Gujarat High Court
Oriental Insurance Co Ltd vs Bipinbhai Muljibhai Padhiyar on 21 December, 2022
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/FA/2255/2020 JUDGMENT DATED: 21/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2255 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/FIRST APPEAL NO. 2255 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================
Whether Reporters of Local Papers may be allowed to see 1 NO the judgment ?
2 To be referred to the Reporter or not ? YES Whether their Lordships wish to see the fair copy of the 3 NO judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the Constitution of India or any NO order made thereunder ?
====================================================== ORIENTAL INSURANCE CO LTD Versus BIPINBHAI MULJIBHAI PADHIYAR ====================================================== Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1 for the Defendant(s) No. 4 MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1,2 MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 5 NOTICE SERVED for the Defendant(s) No. 3 ====================================================== Page 1 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI Date : 21/12/2022
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 arising out of the judgment and award dated 31.12.2019 rendered by the learned Motor Accident Claims Tribunal (Auxiliary) and 10 th Additional District Judge, Vadodara (the Tribunal) in Motor Accident Claim Petition No. 1750 of 2009 (claim petition), whereby, the Tribunal was pleased to award compensation of Rs.2,62,320/- together with interest at the rate of 9% per annum from the date of claim petition till realization against the total claim of Rs.50 lakh, as claimed by the respondent Nos. 1 and 2 - original claimants towards the death of the deceased. Accordingly, the appellant -
insurance company - original opponent No. 2 has preferred this appeal challenging the said award.
2. Since the facts of the case are not in dispute, the Court deems it proper not to discuss the same.
3. Heard, learned advocate Mr. Maulik Shelat for the appellant, learned advocate appearing for Mr. Mohsin M. Hakim for the respondent Nos. 1 and 2 and learned advocate Mr. Rahul Dholakia for the respondent No. 5.
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4. The main thrust of the arguments of the learned advocate for the appellant is that the award of compensation under the head of dependency benefit in the absence of any evidence on record to show that the claimants are, in fact, dependent on the income of the deceased, is against the settled legal position and accordingly, the Tribunal has materially erred in awarding the compensation under the head of dependency benefit. In support of such submission, the learned advocate for the appellant - insurance company has relied upon following decisions:
i) Manjuri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474;
ii) Sarla Verma and Others v. Delhi Transport Corporation, MANU/SC/0606/2009;
iii) decision dated 22.01.2016 of this Court rendered in First Appeal No. 2188 of 2002.
4.1 The learned advocate for the appellants further submitted that the Tribunal has also erred in assuming the income of the deceased without there being any proof in that regard. Accordingly, it is urged that the impugned judgment and award requires to be modified suitably and thereby, requested to allow this appeal.
5. Per contra, while opposing the present appeal, the learned advocates Page 3 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 for the respondent Nos. 1, 2 and 5 submitted that in view of settled law laid down by the Apex Court in the decisions in Sarla Verma and Others v.
Delhi Transport Corporation and Others, MANU/SC/0606/2009 and National Insurance Co. Ltd. v. Pranay Sethi and Others, MANU/SC/1366/2017, the Tribunal has rightly awarded the compensation, under different heads and accordingly, this appeal being bereft of any merits, deserves to be dismissed.
6. Regard being had to the submissions made and considering the impugned judgment and award so also the material available on record vis-
a-vis the decisions relied upon by the learned advocate for the appellant, it appears that for the death of the deceased, the Tribunal has awarded compensation of Rs.2,62,320/- under different heads. So far as the facts of the accident as well as the income of the deceased are concerned, there is no dispute. The learned advocate for the appellant has mainly submitted that the Tribunal has erroneously awarded an amount under the head of dependency benefit although there was no evidence to suggest that the claimants were dependent upon the income of the deceased. In this regard, if the compensation awarded by the Tribunal is referred to, it can be summarized as under:
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Head Amt. (Rs.)
Loss of Dependency Benefit 2,32,320/-
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
Total 2,62,320/-
6.1 In this regard, if the decision relied upon by the learned advocate for
the appellant - insurance rendered in First Appeal No. 2188 of 2002 to First Appeal No. 2195 of 2002, the Court, after referring various decisions of the Apex Court viz. in Sarla Verma (supra), Manjuri Bera (supra) etc., has held as under:
"9.03.Now, so far as the amount awarded under the head of loss of dependency / future loss of income is concerned, it is required to be noted and it cannot be disputed that the amount awarded under the said head is on the premise that the loss suffered by the claimant, if the deceased upon whose income the claimant was dependent, would not have died. Even while awarding amount of compensation under the head of loss of dependency / future loss of income, as observed by the Hon'ble Supreme Court in the case of Sarla Verma (supra) and even while considering deduction towards personal expenses of the deceased, number of dependents are required to be considered. In the case of Sarla Verma (supra), while considering proper deduction towards personal expenses of the deceased in case of the deceased who was a bachelor and the claimants are the parents, the Hon'ble Supreme Court in paragraph Nos. 31 and 32 has observed and held as under :-
"31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event Page 5 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
9.04. Therefore, as such while assessing / awarding compensation under the head of loss of dependency / future loss of income, whether the claimant/s was/were dependent or not, is a relevant consideration. Therefore, if the claimant who is not at all dependent upon the deceased, shall not be entitled to any loss of dependency / future loss of income.
9.05. The nomenclature "loss of dependency" itself is suggestive of the fact that it is towards the loss which the dependents would be suffering because of untimely death of the deceased - victim of the accident, upon whom he/she/they was/were dependent.
