitions against them shall be rejected/dismissed.
[3.3] That the learned Tribunal framed the issues at Exh.20 in MACP No.624/2002 and at Exh.21 in MACP No.623/2002. That both the parties led evidence, oral as well as documentary. On behalf of the claimants, Nitinkumar Keshavbhai @ Tandel - original claimant No.2 came to be examined at Exh.28. One Shri Atul Bhaskar Bhagat came to be examined at Exh.45. That the claimants produced and relied upon the following documentary evidences.
Sr. Document Exh. No. No. 1. Post Mortem Report of deceased Keshavbhai 49
2. Discharge Certificate/Seaman Identity Card of deceased 50 Keshavbhai 3. CDC of Librarian 51 Page 3 of 18 C/FA/2404/2004 JUDGMENT 4. FIR 52 5. Panchnama 53 6. Inquest Panchnama 54
7. Leaving Certificate of deceased Keshavbhai 55 8. Post Mortem Report 56 9. Driving Licence of respondent No.1 57 10. R.C. Book of Truck No.KA233648 58
11. Insurance Policy of Truck No.KA233648 59 No evidence was led / produced on behalf of the original opponents. That thereafter on appreciation of evidence and the panchnama of the place of accident, the learned Tribunal has held the driver of the truck - original opponent No.1 contributory negligent to the extent of 90% and driver of the motorcycle - deceased Keshavbhai contributory negligent to the extent of 10%. On appreciation of evidence and considering the income of the deceased Keshavbhai at the time of accident at Rs.20,000/ per month and deducting Rs.7000/ towards personal expenditure of the deceased Keshavbhai, the learned Tribunal has considered dependency at Rs.13,000/ per month and considering the age of the deceased - 50 years, applying the multiplier of 13, the learned Tribunal has awarded Rs.20,28,000/ under the head of future economic loss and further awarding Rs.10,000/ towards loss of estate, Rs.3000/ towards funeral expenses and Rs.500 towards damage to the motorcycle, has awarded compensation Rs.20,41,500/ and deducting Rs.2,04,150/ [as the driver of the motorcycle - Keshavbhai was held negligent to the extent of 10%] has awarded Rs.18,37,350/ in all towards compensation for the death of deceased Keshavbhai [MACP No.623/2002].
[3.4] That on appreciation of evidence the learned Tribunal has awarded a total sum of Rs.2,49,000/ to the claimants in MACP No.624/2002 towards the compensation for the death of Diwaliben.
Page 4 of 18C/FA/2404/2004 JUDGMENT [3.5] Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned Tribunal, the appellant herein - original opponent No.3 - insurance company has preferred the present First Appeals.
[4.0] Shri Nirav Thakkar, learned advocate appearing on behalf of the original claimants has raised preliminary objection with respect to the maintainability of the present appeals at the instance of the insurance company.
[4.1] Shri Thakkar, learned advocate appearing on behalf of the original claimants has vehemently submitted that in view of the bar under Section 149(2) of the Act and as no permission was granted by the learned Tribunal in favour of the insurance company under Section 170 of the Act to contest the claim petitions on all the grounds, the insurance company is not entitled to file the present appeals questioning the quantum of compensation in favour of the claimants as it has only limited defence available under section 149(2) of the Act. It is submitted that in absence of any permission granted by the learned Tribunal in favour of the insurance company under section 170 of the Act to contest the claim petition on all the grounds, the present appeals questioning the finding of the learned Tribunal with respect to contributory negligence as well as the quantum of compensation awarded by the learned Tribunal, present appeals at the instance of insurance company are not maintainable. In support of his submissions, he has heavily relied upon the following decisions of the Hon'ble Supreme Court.
1. (2002)7 SCC 456 National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi & Ors.
2. (2013)8 SCC 389 Rekha Jain v. National Insurance Company Limited & Ors.
Page 5 of 18 C/FA/2404/2004 JUDGMENT
3. (2013)9 SCC 55
Rajesh & Ors. v. Rajbir Singh & Ors.
