Gujarat High Court
Oriental Insurance Co Ltd vs Varshaben Wd/O Nirmalsinh Padheria & 4 on 24 March, 2015
Author: Jayant Patel
Bench: Jayant Patel, G.B.Shah
C/FA/397/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 397 of 2015
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ORIENTAL INSURANCE CO LTD....Appellant(s)
Versus
VARSHABEN WD/O NIRMALSINH PADHERIA & 4....Defendant(s)
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Appearance:
MR RAJNI H MEHTA, ADVOCATE for the Appellant(s) No. 1
MR ND GOHIL, ADVOCATE for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 24/03/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgement and award passed by the Tribunal in MACP No.861 of 2004, whereby the Tribunal has awarded compensation of Rs.7,77,560/- with interest at the rate of 9% per annum.
2. The short facts of the case appear to be that on 23.3.2004 at about 8.30 a.m., the deceased Nirmalsinh Madhusinh Padheria along with his mother Kunvarben Madhusinh Padheria, when was going on the motorcycle bearing Registration Page 1 of 11 C/FA/397/2015 ORDER No.GJ-1-CP-1568 from Adaroda towards Bavla and when they reached near Nagdevta Mandir, one jeep bearing Registration No.GJ-6-AA-3411 came from the opposite direction and dashed with the motorcycle. Resultantly, the deceased Nirmalsinh as well as his mother Kunvarben sustained injuries and they succumbed to their injuries.
The claim petitions were filed for compensation of Rs.40 lac for the death of the deceased Nirmalsinh being MACP No.861 of 2004 and for the compensation of Rs.15 lac for the death of the deceased Kunvarben being MACP No.862 of 2004.
The Tribunal, at the conclusion of the proceedings, awarded compensation of Rs.7,77,560/- and Rs.3,14,000/- respectively with interest at the rate of 9% per annum. It is under these circumstances, the appellant Insurance Company has preferred the present appeal against the judgement and award in MACP No.861 of 2004.
3. We may record that, as declared by Mr.Mehta, learned Counsel for the appellant Insurance Company, no appeal has been preferred in MACP No.862 of 2004.
Page 2 of 11 C/FA/397/2015 ORDER4. We have heard Mr.Rajni Mehta, learned Counsel for the appellant and Mr.Gohil, learned Counsel appearing for the original claimants -
respondents No.1 and 2 herein, upon advance copy, since he had appeared at the stage of application for condonation of delay.
5. The first contention raised by the learned Counsel for the appellant was that once the widow of the deceased had remarried, she would cease to be the dependent of the deceased and would not be entitled to the compensation. It was also submitted that the brother of the deceased, who was the original claimant could not be said as dependent considering the facts and circumstances of the case. In furtherance to his submission, he relied upon the decision of the Apex Court in the case of Anju Mukhi and Anr. Vs. Satish K. Bhatia and Ors., reported in (2010) 15 SCC 630.
He, therefore, submitted that this Court may interfere in the appeal.
6. As such, the aspect of remarriage of the widow of the deceased after the accident has already been considered by us after considering the above referred decision of the Apex Court, in the case Page 3 of 11 C/FA/397/2015 ORDER of Jagruti Shishir Banugariya (Patel) Vs. Ravji Kanthan Ahir & Ors., in First Appeal No.3828 of 2007, which has been decided on 17.3.2015 and in the said decision, from paragraph 9 to 11, it was observed thus:-
"9. On the aspect of remarriage by the appellant, we may record that this Court [(Jayant Patel, J.) (one of us)] had an occasion to consider the issue in First Appeal No. 4492/07 in the case of National Insurance Company Ltd. vs. Bhartiben Bhupatbhai and others decided on 07.09.2007. This Court in the said decision, at paras 3 to 5, observed as under
3. The learned counsel for the appellant first contended that the wife of the deceased would not be entitled to the compensation because she has remarried after the incident and in furtherance to his submission, he contended that as per the deposition of the motherinlaw, who is one of the claimant, the accident occurred one day after the marriage and after about three months, she has remarried and since she has remarried, she cannot be said as dependent entitled for compensation. The learned counsel further contended that the mother of the deceased would only be entitled to the compensation and not the widow of the deceased who has remarried. The learned counsel further contended that as per Section 166 of the Motor Vehicles Act, only legal representative is entitled to file a claim petition. If the wife has remarried, she would cease to be the legal representative and therefore, not entitled to claim the compensation as per the Act.
