Gujarat High Court
Shukkarbhai Nanabhai Maratha & vs Jayantibhai Kalyanbhai Patel & on 18 April, 2016
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/FA/1189/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1189 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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SHUKKARBHAI NANABHAI MARATHA & 1....Appellant(s)
Versus
JAYANTIBHAI KALYANBHAI PATEL & 1....Defendant(s)
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Appearance:
MR DHARMESH V SHAH, ADVOCATE for the Appellant(s) No. 1 - 2
MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 18/04/2016
ORAL JUDGMENT
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1. The present appeal is preferred by the appellants seeking enhancement of compensation awarded by learned Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Petition No.239 of 2005.
2. By way of preferring the present appeal, the appellants - original claimants have, inter alia, contended that learned Tribunal has not properly appreciated the evidence on record. It is further contended that learned Tribunal has not taken into consideration prospective rise in income even though the deceased was aged about 49 years at the time of accident and her resultant death and hence, learned Tribunal has committed manifest error. It is also contended that learned Tribunal has failed to appreciate that vehicle in question was insured with New India Insurance Company - respondent No.2 and the respondent No.2 has issued package/comprehensive policy and, therefore, risk of pillion rider is also covered in the policy itself and that law has been declared by the Honourable Apex Court in the case of National Insurance Company Limited Vs Balkrishnan and another, reported in (2013) 1 SCC
731. It is further contended that the deceased was pillion rider upon motor cycle No.GJ 15 HH 9587 and driver of the aforesaid motor cycle dashed it from behind with tempo No.GJ 16 T 9408 which was proceeding ahead of the said motor cycle and, hence, learned Tribunal has wrongly Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed Apr 20 01:33:05 IST 2016 C/FA/1189/2011 JUDGMENT attributed 70% negligence on the part of the driver of motor cycle.
3. The short facts giving rise to the present appeal are that an unfortunate incident took place on 27.4.2005 when the daughter of appellant No.1 and mother of appellant No.2 was travelling as pillion rider on the motor cycle owned by respondent No.1. After travelling some time, they met with an accident and due to the said accident, the deceased had suffered a major head injury and succumbed to the injuries. Ultimately, the claimants filed the claim petition before learned Tribunal.
4. Heard Mr.Dharmesh Shah, learned advocate for the appellants and Mr.Palak Thakkar, learned advocate for the respondent No.2 - insurance company.
5. Learned advocate Mr.Palak Thakkar for respondent No.2 - insurance company has argued that on over all appreciation of evidence on record, learned Tribunal has awarded just and proper compensation and there appears no scope for enhancement of compensation and hence, this Court may not interfere with the same.
6. This Court has gone through the impugned judgment and award as well as material made available in the nature of paper book to this Page 3 of 7 HC-NIC Page 3 of 7 Created On Wed Apr 20 01:33:05 IST 2016 C/FA/1189/2011 JUDGMENT Court.
7. Having heard learned counsel for the respective parties and on going through the R & P, indisputably, the deceased was travelling upon motor cycle No.GJ 15 HH 9587 as pillion rider and respondent No.1 who is registered owner was driving the said motor cycle at the time of accident. Indisputably, the deceased was riding upon the aforesaid motor cycle from nearby Collector's office, Valsad in order to reach at her village. While the aforesaid motor cycle was passing upon the National Highway, in front of Vallabh Ashram, at that time, driver of tempo No.GJ 16 T 9408 was proceeding ahead of the aforesaid motor cycle applied break and as a result, driver of the said motor cycle i.e. respondent No.1 dashed with the aforesaid tempo from behind and committed accident. This is a clear case of hitting from behind.
7.1 Under the circumstances, learned Tribunal could have considered that the deceased was not driver of either of the vehicles involved in the accident and, therefore, there was no question of attributing negligence on the part of the deceased. In this view of the matter, this Court is of the considered opinion that this is a case governs on the principle of composite negligence as the deceased was not the driver of either of the vehicles involved in the accident.