4. (2014)1 SCC 680
United India Insurance Company Limited v. Sunil Kumar & Anr.
[4.2] On the aforesaid preliminary objection, Shri Nanavati, learned advocate appearing on behalf of the insurance company has relied upon the recent decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Shila Datta reported in AIR 2012 SC 86 [Para 11].
[4.3] It is submitted by Shri Nanavati, learned advocate appearing on behalf of the appellant insurance company that in the present case as the insurance company was already impleaded as a party by the claimants themselves in the claim petitions voluntarily, the bar or restriction under section 149(2) of the Act would not be applicable. It is submitted that as such in the case of Shila Datta (Supra), 3 Judges of the Hon'ble Supreme Court did not agree with the earlier decision of the Hon'ble Supreme Court in the case of Nicolletta Rohtagi (Supra) and more particularly points 3 to 5 and the matter has been referred to the larger Bench qua the said point Nos.3 to 5 only. It is submitted that however, so far as in the case where the insurance company was impleaded as a party respondent by the claimants in the claim petition voluntarily, there is a specific finding given by the Hon'ble Supreme Court in the case of Shila Datta (Supra) that the bar and/or restriction under section 149(2) of the Act would not be applicable and the insurance company can raise all the contentions that are available to reassess the claim petition. It is submitted that as such the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra) is by a Bench consisting of 3 Judges. It is further submitted by Shri Nanavati, learned advocate appearing on behalf of the insurance company that what was referred to the larger Page 6 of 18 C/FA/2404/2004 JUDGMENT Bench by the Hon'ble Supreme Court in the case of Shila Datta (Supra) is with respect to rights of insurer as well as appellant when he is merely a noticee under section 149(2) of the Act and not a party to the equal proceedings. It is submitted that however when the insurance company is already impleaded as a party respondent in the claim petition voluntarily, there is a specific finding given by the Hon'ble Supreme Court in the said decision and the said issue is now not res integra.
[4.4] Even with the aforesaid judgment in the case of Shila Datta (Supra), Shri Thakkar, learned advocate appearing on behalf of the claimants has tried to distinguish the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra) by submitting that in the present case, initially the claimants did not join the insurance company as party respondent however, subsequently, by way of amendment and as and when the particulars with respect to the policy of the insurance company was available, the insurer - insurance company was impleaded as a party. Therefore, according to Shri Thakkar, learned advocate appearing on behalf of the claimants, the decision of Hon'ble Supreme Court in the case of Shila Datta (Supra) would not be applicable to the facts of the present case.
[5.0] On merits of First Appeal No.2404/2004 arising out of MACP No.623/2002 by which the learned Tribunal has held the driver of the motorcycle - deceased Keshavbhai negligent to the extent of 10% and consequently has awarded a total sum of Rs.18,37,350/ is concerned, Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company has vehemently submitted that the learned Tribunal has materially erred in holding the deceased driver of the motorcycle negligent to the extent of 10% only.
[5.1] It is submitted that as such the accident occurred while the Page 7 of 18 C/FA/2404/2004 JUDGMENT deceased was trying to overtake the truck bearing No.KA233648 and in the process of overtaking the truck, the motorcyclist (deceased) dashed against the rear wheel of the truck which resulted into fatal accident to the persons traveling on the motorcycle.
[5.2] It is further submitted that the learned Tribunal has materially erred in awarding the future economic loss considering the dependency at Rs.13,000/ per month i.e. Rs.1,56,000/ per annum. It is further submitted that the learned Tribunal has materially erred in applying multiplier of 13. It is further submitted by Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company that as such the learned Tribunal ought to have held the deceased Keshavbhai - driver of the motorcycle negligent at least to the extent of 50%.
