Gujarat High Court
Reliance General Insurance Co. Ltd. vs Mamtaben Pratapbhai Khuman on 1 August, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/FA/2167/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2167 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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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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RELIANCE GENERAL INSURANCE CO. LTD.
Versus
MAMTABEN PRATAPBHAI KHUMAN
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Appearance:
MR RATHIN P RAVAL(5013) for the PETITIONER(s) No. 1
MR R.K.MANSURI(3205) for the RESPONDENT(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 01/08/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This Appeal is filed by the Insurance company challenging the judgement and award dated 07.03.2018 passed by the Motor Page 1 of 5 C/FA/2167/2018 JUDGMENT Accident Claims Tribunal, Amreli.
2. Brief facts are that on 24.04.2015 one Pratapbhai Khuman was going from village Choki to Jetpur at about 10:45 in the morning. At village Jetalasar, his car met with an accident and collided head on with a dumper coming from opposite direction causing instantaneous death of the driver of the car. His dependents i.e. his widow, minor children and aged parent filed a claim petition seeking compensation of Rs. 46 lacs from the owner and insurer of the dumper involved in the accident. Virtually undisputed facts which were brought on record before the Tribunal were that the deceased was aged about 36 years. He was an employee of the State Government serving in the State Reserve Police Force. At the time of accident, he was drawing the salary in the pay scale of Rs. 5200-20200 with pay band of 8280 and grade pay of Rs. 1800.
3. The Claims Tribunal computed the loss of dependency benefits on the basis of the documentary evidence produced by the claimants which included the pay slip of the deceased. After ascertaining the current income of the deceased, the Claims Tribunal applied the principles for granting rise for the future income, deduction for the personal expenditure and the multiplier according to the age of the deceased. The Tribunal also followed the judgement of Supreme Court in case of National Insurance Company Limited v. Pranay Sethi & Page 2 of 5 C/FA/2167/2018 JUDGMENT others- (2017) 6 SCC 680 and awarded a total of Rs. 70,000/- under conventional heads. With respect to such computation, the insurance company could not have raised any serious dispute. Faintly it was argued before us that the claimant had received approximately Rs. 20,000/- by way of provident fund and other benefits given by the employer. Such amount should have been adjusted against the compensation computed by the Claims Tribunal. This contention is to be recorded only for rejection. By way of series of judgments, it is by now well settled that adjustment or reduction of any amount received by the family of the deceased cannot be made if such payments are independent of the death of the deceased. The provident fund principally comprises of the contribution of the employee which in the nature of his savings to be availed of at later point of time typically after retirement. In some cases, part of the provident fund may also comprise of the employer's contribution, if there is no pension scheme. Even this component has nothing to do with the death of the deceased due to accident or otherwise. It would be payable upon retirement or death irrespective of the fact whether the death is accidental or otherwise.
4. The main dispute raised by the insurance company before us was with respect to the negligence. The Claims Tribunal held that the driver of the dumper was solely negligent in causing the accident. In the process, the Tribunal also, in our view, incorrectly recorded that the driver of the dumper was not Page 3 of 5 C/FA/2167/2018 JUDGMENT examined. Despite such error, the question is, did the Claims Tribunal make a mistake in ultimate conclusion regarding negligence which requires to be corrected? For the reasons to follow, we do not think so. The claimants had examined the widow of the deceased who deposed that the accident occurred when the deceased was coming from village Choki to Jetpur in his Maruti car. According to her, the deceased was driving the car at moderate speed on correct side of the road. It was a driver of the dumper who came on the wrong side and in excessive speed causing the accident. We notice that FIR was lodged against the driver of the dumper. The police also filed charge-sheet against him. The evidence on record further establishes that the road, though otherwise a four lane road, part of the road was under repair and this required the driver of the dumper to travel on the wrong side, contrary to what the Claims Tribunal has recorded. Driver of the dumper was examined at Exh 64. In his deposition, he claimed that he was driving carefully. Driver of the Maruti car was talking on the phone which caused the accident. However, in his deposition he made a few significant revelations. Firstly, in the cross- examination, he admitted that the version that the driver of the Maruti car was talking on the phone was stated by him for the first time before the Court. Secondly, he stated that because of the accident, his dumper overturned due to which, soon after the accident, he lost consciousness. He also stated that the car had been crushed under his dumper.
Page 4 of 5C/FA/2167/2018 JUDGMENT
5. From such evidence on record, it clearly emerges that the dumper had gone on the wrong side of the road, of course, on account of repairs going on the other side. Nevertheless, under such circumstances and also being in charge of a heavier vehicle, it was the duty of the driver of the dumper to be extra careful to avoid any accident. The very fact, that the dumper overturned, would necessarily show that he must have been at great speed. His explanation that because of impact with the Maruti car, his dumper overturned is simply not possible to believe. His version that the driver of the car was talking on the phone surfaced for the first time before the Court. The fact that upon investigation the police agencies filed charge-sheet against him during which also, no such version was stated by him is significant. In the result, we have no hesitation in confirming the view of the Tribunal however, for slightly different reasons.
6. In the result, First Appeal along with Civil Application is dismissed.
(AKIL KURESHI, J) (B.N. KARIA, J) JYOTI V. JANI Page 5 of 5