Gujarat High Court
Cholamandalam Ms General Insurance Co ... vs Rathod Jagatsinh Nansinh on 10 July, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1089/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1089 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
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CHOLAMANDALAM MS GENERAL INSURANCE CO LTD. CHENNAI
Versus
RATHOD JAGATSINH NANSINH
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Appearance:
MR VIBHUTI NANAVATI(513) for the PETITIONER(s) No. 1
MR R.K.MANSURI(3205) for the RESPONDENT(s) No. 2,3,4,5
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 10/07/2018
ORAL ORDER
1. By this appeal under section 173 of the Motor Vehicles Act, the appellant has challenged the judgment and award dated 06.11.2017 passed by the Motor Accident Claims Tribunal (Main), Mahesana in MACP No. 244/12.
2. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. R.K. Mansuri, learned advocate for respondents no.2 to 5. Though served, no one appears for respondent no.1.
3. Mr. Nanavati submitted that the appeal is directed against the quantum of the award and therefore, the presence of driverowner of of the rickshaw, impeding vehicle, is not necessary for deciding the present appeal.
4. The learned counsel for the appellant has Page 1 of 9 C/FA/1089/2018 ORDER provided the copies of the relevant evidence, which was adduced before the Tribunal and at the joint request of both the learned counsels, the appeal was taken up for final disposal.
5. The facts which can be culled out from the record of the appeal are as under 5.1 That deceased Gopalsinh was travelling in rickshaw bearing RTO registration No. GJ2TT 4498 on 28.01.2012 and while he was going towards his village from Asevada and was passing from MahesanaVijapur highway, because of rash and negligent driving on the part of the driver of the rickshaw, the rickshaw turned turtle because of which the deceased sustained fatal injuries.
5.2 The record indicates that the FIR was lodged and panchnama of the place of incident and inquest panchnama was prepared and even the post mortem was done. The opponents claimants herein preferred claim petition under section 166 of the Act and claimed Rs.10,00,000/. The Tribunal, by the impugned judgment and award dated 06.11.2017 awarded Rs. 8,33,400/. Being aggrieved by the same, the present appeal is preferred by the insurance company.
6. Mr. Nanavati, learned counsel appearing for the appellant has contended as under Page 2 of 9 C/FA/1089/2018 ORDER
1) That the Tribunal has erred in considering Rs. 4000/ per month as income.
2) Mr. Nanavati contended that the Tribunal has committed error in giving 30% as prospective income.
3) Relying upon the judgment of the Apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi and Ors. reported (2017) 16 SCC 680, Mr. Nanavati contended that the Tribunal has wrongly awarded Rs. 1 lakh under the head of loss of consortium and Rs.25,000/ as funeral expenses. It was also contended that the award of Rs. 1,00,000/ under the head of loss of love and affection is also erroneous.
4) Mr. Nanavati, relying upon the judgment of Apex Court in Pranay Sethi (supra) contended that the opponentsclaimants would however be entitled to Rs.15,000/ under the head of loss of estate and submitted that under the conventional heads, the claimants would be entitled to total amount of Rs.70,000/ only.
5) It was also contended by Mr. Nanavati that the Tribunal has committed an error in awarding 9% interest even though the date of the accident is 28.01.2012.
Page 3 of 9 C/FA/1089/2018 ORDER7. Per contra Mr. R.K. Mansuri, learned advocate has supported the impugned award and has submitted that the judgment of Pranay Sethi (supra) would not be applicable to instant case and the Tribunal has committed no error in awarding Rs.1,00,000/under the head of loss of consortium and compensation for loss of love and affection and Rs.25,000/ as funeral expenses. Mr. Mansuri further contended that the Tribunal has rightly considered the prospective income at 30%. Mr. Mansuri contended that the appeal being meritless, deserves to be dismissed.
8. Having heard the learned counsel appearing for the parties and on perusal of the copies of the relevant documentary evidence, more particularly Certificate regarding milk supply issued by Sangpur Milk Coop. Society, Exhibit 19, Copy of Register showing income of the deceased Exhibit 21, Copy of FIR Exhibit 21, copy of panchnama of place of accident, Exhibit 22, inquest panchnama, exhibit 23, RC Book of rickshaw, Exhbit 24, PM Report Exhibit 25, Insurance policy of rickshaw, exhibit 32, copy of charge sheet filed against rickshaw driver, exhibit 33 and copy of driving license of rickshaw driver, exhibit 35. It clearly transpires that the Tribunal has rightly assessed the income of the deceased at Rs.4000/ per month and the same therefore does not require any alteration.
Page 4 of 9 C/FA/1089/2018 ORDERHowever, it appears that the Tribunal has while awarding prospective income has relied upon the judgment of the Apex Court in the case of Rajesh and Ors. vs. Rajbir Singh and Ors. reported in 2013 ACJ 1403.
9. The Apex Court in the case of Pranay Sethi (supra) has observed thus "52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/ towards funeral expenses, Rs. 1,00,000/ loss of consortium and Rs. 1,00,000/ towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect.
Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, Page 5 of 9 C/FA/1089/2018 ORDER loss of consortium and funeral expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be factcentric or quantumcentric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
"58. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The twoJudge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of Page 6 of 9 C/FA/1089/2018 ORDER the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
10.Considering the aforesaid judgment therefore and considering the age of the deceased at 48 years on the date of the accident, following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the prospective income, which could be added to the income as determined by the Tribunal only to the tune of 25%.
11.Having come to the aforesaid conclusion, the dependency loss as recalculated on re appreciating of the evidence on record and Page 7 of 9 C/FA/1089/2018 ORDER following the judgment of the Apex Court in Pranay Sethi (supra) would come as under Rs.4000/ p.m.(income) + Rs.1000 (25% prospective income) - 1250 (1/4th towards personal expenses) = 3750 X 12 = Rs.45,000/ Considering the age of the deceased at 48 years and following the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121 in the instant case, the Tribunal has correctly applied the multiplier of 13 and hence, the total amount under the head of dependency loss would come to Rs.5,85,000/.
12.As held by the Apex Court in the case of Pranay Sethi (supra), the Tribunal has awarded excess amount of Rs.2,25,000/ under different conventional heads and has not awarded any amount under the head of loss of estate. Following the aforesaid judgment therefore, the respondentsoriginal claimants would be entitled to Rs.15,000/ as Loss of Estate, Rs.40,000/ as Loss of Consortium and Rs.15,000/ towards funeral expenses. Thus, the respondents original claimants would be entitled to total compensation of Rs.6,55,000/. As far as the contention raised by Mr. Nanavati on the aspect of interest is concerned, considering the date of accident being 28.01.2012, the same deserves to be negatived. The Tribunal has committed no Page 8 of 9 C/FA/1089/2018 ORDER error in awarding 9% interest. Consequently therefore, the appeal is partly allowed. The respondentsoriginal claimants would be entitled to Rs.6,55,000/ with 9% interest and proportionate cost from the date of filing of the claim petition till its realisation and the appellantinsurance company would be entitled to recover the remaining amount.
13.The Tribunal is directed to refund the amount of Rs.1,78,400/ to the appellantinsurance company forthwith with proportionate interest and costs.
14.As the appeal is disposed of, the Civil Application would also stand disposed of.
(R.M.CHHAYA, J) bjoy Page 9 of 9