[5.3] It is further submitted by Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company that the learned Tribunal has materially erred in computing the prospective income of the deceased and coming to the conclusion that deceased was serving as Seaman in AngloEastern Shipping Management Limited. It is submitted that as such Nitinbhai, son of the deceased, who has been examined at Exh.33 has specifically admitted that he has no documentary evidence to show the income of his father. It is further submitted that the learned Tribunal has materially erred in accepting the testimony of Shri Atul Bhaskar Bhagat, who came to be examined at Exh.45. It is submitted that as such the finding recorded by the learned Tribunal that the basic pay of the deceased should be $ 400 per month is not supported by any documentary evidence. It is submitted that therefore the learned Tribunal has materially erred in coming to the conclusion that the monthly prospective income of the deceased would be Rs.20,000/.
Page 8 of 18C/FA/2404/2004 JUDGMENT [5.4] Now, so far as the First Appeal No.2405/2004 arising out of MACP No.624/2002 is concerned, Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company has made only one submission that the learned Tribunal has materially erred in holding the deceased Keshavbhai - driver of the motorcycle negligent to the extent of 10% only. It is submitted that in the facts and circumstances of the case, the learned Tribunal ought to have held the driver of the motorcycle - deceased Keshavbhai - husband of the deceased Diwaliben negligent at least to the extent of 50%. It is submitted that therefore the learned Tribunal ought to have deducted 50% from the amount of Rs.2,49,000/ and thereby ought not to have granted more than Rs.1,24,500/.
Making above submissions it is requested to allow both the first appeals.
[6.0] Both these first appeals are opposed by Shri Nirav Thakkar, learned advocate appearing on behalf of the original claimants. It is submitted by Shri Thakkar, learned advocate appearing on behalf of the original claimants that as such the learned Tribunal has not committed any error and/or illegality in holding the driver of the motorcycle deceased Keshavbhai negligent to the extent of 10%. It is submitted that the finding arrived at by the learned Tribunal holding the driver of the motorcycle deceased Keshavbhai negligent to the extent of 10% is on appreciation of evidence on record more particularly FIR, panchnama of place of accident/incident.
[6.1] It is submitted by Shri Thakkar, learned advocate appearing on behalf of the original claimants that the learned Tribunal has rightly considered the income of the deceased at Rs.20,000/ per month and has rightly considered the loss of dependency at Rs.13,000/ per month i.e. Rs.1,56,000/ per annum and consequently has rightly awarded a Page 9 of 18 C/FA/2404/2004 JUDGMENT total sum of Rs.18,37,350/ for the death of deceased Keshavbhai.
[6.2] It is further submitted that so far as the First Appeal No.2405/2004 arising out of MACP No.624/2002 is concerned, it is submitted that the deceased Diwaliben was the pillion rider and therefore, it would be a case of composite negligence and therefore, the learned Tribunal has rightly held all the opponents inclusive of the appellant liable to pay the compensation of Rs.2,49,000/ with 9% interest per annum thereon.
Making above submissions it is requested to dismiss both the first appeals.
[7.0] Heard learned advocate appearing on behalf of respective parties at length. Perused the impugned judgment and award passed by the learned Tribunal and have appreciated / reappreciated the entire evidence on record.
Preliminary Objection raised in both the First Appeals [8.0] Shri Thakkar, learned advocate appearing on behalf of the original claimants has raised a preliminary objection with respect to the maintainability of present appeals at the instance of the appellant - insurance company. It is the case on behalf of the original claimants that in view of bar under Section 149(2) of the Act and as no permission was granted by the learned Tribunal in favour of the insurance company under Section 170 of the Act to contest the claim petition on all the grounds, the insurance company is not entitled to file the present appeals questioning the quantum of compensation in favour of the claimants as it has only limited defence available under section 149(2) of the Act. It is submitted that in absence of any permission granted by the learned Tribunal in favour of the insurance company under section 170 of the Act to contest the claim petition on all the grounds, the Page 10 of 18 C/FA/2404/2004 JUDGMENT present appeals questioning the finding of the learned Tribunal with respect to contributory negligence as well as the quantum of compensation awarded by the learned Tribunal, present appeals at the instance of insurance company are not maintainable. In support of his submissions, he has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Nicolletta Rohtagi and Ors. (Supra), Rekha Jain (Supra) and Rajesh & Others (Supra).