9.06. Even in the case of Manjuri Bera (supra) the Hon'ble Supreme Court has observed and held that even if there is no loss of dependency, claimant, if he or she is a legal representative, will be entitled to compensation, quantum of which shall not be less than the liability flowing from section 140 of the Act. it is required to be noted that in the said decision the Hon'ble Supreme Court was considering the maintainability of the application for getting compensation under section 140 of the Motor vehicles Act which is as such statutorily provided under section 140 of the Act. In the said decision the Hon'ble Supreme Court has further observed and held that "no fault Page 6 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 liability" envisaged in section 140 of the Act is distinguishable from the rule of "strict liability". It is further held that in the former compensation amount is fixed which is Rs.50,000 in cases of death. It is a statutory liability. Since the amount is fixed amount / crystallized amount, the same has to be considered as part of the estate of the deceased. It is further held that therefore, statutory compensation could constitute part of his estate and therefore, his legal representative namely his daughter has inherited his estate and therefore, she is entitled to inherit his estate.
9.07. Even in the case of Ramanbhai Prabhatbhai (supra) the Hon'ble Supreme Court was considering the principle of "no fault liability".
10.00. Thus, considering the object and purpose of awarding compensation under the head of loss of dependency / future loss of income, though at the instance of claimant, who is a legal representative but not dependent upon the deceased / victim of the accident, claim petition for seeking compensation under the Motor Vehicles Act shall be maintainable, but such claimant, who is not dependent upon the deceased / victim of the accident, shall not be entitled to any compensation under the head of loss of dependency / future loss of income, for the simple reason that at the time of accident, such a claimant was not dependent upon the income of the deceased / victim of the accident and therefore, there shall not be any loss of dependency / future loss of income to such a claimant. However, such claimant shall be entitled to compensation under other heads such as medical expenses, funeral expenses, transportation charges etc. which may fall under pecuniary loss / pecuniary damages, as the same can be said to be loss to the estate and the claimant shall also be entitled to compensation under other conventional heads such as loss of consortium, loss of love and affection, loss of estate etc. Under the circumstances, it is held that the claim petition seeking compensation under the Motor Vehicles Act for the death of the deceased / victim of the accident, at the instance of a claimant, who is heir and legal representative but not dependent, shall be maintainable Hon'ble Supreme Court and as observed by the in the case of Manjula Devi (supra), such compensation shall not be less than the amount as provided under section 140 of the Motor Vehicles Act. Thus, the claimant in such a case, shall be entitled to minimum compensation as provided under section 140 of the Motor Vehicles Act. It is further observed and Page 7 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 held that as such claim petition is held to be maintainable, such a claimant, who is legal heir but not a dependent, shall not be entitled to any amount of compensation under the head of loss of dependency / future loss of income, but shall be entitled to compensation under other heads towards pecuniary loss / damages such as medical expenses, transportation, special diet, attendance charges and under the conventional heads such as, loss of consortium, loss of estate, loss of love and affection etc."
6.2 Thus, as held in the aforesaid decision after taking into consideration various pronouncements of the Apex Court, a claim petition seeking compensation under the MV Act for the death of the deceased / victim of the accident, at the instance of a claimant, who is heir and legal representative but not dependent, shall be maintainable as observed by the Hon'ble Supreme Court in the case of Manjula Devi (supra), such compensation shall not be less than the amount as provided under section 140 of the Motor Vehicles Act. Thus, the claimant in such a case, shall be entitled to minimum compensation as provided under section 140 of the Motor Vehicles Act. It is further observed and held that as such claim petition is held to be maintainable, such a claimant, who is legal heir but not a dependent, shall not be entitled to any amount of compensation under the head of loss of dependency / future loss of income, but shall be entitled to compensation under other heads towards pecuniary loss / damages such as medical expenses, transportation, special diet, attendance charges and under the conventional heads such as, loss of consortium, loss of estate, loss of Page 8 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022 C/FA/2255/2020 JUDGMENT DATED: 21/12/2022 love and affection etc. In the case on hand, when the claimants have not proved that they were dependent upon the deceased in any way, and accordingly, in that view of the matter, the Tribunal appears to have erred in awarding compensation under the head of loss of dependency. However, as per the decisions in Magma General Insurance Co. Ltd. V. Nanu Ram alias Chuhru Ram and Others, MANU/SC/1012/2018 and in Pranay Sethi (supra), the original claimants being children of the deceased, are entitled to parental consortium @ Rs.40,000/- each. Accordingly, the impugned judgment and award requires to be modified to that extent.
6.3 Thus, in view of the above, present appeal requires to be allowed and is accordingly, allowed in part. The appellants - original claimants are entitled to following compensation under different heads as narrated herein below, and to that extent, the impugned judgment and award stands modified:
Head Granted by Required to be
Tribunal (Rs.) granted (Rs.)
Loss of Dependency 2,32,320 --
Loss of (Parental) Consortium - 80,000/-
(Rs.40,000x2)
Loss of Estate 15,000/- 15,000/-
Funeral Expense 15,000/- 15,000/-
Total 2,62,320/- 1,10,000/-
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C/FA/2255/2020 JUDGMENT DATED: 21/12/2022
Head Granted by Required to be
Tribunal (Rs.) granted (Rs.)
Compensation u/s. 140 NFL - 50,000/-
(included in
above amount)
Total Compensation 2,62,320 1,60,000/-
Difference 1,02,320/-
6.4 Thus, the claimants shall be entitled for compensation of
Rs.1,60,000/- towards the death of the deceased. Accordingly, the
difference amount, as aforesaid, shall be refunded to the appellant -
insurance company with proportionate interest and cost. The rest of the judgment and award shall remain intact. R&P, if received, be sent back forthwith.
6.5 In view of main first appeal is disposed of, civil application therein does not survive. The same stands disposed of accordingly.
[ A. C. Joshi, J. ] hiren Page 10 of 10 Downloaded on : Sat Dec 24 04:26:56 IST 2022