The aforesaid aspects are not considered by the Tribunal and there is an error committed by the Tribunal.
Page 4 of 11 C/FA/397/2015 ORDER4. The examination of the said contention shows that the basis of the contention is on the wrong premise. The tortuous liability would accrue on the date of accident. Merely because the adjudication has taken place on a later stage is not a relevant circumstance to get away from the liability or to repudiate the liability of the tortfeaser. Therefore, if such principles are applied on the date of the accident, the lawfully wedded wife or the widow of the deceased would be entitled to the compensation. Merely because at a later stage she remarried, is absolutely not justifiable ground to deprive her from the compensation nor the insurance company which is otherwise liable to pay the compensation can get away from the liability. This Court had considered the similar question in the First Appeal No.3299 of 2007 which came to be decided on 10.08.2007 in which the Court has observed as under:
3. The learned Counsel for the appellant raised the only contention that the claimants were only father and mother of the deceased since the wife of the deceased has remarried and on account of her abandonment of the claim pending the claim petition and, therefore, the Tribunal ought to have awarded 1/3rd of the amount of dependency benefit, instead of 2/3rd of the benefits and, therefore, there is an error committed by the Tribunal in awarding the compensation to the extent of 2/3rd dependency benefit.
4. The learned Counsel for the original claimants, during the course of hearing placed on record the application for deletion, the order passed by this Court and the affidavit of the wife of the deceased and also the recent affidavit dated 18.7.2007 for the declaration by the wife, who has remarried to the Page 5 of 11 C/FA/397/2015 ORDER effect that she has abandoned the right in favour of the parents of the deceased.
5. It appears that as per the principles of tortuous liability the relevant event is the date of the accident and no the subsequent circumstances of the dependent members of the deceased, who expired in the accident. It is not in dispute that on the date of the accident the deceased was married and the wife as well as the parents namely; father and mother both were dependents of the deceased. Therefore, the liability, if any, in accordance with law did accrue for the appellant Insurance Company or the other tort feasors, as the case may be. It is true that in the present case, pending the claim petition, the wife of the deceased has abandoned the claim and on account of the same, her name was deleted, but under such circumstances, the reasonable construction would be that the wife is not interested to succeed the property or the dependency benefit realised therefrom of the deceased. Even as a successor of any person, who is governed by Hindu Succession Act, wife, father and mother are in the first degree of the successor. On account of either nonexistence of any of the members of successor in the first degree, the properties are to be enjoyed by the remaining members falling in the category of first degree succession. It may be that the number of persons, who are dependent upon the deceased may have the relevance while ascertaining the compensation, but after the accident, if the wife has remarried or that one of the parents, either father or mother has expired, would not be a justifiable ground to contend that the Insurance Company would not be liable to pay the Page 6 of 11 C/FA/397/2015 ORDER compensation, though liability already accrued in accordance with law on the date of accident.
6. Therefore, keeping in view the aforesaid aspects, if the present case is considered, it cannot be said that the Tribunal has committed error in awarding 2/3rd amount as compensation.
As observed earlier, the appellant Insurance Company would not be entitled to take any benefit of the deletion of the name of the wife. Further, it also deserves to be recorded that the affidavit is filed, which shows that the wife has abandoned her right in favour of the parents of the deceased. Such circumstances are not unknown in cases where on account of the accident the person concerned has expired and the wife has remarried. It appears that if the legal liability based on the principles of law of tort read with the provisions of the Motor Vehicle Act has accrued on the date of accident, the Insurance Company cannot validly contended that the Tribunal ought not to have awarded the compensation merely because the wife has remarried or she has abandoned her right or got herself deleted by abandoning the right in favour of the parents of the deceased.
7. The reference may also be made to the decision of the Division Bench of this Court in case of New Indian Insurance Company Limited v. Ramsinh Abhesinh Rathod & Ors.", reported in 2006(0) GLHEL 217371, wherein the Division Bench of this Court, on account of the death of one of the parents, observed that the quantum of compensation would continue, if subsequent to the date of the accident, even if one of the surviving parents has continued to hold the interest.