[8.1] On the other hand, Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company has heavily relied upon the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Shila Datta & Ors. reported in AIR 2012 Supreme Court 86.
Therefore, the short question which is posed for consideration of this Court is whether the present first appeals at the instance of the insurance company, in absence of any order passed by the learned Tribunal under Section 170 of the Act granting permission to the insurance company to contest the claim petition on all the grounds, are maintainable or not?
[8.2] At the outset it is required to be noted that as such the aforesaid issue is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra). In the case of Shila Datta (Supra), the Hon'ble Supreme Court has specifically observed and held that when the insurer is a party respondent in the claim petition, either on account of being impleaded as a party by the Tribunal under Section 170 or being impleaded as a party respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under Section 149(2) of the Act. While holding so in paragraphs 7 to 11 the Hon'ble Supreme Court has observed and held as under:
Page 11 of 18C/FA/2404/2004 JUDGMENT "7. The scheme of the Motor Vehicles Act, 1988 as contained in Chapters XI (Insurance of Motor Vehicles against Third Party risks) and XII (Claim Tribunals) proceeds on the basis that an insurer need not be impleaded as a party to the claim proceedings and it should only be issued a statutory notice under section 149(2) of the Act so that it can be made liable to pay the compensation awarded by the tribunal and also resist the claim on any one of the grounds mentioned in clauses (a) and (b) of subsection (2) of section 149. Subsections (1), (2) and (7) of section 149 clearly refer to the insurer being merely a noticee and not a party. Similarly, sections 158(6), 166(4), 168(1) and 170 clearly provide for and contemplate insurer being merely a noticee for the purposes mentioned in the Act and not being a party respondent. Section 170 specifically refers to impleading of insurer as a party to the claim proceedings.
8. When an insurer is impleaded as a party respondent to the claim petition, as contrasted from merely being a noticee under section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). But if he is a party respondent, it can raise, not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. It therefore follows that if a claimant impleads the insurer as a partyrespondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it.
9. The Act does not require the claimants to implead the insurer as a party respondent. But if the claimants choose to implead the insurer as a party, not being a noticee under section 149(2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in section 149(2) of the Act. If the insurer is already a respondent (having been impleaded as a party respondent), it need not seek the permission of the Tribunal under section 170 of the Act to raise grounds other than those mentioned in section 149(2) of the Act. The entire scheme and structure of Chapters XI and XII is that the claimant files a claim petition only against the owner and driver and the tribunal issues notice to the insurer under section 149(2) so that it can be made liable to pay the amount awarded against the insurer and if necessary, deny liability under the policy of insurance, on any of the grounds mentioned in section 149(2). If an insurer is only a noticee and not a party respondent, having regard to the decision in Nicolletta Rohtagi, it can defend the claim only on the grounds mentioned in section 149(2) and not any of the other grounds relating to merits available to the insuredrespondent. This is the position even where the claim proceedings are initiated suo moto under sections 149(7) and 158(6) of the Act, without any formal application by the Page 12 of 18 C/FA/2404/2004 JUDGMENT claimants, as the insurer is only a noticee under section 149(2) of the Act.