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C/FA/1189/2011 JUDGMENT
When the deceased has opted to proceed against one of the tort-feasors i.e. driver, owner and insurer of the motor cycle, then the claim is maintainable in view of the principles laid down in several decisions and recently, the said principle is reiterated in well known decision in the case of Khenyei Vs New India Assurance Company Limited and others, reported in (2015) 9 SCC 273. For that simple reason only, findings recorded by learned Tribunal attributing 70% contributory negligence on the part of the driver of the motor cycle and 30% upon the driver of tempo in question is required to be set aside though the driver, owner and insurer of tempo in question are not impleaded as party respondents.
8. On the point of quantum, the claimants have pleaded the age of the deceased to be 49 years in the claim petition. In order to prove the age of the deceased, school leaving certificate is produced vide Exh.47 disclosing the date of birth of the deceased to be 22.6.1956 and the accident had occurred on 27.4.2005. Therefore, the age of the deceased is proved to be 49 years. The claimants have pleaded that the deceased was working and to prove her income, pay slip is produced vide Exh.52 disclosing her basic pay of Rs.5000/- + DA Rs.3200/-, which comes to Rs.8200/-. As the deceased was aged about 49 years, 30% rise in income is required to be considered which would come to Rs.2460/- and Page 5 of 7 HC-NIC Page 5 of 7 Created On Wed Apr 20 01:33:05 IST 2016 C/FA/1189/2011 JUDGMENT hence, total amount would come to Rs.10660/-. As there are two claimants, 1/3rd amount is required to be deducted towards personal and living expenses which would come to Rs.7107/- (Rs.10660
- Rs3553 = Rs.7107/-). Out of the aforesaid amount, income tax at the rate of 10% is required to be deducted and hence, the amount would come to Rs.6400/-(Rs.7107 - Rs.710 = Rs.6400/-) and annual amount would come to Rs.76800/- (Rs.6400 x 12 = Rs.76800/-). As the deceased was falling in the age group of 45 to 50 years, appropriate multiplier would be 13 and hence, the amount would come to Rs.9,98,400/- (Rs.76800 x 13 = 9,98,400/-). The claimants are also entitled to receive Rs.15,000/- towards other heads like loss of estate and funeral expenses etc. In all, the amount would come to Rs.10,13,400/-.
9. On the point of liability, learned Tribunal has exonerated respondent No.2 - insurance company relying upon the ratio laid down in the case of United India Insurance Company Limited Vs Tilak Singh, reported in 2006 ACJ 1441. However, on going through the Record and Proceedings, more particularly, Exh.49 - insurance policy, it appears that learned Tribunal has failed to appreciate that policy at Exh.49 is package/comprehensive policy, but learned Tribunal has recorded the finding that policy is in the nature of "act policy" and, therefore, risk of pillion rider is not covered.
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However, on going through the policy particulars, it clearly reveals that the insurer has recovered premium of Rs.941/- inclusive of own damage etc and on the heading of policy itself, nature of policy is mentioned as "package policy". In that view of the matter, taking into consideration the ratio laid down in the case of Balakrishnan (supra), insurer is liable to pay compensation in case of package/comprehensive policy. Therefore, findings recorded by learned Tribunal exonerating the insurance company is required to be reversed and liability is required to be fastened upon respondent Nos.1 and 2 jointly.
8. For the reasons recorded above, the appeal succeeds. The amount of compensation awarded by learned Tribunal is enhanced from Rs.2,61,000/- to Rs.10,13,400/-. The respondents are directed to deposit the aforesaid enhanced amount within a period of two months from today before the learned Tribunal. The respondents are directed to pay interest at the rate of 9% from the date of claim petition till realization. On deposit of the aforesaid amount, learned Tribunal shall disburse the same to the claimants as per its discretion on proper identification and verification. Record and Proceedings, if any, lying here be sent back to the concerned lower court forthwith. No costs.
(R.P.DHOLARIA,J.) pathan Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed Apr 20 01:33:05 IST 2016