Page 7 of 11 C/FA/397/2015 ORDER8. In view of the above, it cannot be said that the Tribunal has committed error in awarding the compensation of 2/3rd of the dependency benefit.
9. Hence, the appeal is meritless and, therefore, deserves to be dismissed.
5. Therefore, the contention as sought to be canvassed cannot be accepted. The attempt on the part of the learned counsel to contend that the marriage was only for one day and the wife is now not dependent upon the income of the deceased on account of the remarriage, cannot be countenanced at the instance of the Insurance Company and this Court is not called upon to decide the inter se dispute between the motherinlaw and the wife. So far as the insurance company is concerned, as the tortuous liability has accrued, it is not absolved or cannot get away from the liability to pay the compensation as per the Act to the legal heirs of the deceased. Wife of the deceased, even if married at a later stage would continue to represent the estate for claiming the compensation under Section 166 of the Act which is based on the cause of action on the date of the accident and therefore, the said contention cannot be accepted and is rejected."
The aforesaid observations show that this Court by relying upon the earlier decision, wherein the reference of another decision of the Division Bench is also made, the contention raised by the Insurance company to avoid liability on account of remarriage of wife of the deceased was expressly negatived.
10. However, Mr.Parikh, learned counsel appearing for the respondent insurance company by relying upon the decision of the Apex Court in the case of Anju Mukhi & Anr. v. Satish K. Bhatia & Ors.
Page 8 of 11 C/FA/397/2015 ORDERreported at (2010) 15 SCC 630 contended that the Apex Court had approved the view of the High Court of Madhya Pradesh in the case of parties before the High Court reported at 1998 ACJ 400.
11. The examination of the said contention shows that the High Court of Madhya Pradesh in its decision at paragraph 3, recorded the fact that the income of the husband was Rs.1,500/per month and further took note of the fact that the wife of the deceased had admitted in the crossexamination that she is happy with the marital life. It is in light of the facts and circumstances, the view was taken by the High Court was not interfered with by the Apex Court. In the present case, no evidence has come on record about the income of the husband nor the satisfaction of the wife of the deceased about the quality of life after remarriage. Under these circumstances, the said decisions are of no help to the learned counsel for the insurance company."
7. Examining the contention further in light of the evidence on record, it appears that no material was produced to show that the income of the husband of the widow of the deceased after remarriage, nor any material was produced to show her wellbeing, on the aspect of dependency after remarriage. Under these circumstances, the contention raised cannot be accepted.
8. The next contention raised by the learned Counsel for the appellant on the aspect of dependency of the brother of the deceased, in our view, should meet with the same fate, inasmuch as the brother Page 9 of 11 C/FA/397/2015 ORDER of the deceased had preferred the claim petition and the evidence had come on record for the economic loss sustained by the wife of the deceased and the brother, including the loss of love and affection. No other evidence to the contrary was produced and except the possession of the land in the name of the brother, who was claimant No.2. Under these circumstances, it cannot be said that there was no evidence produced about the dependency of the brother upon the deceased. Hence, the said contention cannot be accepted.
9. No other contention is raised.
10. We may record that Mr.Gohil, learned Counsel appearing for the original claimants, under the instructions of his clients, had also declared that if the appellant Insurance Company agrees for payment of compensation as per the award of the Tribunal and the appeal is dismissed, the original claimants would not be desirous to prefer any appeal for enhancement of the compensation, nor any cross-objection for enhancement of compensation.
11. Mr.Mehta, learned Counsel for the appellant Page 10 of 11 C/FA/397/2015 ORDER Insurance Company states that the amount of compensation shall be deposited within a period of eight weeks from today.
12. In view of the aforesaid peculiar facts and circumstances, we find that no further observations deserve to be made for taking care of the interest of the original claimants, except that the aforesaid declarations shall be complied with.
13. In view of the aforesaid, the appeal is meritless and hence, dismissed.
(JAYANT PATEL, J.) (G.B.SHAH, J.) vinod Page 11 of 11