10. Section 170 of the Act does not contemplate an insurer making an application for impleadment. Nor does it contemplate the insurer, if he is already impleaded as a party respondent by the claimants, making any application seeking permission to contest the matter on merits. Section 170 proceeds on the assumption that a claim petition is filed by the claimants, or is registered suo moto by the tribunal, with only the owner and driver of the vehicle as the respondents. It also proceeds on the basis that in such a proceeding, a statutory notice would have been issued by the tribunal to the insurer so that the insurer may know about its future liability in the claim petition and also resist the claim, on any of the grounds mentioned in section 149(2). Section 170 of the Act also assumes that the tribunal will hold an inquiry into the claim, where only the claimants and the owner and driver will be the parties. Section 170 provides that if during the course of such inquiry, the tribunal finds and satisfies itself that there is any collusion between the claimant and the owner/driver or where the owner/driver has failed to contest the claim, the tribunal may suo moto, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of the claim, who was till then only a notice, shall be treated as a party to the proceedings. The insurer so impleaded, without prejudice to the provisions of section 149(2), will have the right to contest the claim on all or any of the grounds that are available to the driver/owner.
11. Therefore, where the insurer is a party respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a partyrespondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a partyrespondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a partyrespondent. But it can however be made a party respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a partyrespondent, it can raise all contentions that are available to resist the claim.
Page 13 of 18C/FA/2404/2004 JUDGMENT [8.3] In the present case admittedly the claimants themselves have impleaded the appellant - insurance company as party respondent to the claim petition may be by subsequent Amendment. Under the circumstances, considering the aforesaid decision of the Hon'ble Supreme Court, the insurance company can raise all contentions that are available to resist the claim, without any order/permission granted by the Tribunal under Section 170 of the Act and therefore, the present appeals at the instance of the appellant insurance company are maintainable.
[8.4] Now, so far as the decision of the Hon'ble Supreme Court in the case of Nicolletta Rohtagi & Ors. (Supra) relied upon by the learned advocate appearing on behalf of the original claimants is concerned, it is required to be noted that the said decision came to be considered by the Hon'ble Supreme Court in the case of Shila Datta (Supra) and only thereafter the aforesaid view has been taken by the Hon'ble Supreme Court.
[8.5] Now, so far as the reliance placed by the learned advocate appearing on behalf of the original claimants upon the decision of the Hon'ble Supreme Court in the case of Rekha Jain (Supra) is concerned, at the outset it is required to be noted that in the aforesaid decision the Hon'ble Supreme Court had no occasion to consider the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra). Even in the said decision as such no contrary decision is taken by the Hon'ble Supreme Court to that of the decision in the case of Shila Datta (Supra). Even otherwise the decision of the Hon'ble Supreme Court in the case of Rekha Jain (Supra) is by a two Judges Bench and the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra) is of a Larger Bench, which is binding to this Court.
Page 14 of 18C/FA/2404/2004 JUDGMENT [8.6] Now, so far as the reliance placed by learned advocate appearing on behalf of the original claimants upon the decision of the Hon'ble Supreme Court in the case of Sunil Kumar & Anr. (Supra) is concerned, it is required to be noted that in the said case the insurance company - insurer was not a party to the claim proceedings and as such the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra) so far as the issue involved is concerned, the same has been confirmed and the matter has been referred to Larger Bench on other grounds/questions. Therefore, considering the decision of the Hon'ble Supreme Court in the case of Shila Datta (Supra) and the facts of the case on hand, more particularly, when the insurer - appellant herein was impleaded as party respondent to the claim petition by the claimants themselves, it is to be held that the appellant - insurance company - insurer can contest the claim petition on all the grounds even in absence of any permission granted by the learned Tribunal under Section 170 of the Act. Under the circumstances, the preliminary objection raised by Shri Thakkar, learned advocate appearing on behalf of the original claimants is answered accordingly and held against the original claimants and in favour of the insurer and it is held that the present appeals at the instance of the insurer - appellant insurance company questioning the finding on contributory negligence as well as on quantum are maintainable.
