Gujarat High Court
Firozkha Mahmedkha Pathan (Transposed ... vs Sarojben Jagdishbhai Bhakta & 2 on 1 October, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/FA/2790/1996 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2790 of 1996
With
CROSS OBJECTION NO. 296 of 1997
In
FIRST APPEAL NO. 2790 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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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FIROZKHA MAHMEDKHA PATHAN (TRANSPOSED AS RESPT.NO.3) &
2....Appellant(s)
Versus
SAROJBEN JAGDISHBHAI BHAKTA & 2....Defendant(s)
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Appearance:
MR RAJNI H MEHTA, ADVOCATE for the Appellant(s) No. 1 - 3
DELETED for the Defendant(s) No. 1
MR DN PANDYA, ADVOCATE for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
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C/FA/2790/1996 JUDGMENT
Date : 01/10/2015
ORAL JUDGMENT
1. This appeal is filed by the owner and the insurer of a matador involved in a vehicular accident causing death of one Jagdishbhai Bhakta. It appears that on the date of accident the deceased, his wife and other family members were travelling in the said matador as passengers. The matador was stopped to enable the passengers to answer the nature's call. Rest of the passengers climbed the matador. Just when the deceased was about to climb the matador, according to the witness, the matador driver suddenly started the vehicle, in the process, the deceased received serious injuries and later on succumbed. His widow and son filed the claim petition seeking compensation of Rs. 15 lakhs from the driver, the owner and the insurer of the matador. Before the Tribunal, the Insurance company disputed its liability on the ground that since the deceased was a passenger in the goods vehicle, there was breach of condition of insurance and therefore, Insurance company was not liable to pay risk.
2. The Claims Tribunal on the basis of evidence held that accident occurred due to sole negligence of the matador driver, repelled the opposition of the Insurance company, turned down the plea of the Insurance company for being absolved of its liability. On the question of quantum, the Tribunal noted that the deceased was a Secondary School teacher earning a salary of Rs.2000/ per month. He was aged about 43 years. The Tribunal granted 50% increase Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Oct 02 02:12:06 IST 2015 C/FA/2790/1996 JUDGMENT for the future, deducted 1/3rd for personal expenditure of the deceased himself, applied a multiplier of 14 and arrived at loss of dependency benefit at Rs.5,25,336/. To this the Tribunal added a sum of Rs.20,000/ towards loss of expectation of life, Rs.2000/ towards post death ceremonies, Rs.5000/ towards loss of consortium and thus arrived at a sum of Rs.5,52,336/. The Tribunal ignored the plea of the claimants that the deceased was also earning Rs.60,000/ by way of agricultural operation and Rs.33,000/ by selling milk. This award has given rise to the present appeal and cross objections by the claimants seeking higher compensation.
3. The discussion would have to be divided in three parts regarding negligence, the liability of the Insurance company and the quantum of compensation. Addressing the issue of negligence the same is possible of summary disposal. It is virtually undisputed that the accident happened when the deceased was about to climb on to the matador, the driver suddenly started the vehicle resulting into serious injuries to the deceased. As per the deposition of Sarojben, widow of the deceased at exh. 34, the deceased along with his family members were travelling from Bardoli to Vadodara in the matador. Near Bhalej village, the matador was stopped for everyone to ease themselves. All other drivers climbed the matador. Deceased was about to climb when the driver started the vehicle suddenly. At that time the door of the vehicle opened with a jerk and dashed against the deceased who fell down and got tangled. Though this witness has not elaborated it appears that in the process some part of the Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Oct 02 02:12:06 IST 2015 C/FA/2790/1996 JUDGMENT matador, after the deceased fell down, must have hit him causing such serious injuries. It would always be impossible to imagine a person receiving fatal injuries merely by being hit by a door, of vehicle which has started suddenly, opening. Be that as it may, the entire blame must be that of the driver who in such a negligent manner drew the vehicle so as to endanger human life.
4. Coming to the liability of the Insurance company, it is undisputed that if the accident had taken place when the deceased was actually travelling in the goods vehicle as a passenger, the Insurance company could plead breach of condition and therefore, for being absolved of its liability. However, the accident in the present case took place in somewhat peculiar circumstances. As per the deposition of Sarojben, deceased was not at the time of accident travelling in the matador. He was yet to board the vehicle. Thus before he tried to climb, the matador started suddenly. It must have been started with such a jerk that its door accidentally opened. Under the circumstances the accident took place when the deceased was not yet on to the matador. He cannot therefore, be stated to be a passenger in the goods vehicle. The liability of the Insurance company was correctly fastened by the Tribunal.
