Gujarat High Court
Oriental Insurance Co Ltd vs Lekha Babu Kuttan Nair & 3 on 12 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2528/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2528 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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ORIENTAL INSURANCE CO LTD....Appellant(s)
Versus
LEKHA BABU KUTTAN NAIR & 3....Defendant(s)
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Appearance:
MR R G DWIVEDI, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 2 , 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 12/09/2017
ORAL JUDGMENT
1. Feeling aggrieved by and dissatisfied with the judgment and award dated 19.04.2014 passed by learned Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claim Petition No.299 of 1998, the appellant - Insurance Company Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Sep 16 16:13:24 IST 2017 C/FA/2528/2015 JUDGMENT preferred present appeal under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
2. Heard Mr.R.G.Dwivedi, learned counsel for the appellant - Insurance Company. Though served, no one appears for respondent Nos.1, 2 and 4. Respondent No.3 was deleted as per the order of this Court.
3. The following noteworthy facts, which emerge from the record of the appeal:-
3.1 That on 14.12.1997, when deceased V.R.Babu Nair, was going in his scooter being registration No.GUU 3730, at that time, one tempo bearing registration No.GJ-4-T-4663, which was driven by respondent No.3, came with full speed in rash and negligent manner and dashed with the scooter of the deceased and as a result, the deceased sustained grievous injuries all over the body. Thereafter, the deceased was taken to S.S.G Hospital, where he died on the next day i.e. on 15.12.1997. Therefore, the original claimants filed Claim petition before the learned Tribunal and claimed Rs.15,00,000/-, wherein the learned Tribunal awarded total compensation of Rs.10,89,200/-.
4. Learned counsel for the appellant - Insurance Company has raised the following contentions:-
(i) That the learned Tribunal has erred in assessing the income of the deceased at Rs.6,000/- per month in absence of any supportive evidence.
(ii) That the learned Tribunal has wrongly assessed the compensation under the head of future loss of income and has granted huge amount of Rs.10,24,200/-.
(iii) That the learned Tribunal has erred in not appreciating the oral as well as documentary evidence on record and has also Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Sep 16 16:13:24 IST 2017 C/FA/2528/2015 JUDGMENT awarded wrong multiplier.
(iv) That the learned Tribunal has also failed to appreciate the contents of FIR at Exh:24, which clearly establishes that the accident was occurred due to negligence of the driver of the scooter.
(v) That the learned Tribunal has also disregarded the panchnama of scene of accident at Exh:25 and has erred in coming to the conclusion that the driver of the tempo was more negligent than the driver of the scooter.
(vi) Considering the date of accident to be 14.12.1997, learned Tribunal has erred in awarding 9 % interest.
No other or further submissions are made by learned counsel for the parties.
5. It deserves to be noted that the matter was admitted by this Court (Coram : Hon'ble Mr.Justice S.G.Shah) vide order dated 02.02.2016 and the original claimants have been served. As the appeal is directed only against the quantum of compensation, respondent No.3 being the driver of the vehicle was ordered to be deleted.
6. As no one appeared for the respondents, this Court was left with no other option, but to proceed further after hearing learned counsel for the appellant.
7. Upon re-appreciation of the evidence on record, more particularly the evidence adduced at Exhs:19, 21 and 22, witness namely Alfonsis Vegas, who was examined at Exh:19 has stated in his examination-in-chief that the deceased was expertized in repairing of Air Conditioners and other electronics items and was working in A.C. Plant and was getting salary of Rs.6,000/- per month. However, in his cross- examination, the very witness has stated that he suffered loss Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Sep 16 16:13:24 IST 2017 C/FA/2528/2015 JUDGMENT in the business and his business is closed and he has not managed any account of the same. He has also admitted in his cross-examination that he does not have any material or collaborative evidence to establish that he used to pay on an average Rs.6,000/- to the deceased. Except the said piece of evidence, there is nothing on record to show that the deceased was earning of Rs.6,000/- per month. Even if deposition of one Harmanbhai Gohil at Exh:21 is considered and so also the oral evidence of witness Vasudev Pillai, the same does not even refer to the fact, which would lead and/or establish that the income of the deceased was Rs.6,000/- per month.
8. Upon re-appreciation of such evidence on record, in opinion of this Court, learned Tribunal has wrongly relied upon the same and assessed income to Rs.6,000/- per month. Oral deposition of none of the witness inspire any confidence and therefore, the claimants have not been able even remotely to prove that, the income of the deceased was Rs.6,000/- per month.
9. As observed hereinabove, upon re-appreciation of the oral evidence of the claimant at Exh:17 and the employer at Exh:19 crates a doubt about the same and it cannot be made the basis for determining that the income of the deceased was Rs.6,000/- per month. However, the fact remains that the accident has occurred and the liability of the Insurance Company is not denied. Upon re-appreciation of the evidence on record, income of the deceased deserves to be assessed at Rs.3,000/- per month, more particularly the considering the date of accident.
Considering the age of the deceased on the day of accident i.e. on 14.12.1997, as per the judgment of the Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121], multiplier of 16 has been rightly applied by learned Tribunal and therefore, the compensation under the head of future loss of income would be as under:-
Rs.3,000/- Income Per Month Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Sep 16 16:13:24 IST 2017 C/FA/2528/2015 JUDGMENT + Rs.1,500/- 50% Prospective income ________
- Rs.4,500/-
Rs.1,500/- (less 1/3) Deduction towards personal expenses ________ Rs.3,000 p.m. X 12 X 16 = Rs.5,76,000/- Other contentions raised by learned counsel for the appellant are meritless and upon re-appreciation of the evidence on record, learned Tribunal has correctly and rightly awarded the amount under the other heads and the same do not require any modification or alteration in the facts of the case.
10. In light of the aforesaid, the respondents claimants would be entitled to total compensation as under:-
(i) Rs.5,76,000/- Loss of future income
(ii) Rs.5,000/- Transportation
(iii)Rs.10,000/- Funeral expenses
(iv) Rs.50,000/- Consortium
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Rs.6,41,000/-
11. As Rs.10,89,200/- is already awarded by learned Tribunal, the learned Tribunal shall refund Rs.4,48,200/- to the Appellant - Insurance Company along with proportionate costs and interest at the rate 8% from the date of application till its realization.
For the foregoing, the appeal is partly allowed. Record and proceedings, if any, be transmitted back to the learned Tribunal forthwith. No order as to costs.
(R.M.CHHAYA, J.) Suchit Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Sep 16 16:13:24 IST 2017