[9.0] Now, so far as the finding recorded by the learned Tribunal with respect to contributory negligence and holding the deceased Keshavbhai
- driver of the motorcycle negligent to the extent of 10% only and driver of the offending truck negligent to the extent of 90% is concerned, considering the documentary evidences on record more particularly FIR, panchnama of place of accident etc., it appears that the learned Tribunal has committed grave error in holding the deceased Keshavbhai - driver of the motorcycle contributory negligent to the extent of 10% only. It is required to be noted that as such the deceased Keshavbhai - the driver Page 15 of 18 C/FA/2404/2004 JUDGMENT of the motorcycle was overtaking the truck and while overtaking the truck, the motorcycle dashed with the right front portion of the truck and the motorcycle came under the rear wheel / right side of the truck. It is required to be noted that the truck was ahead of the motorcycle and it was the deceased motorcycle driver who was overtaking the truck and it dashed with the front right side of the truck. Considering the aforesaid facts and circumstances, the learned Tribunal ought to have held the deceased Keshavbhai - driver of the motorcycle contributory negligent atleast to the extent of 50%. Under the circumstances, the impugned judgment and award passed by the learned Tribunal holding the driver of the motorcycle deceased Keshavbhai negligent to the extent of 10% deserves to be quashed and set aside and is required to be modified to the aforesaid extent.
[9.1] Now, so far as the First Appeal No.2404/2004 arising out of MACP No.623/2002 on quantum is concerned, considering the evidence on record, we are of the opinion that the learned Tribunal has not committed any error and/or illegality in considering the loss of dependency at Rs.13,000/ per month and Rs.1,56,000/ per annum. Considering the income of the deceased Kehavbhai at Rs.20,000/ per month and deducting 1/3rd towards personal expenditure of the deceased Keshavbhai, the learned Tribunal has rightly considered the monthly dependency of the deceased at Rs.13,000/. Looking to the age of the deceased Keshavbhai i.e. 50 years and considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009)6 SCC 126, the learned Tribunal has rightly applied the multiplier of 13.
[9.2] Now, so far as First Appeal No.2405/2004 arising out of MACP No.624/2002 and the contention on behalf of the appellant - insurance company that driver of the motorcycle - deceased Keshavbhai is required Page 16 of 18 C/FA/2404/2004 JUDGMENT to be held contributory negligent to the extent of 50%, the amount of compensation required to be paid to the original claimants of MACP No.624/2002 is required to be deducted by 50% is concerned, the same cannot be accepted. It is required to be noted that deceased Diwaliben, for whose death MACP No.624/2002 has been preferred, was a pillion rider and therefore in her case it would be a case of composite negligence and therefore, even if the driver of the motorcycle - deceased Keshavbhai is held negligent to the extent of 50%, the claimants of MACP No.624/2002 shall be entitled to the compensation without any deduction [on the grounds of towards contributory negligence of the driver of the motorcycle] as it would be a case of composite negligence.
[10.0]In view of the above and for the reasons stated above, First Appeal No.2404/2004 arising out of MACP No.623/2002 is hereby partly allowed and deceased Keshavbhai - driver of the motorcycle No. GJ 15D2442 is held contributory negligent to the extent of 50% instead of 10% as held by the learned Tribunal. Consequently, it is held that the claimants of MACP No.624/2002 shall be entitled to Rs.20,41,500/ towards the compensation for the death of deceased Keshavbhai. However, as the deceased Keshavbhai - driver of the motorcycle is held contributory negligent to the extent of 50%, the claimants of MACP No.623/2002 shall be entitled to Rs.10,20,750/ [being 50% of Rs.20,41,500/] with 9% interest per annum from the date of filing of the claim petition till realization. Consequently, First Appeal No.2404/2004 is hereby partly allowed to the aforesaid extent and the impugned judgment and award dated 24.09.2003 passed by the learned Tribunal is hereby modified to the aforesaid extent. Consequently, any amount deposited/paid by the insurance company in excess of the above, the insurance company shall be entitled to recover/get back the same either from the amount deposited in the fixed deposits, if any and/or from the original claimants. In the facts and circumstances of the Page 17 of 18 C/FA/2404/2004 JUDGMENT case, there shall be no order as to costs.
[10.1]In view of the above and for the reasons stated above, First Appeal No.2405/2004 is hereby dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) Ajay Page 18 of 18