5. Regarding compensation, Sarojben, widow of the deceased, produced the pay slip of the deceased of Srimati M.M. Bhakt Higher Secondary School at exh.35. This certificate issued by the principal of the school showed that at the time of accident the basic pay of the deceased was Rs.2050/. With allowances such as Dearness Allowance, Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Oct 02 02:12:06 IST 2015 C/FA/2790/1996 JUDGMENT HRA and medical allowance, his gross salary was Rs.3004/. The certificate further pointed out that on the date of issuance of certificate i.e. January 1996 had the deceased been alive, his basic pay would have been Rs.2480/ and with allowances his gross salary would have been Rs.6376/ per month.
6. The Tribunal has adopted this figure of Rs.3004/ for calculating loss of dependency benefits, granted 50% increase and adopted 1/3rd for the personal expenditure of the deceased. The Tribunal has also adopted multiplier of 14 looking to the age of the deceased. On these aspects of the matter, there could be no legal dispute at all. Quite apart from being a salaried person in a permanent service, deceased had every scope of receiving higher salary in future as demonstrated by his pay certificate exh.35. The choice of multiplier is also in consonance with the decision of the Supreme Court in case of Sarla Verma & Ors. Versus Delhi Transport Corporation and Anr. reported in (2009) 6 Supreme Court Cases 121.
7. The claimants produced the 7/12 and 8A forms to show that landholding of the deceased. As per these documents, the deceased was the sole owner of 7 acre and 23 gunthas of agricultural land of village Kabodiya. 7/12 register shows that he himself was cultivating such land in the year 19981990. The crop of soyabean and paddy was taken. The Tribunal completely overlooked this documentary evidence without any discussion at all. It may be that the widow as stated in the cross examination has no documentary evidence to establish that deceased was Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Oct 02 02:12:06 IST 2015 C/FA/2790/1996 JUDGMENT earning Rs.60,000/ per annum from such agricultural operation, nevertheless, when there was documentary evidence of agricultural involvement of the deceased, there was no reason for the Tribunal to ignore the involvement of the deceased in such activity. AS noted, the village forms showed that land was in occupation of the deceased, where in the year immediately preceding the accident, the crops of paddy and soyabean were grown. It is true that the Courts have adopted principle of no compensation for agricultural income since even after the death of owner, the agricultural land would remain with the family, nevertheless, the Courts have also adopted the principle of awarding compensation for loss of supervision. This is on the premise that no agricultural operation can be carried out without effective involvement and supervision by the owner of the land and a person who is engaged in such operation since long suddenly dies accidentally, the agricultural income would certainly suffer. The widow, minor child and sometime aged parents cannot be accepted to take over the agricultural operations immediately or effectively so as to restore the full income with the family, as the deceased himself was earning.
8. In the present case, the landholding of deceased was 7 acres and 23 gunthas. One could therefore, easily adopt loss of supervision of Rs. 10,000/ per annum. Deducting Rs.3000/ for the personal expenditure of the deceased and maintaining the multiplier of 14 towards loss of dependency benefit would come to Rs.98,000/ (Rs.7,000x14) for the family. This amount can be rounded offf to Rs. 1 lakh which would be the additional Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Oct 02 02:12:06 IST 2015 C/FA/2790/1996 JUDGMENT compensation the claimant would receive from the Insurance company.
9. In the result, the First Appeal of the Insurance Company is dismissed. The Cross Objection of the claimants is allowed partially. The claimants would receive a further sum of Rs. 1 lakh from the Insurance company with interest at the same rate awarded by the Claims Tribunal from the date of application till actual payment which may be made by depositing the amount before the Claims Tribunal latest by 30.11.2015. The amount deposited by the Insurance company if is still lying in the fixed deposit in the control of the Claims Tribunal, same may be released in favour of the claimants. Cross Objection disposed of accordingly.
(AKIL KURESHI, J.) raghu Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Oct 02 02:12:06 IST 2015