Gujarat High Court
United India Insurance Company Ltd vs Father George Netikkat Cmi & 2 on 5 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/833/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 833 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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UNITED INDIA INSURANCE COMPANY LTD....Appellant(s)
Versus
FATHER GEORGE NETIKKAT CMI & 2....Defendant(s)
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Appearance:
MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 3
MR PRATIK Y JASANI, ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 05/09/2017
ORAL JUDGMENT
1. Heard Mr. Maulik J. Shelat, learned advocate for the appellant and Mr. Pratik Y. Jasani, learned advocate for respondent nos.1 and 2.
2. Being aggrieved by and feeling dissatisfied Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Sep 10 03:57:25 IST 2017 C/FA/833/2015 JUDGMENT with the judgment and award dated 20.1.2015 rendered by MACT (Aux.), Rajkot in MACP no.786 of 2004, the present appeal is filed by the insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
3. Record indicates that the accident occurred on 11.4.2004, wherein the deceased who was a father belonging to the Christian sect was driving his motorcycle bearing registration no.GJ12 5548, near Sural Bhit Cross Roads, Bhuj. Record indicates that at that juncture, the jeep driven by the driver dashed with the motorcycle driven by the deceased because of which, the deceased sustained fatal injuries and ultimately, succumbed to the same. The respondents no.1 and 2 filed the appeal under Section 166 of the Act and claimed compensation to the tune of Rs.15 lacs.
4. Record indicates that the respondent no.2 is the biological father and respondent no.1 is the priest of the Christian region and both had preferred this appeal as the deceased had renounced the world.
5. As such the record and proceedings indicates that by document at Exh.10, liability itself was denied by the insurance Company and ultimately, the Tribunal framed issues at Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Sep 10 03:57:25 IST 2017 C/FA/833/2015 JUDGMENT Exh.27 and on the basis of the oral deposition of the father of the Christian religion- respondent no.1 herein at Exh.29 and other documentary evidences such as FIR at Exh.44 and Panchnama of the scene of accident at Exh.45, the Tribunal construed that the deceased had income of Rs.7,000/ per month and thereby, awarded a sum of Rs.6,30,000/ under the head of loss of dependency and Rs.20,000/ under the conventional head and Rs.5,000/ towards funeral expenses and thus, the Tribunal awarded a total compensation of Rs.6,55,000/ with 9% interest per annum. The present appeal is directed against the said judgment and award by the insurance Company.
6. Mr. Maulik Shelat, learned advocate for the appellant has contended as under: 6.1 That, the original claimants have not adduced any evidence as far as income of the deceased is concerned, except in oral evidence, it has come on record that the deceased was paid honorarium to the tune of Rs.15,000/ per month. It is submitted that in absence of any evidence, the Tribunal has wrongly believed the income of the deceased was Rs.7,000/ per month. It is contended that considering the date of accident to be 11.4.2004, the notional income in absence of any evidence whatsoever Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Sep 10 03:57:25 IST 2017 C/FA/833/2015 JUDGMENT cannot be assessed more than Rs.3,000/ per month.
6.2 It is further contended that as such the deceased has renounced the world and therefore, there is no loss of dependency as far as respondent no.2 - biological father is concerned. Still however, the Tribunal has considered the aspect of loss of dependency. It is further contended that the biological father has not been examined. Still however, the Tribunal has passed the huge award of Rs.6,55,000/ in favour of the respondent no.2 the biological father who was not dependent upon the deceased. Relying upon the judgment in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, it is contended that the respondents are not entitled for any compensation under the head of loss of dependency.
6.3 It is also contended that the Tribunal has wrongly awarded interest at the rate of 9% per annum considering the date of accident being 11.4.2004. It should be maximum 7.5% per annum or 6% per annum.
7. Per contra, Mr. Pratik Jasani, learned advocate for respondent nos.1 and 2 original claimants has supported the impugned judgment and award.
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C/FA/833/2015 JUDGMENT
It is contended that in the deposition of the respondent no.1 who is the head of Christian Religion has stated on oath that the deceased was getting an honorarium of Rs.15,000/ per month, for which, Mr. Jasani has relied upon the deposition at Exh.29. It is further contended that it is true that the deceased has renounced the world, however, he used to take care of his biological father and biological father was totally dependent on the earnings of the deceased. It is further contended that on the contrary, meager amount of Rs.25,000/ is awarded under the conventional head which should be appropriately enhanced in the interest of justice. It is therefore submitted that the appeal is meritless and the same deserves to be dismissed.
8. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
9. I have perused the original record and proceedings. It is no doubt true that the evidence on record clearly establishes that the deceased had renounced the world, however, as rightly pointed out by Mr. Jasani that biological father remains the biological father even though the son had renounced the world and the fact remains that the claim petition was Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Sep 10 03:57:25 IST 2017 C/FA/833/2015 JUDGMENT preferred jointly by the biological father himself and the award is passed by the Tribunal in favour of the biological father alone. Only because the son renounced the world, there is nothing on record to show and on the contrary, the appellant has not put respondent no.1 who was examined at Exh.29 to test whether respondent no.2 was dependent of the deceased or not. Relations of father and son remains intact even if the son renounced the world and in case of claim, the biological father can maintain a claim petition and therefore, the Tribunal has rightly believed that respondent no.2 was dependent on the deceased and therefore, the contention raised by Mr. Shelat that the respondents-claimants are not entitled to any compensation under the head of loss of dependency deserves to be negatived.
10. Considering the submissions made and upon reappreciation of the evidence on record and more particularly, oral deposition of respondent no.1 on the aspect of honorarium is concerned, except bare words, the same is not supported by any other or further evidence. Upon reappreciation of the evidence as a whole, it is an admitted position that the respondents have not been able to prove the income of the deceased and therefore, in opinion of this Court, the income assessed at Rs.7,000/ per Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Sep 10 03:57:25 IST 2017 C/FA/833/2015 JUDGMENT month by the Tribunal is erroneous and on a higher side. Considering the fact that the accident occurred on 11.4.2004, in opinion of this Court and upon reappreciation of the evidence on record, it can be safely assessed at Rs.3,000/ per month. By adding 50% as prospective income, gross income would come to Rs.4,500/ per month. As the deceased was a bachelor, following the judgment in the case of Sarla Verma (supra), an amount of Rs.2,250/ is required to be deducted towards personal expenses and therefore, the income would come to Rs.2,250/ per month and accordingly, yearly income would come to Rs.27,000/. Considering the age of the deceased, the Tribunal has awarded 15 multiplier and applying the same multiplier under the head of loss of dependency, it would come to Rs.4,05,000/.
11. Upon reappreciation of the evidence on record and following the binding decision of this Court as well as the Apex Court and also considering the date of accident, the amount awarded under the conventional head as well as funeral expenses is little less and the same deserves to be appropriately enhanced and instead of Rs.25,000/, the respondents would be entitled to Rs.75,000/ under the conventional head including funeral expenses.
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12. In light of the aforesaid observations and findings, the respondents - claimants would be entitled to total compensation as under: Compensation for loss of Rs.4,05,000/ dependency Compensation for Rs.75,000/ conventional head including funeral expenses TOTAL Rs.4,80,000/
13. As the Tribunal has awarded Rs.6,55,000/, the appellant insurance Company would be entitled to refund of Rs.1,75,000/ along with proportionate costs and interest. The Tribunal shall refund an amount of Rs.1,75,000/ along with proportionate cost and interest to the insurance Company forthwith from FDR lying with the Tribunal. The appeal is thus partly allowed. Record and proceedings be transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J.) mrp Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Sep 10 03:57:25 IST 2017