Gujarat High Court
United India Insurance Co. Ltd vs Madhuben Widow Of Ambalal Harijan on 16 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/FA/2425/2007 JUDGMENT DATED: 16/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2425 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE CO. LTD.
Versus
MADHUBEN WIDOW OF AMBALAL HARIJAN & 7 other(s)
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Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
for the Defendant(s) No. 8
MR BS PATEL(602) for the Defendant(s) No. 1,2,3,4,5
MRS RANJAN B PATEL(646) for the Defendant(s) No. 1,2,3,4,5
RULE SERVED for the Defendant(s) No. 6,7
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 16/06/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the impugned Award dated 18.11.2006 passed by the Motor Accident Claims Tribunal (Auxi), Vadodara at Vadodara passed in MACP No. 423 of 1996, whereby the petition of the respondent has Page 1 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 been allowed by the tribunal, directing the present appellant alongwith other respondents thereof to pay Rs. 7,29,880/- alongwith interest at the rate of 7.5% from the date of filing of the application till the realisation thereof along with interest, the Insurance Company has preferred this First Appeal on the following grounds:
I. The tribunal has committed error in coming to the conclusion that the accident was caused due to negligence of the tanker driver.
II. The Tribunal ought to have held that the accident was caused due to sole negligence of the deceased bicyclist and the fact that had the bicyclist driven his bicycle on the correct side of the road and not ventured on the middle of the road, the accident would never had occurred.
III. That alternatively the Tribunal ought to have held that the accident was caused due to composite negligence wherein the deceased was a larger contributory.
IV. That the award is on higher side and the Tribunal has committed error in considering the dependency benefit as well as awarding the amount on other heads.
V. That the Tribunal has wrongly relied upon the deposition of Mr. Niranjan Patel, alleged Accountant of the Company, wherein the deceased was serving. That there was no evidence produced on record to show that the deceased was working in the said Page 2 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 Company.
VI. That the multiplier factor is also not proper and award of Rs. 71,280/- as PF loss is also against the evidence on record and the amount of loss of gratuity of Rs. 39,600/- is also not proper. It is also contended that interest ought not to have been awarded at the rate of 7.5%.
2. Heard Mr. V.C.Thomas, learned advocate for the appellant and Mr. Chirag Patel, learned advocate for the respondents.
3. Learned advocate for the appellant has vehemently submitted the same facts which are narrated in the Memo of Appeal and has submitted that the Tribunal has erred in passing the impugned award. According to him, the contributory negligence of the deceased ought to have been considered by the Tribunal. It is also contended that if the Court comes to the conclusion that the accident has occurred due to sole negligence on the part of the Tanker driver, even in that case, the amount of award is on higher side and the multiplier has also not been properly applied and the interest rate needs to be reduced. He has relied upn the decision in case of National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680, especially para- 59.4. He has also submitted that deduction towards personal expenses by the deceased should be considered as one- fourth and the multiplier ought to have been considered as
15. He has prayed to pass appropriate order accordingly.Page 3 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022
C/FA/2425/2007 JUDGMENT DATED: 16/06/2022
4. Per contra, Mr. Chirag Patel, learned advocate for the claimants has vehemently submitted that the present Appeal needs to be dismissed as the Tribunal has properly considered the evidence on record and has not committed any error of facts and law in passing the impugned award. It is also contended that the interest ought to have been allowed at the rate 12% instead of 7.5% and to that effect interest may be enhanced by rejecting the present First Appeal. The learned advocate for the respondent has relied upon the following decisions, in support of his arguments:
1. Sarla Verma & Ors. v. Delhi Transport Corporation & Another, reported in (2009) 6 SCC 121,
2. State of Haryana & Another v. Jasbit Kaur & Ors, reported in (2003) 7 SCC 484
3. New India Assurance Co. Ltd. v. Charlie and Another, reported in (2005) 10 SCC 720 4.1 In the case of State of Haryana & Another v. Jasbit Kaur & Ors (Supra), the observation made in Para-8 thereof, reads as under:
"8. It is clear on a bare reading of the Tribunal's decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to Page 4 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs.4500 per month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about "just compensation" the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life, and the matter was pending before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauzing the relevant aspects, noted above, the monthly income is fixed at Rs.3000/- per month, and after deducting Rs.1,000/- for personal expenses, financial contribution so far as the claimants are concerned is fixed at Rs.2,000/- per month. Worked out on the basis of multiplier of 18, the compensation is fixed at Rs.4,32,000/-. The amount of Rs.2,000/- awarded by the Tribunal for funeral expenses is not interfered with and thus the total compensation comes to Rs.4,34,000/-. The rate of interest i.e. 9% per annum as fixed by the Tribunal and affirmed by the High Court is appropriate, and does not need any alteration. After adjusting the sum which was deposited pursuant to the order of this Court dated 14.12.2001, the balance amount along with interest shall be deposited within three months from today before the Tribunal. On the deposit being made along with the amount already deposited, a sum of Rs.3 lakhs shall be kept in the fixed deposit in the name of the claimants and a sum of Rs.50,000/- shall be kept in fixed deposit in the Page 5 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 name of Smt. Baldev Kaur, mother of the deceased. They shall be entitled to draw interest on the deposit, which shall be re-deposited for further terms of five years. In case of urgent need, it shall be open to the claimants to move Tribunal for release of any part of the amount in deposit. The Tribunal shall consider the request for withdrawal and shall direct withdrawal in case of an urgent need and not otherwise of such sum as would meet the need. It shall be specifically indicated to the Bank where the deposits are to be made that no advance or withdrawal of any kind shall be permitted without the order of the Tribunal. It shall be open to the claimants to approach the Tribunal for variance of the order relating to deposit in fixed deposit, if any other scheme would fetch better returns and also would provide regular and permanent income".
4.2 In case of New India Assurance Co. Ltd. v. Charlie and Another (Supra), wherein observation made in Paras- 18 and 19 read as under:
"18. The claimant was deriving income from agriculture.
19. Normal rule about the deprivation of income is directly not applicable to cases where agricultural income is the source of deceased's or injured's income. In that case other circumstances have to be considered".
5. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the impugned award, it appears that there is no dispute regarding the happening of the accident between the Tanker bearing registration No. GTJ-6926 and the bicycle on Page 6 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 26.12.1995. The involvement of the vehicle is established by the oral as well as documentary evidence on record. It also reveals from the evidence that at the time of accident, the deceased was a rider of the bicycle and was about 40 years of age. It also reveals from the record that the deceased had died due to the accident happened by the negligence of Tanker driver. It is also revealed that the deceased had accidentally died on the spot and the same is reflected from the Post-mortem Report and Panchnama. Thus, the factum of accident is proved by the evidence.
6. Now, so far as the income of the deceased is concerned, the Tribunal has relied upon the evidence of Mr. Niranjan Patel, who is an employee of the Company wherein the deceased was working. During his deposition, he has stated that the deceased was serving in Polychem Company from 1.8.1977 and had he not died in the accident, his salary would have been Rs. 6943/- and he would have also got gratuity as well as PF. During his deposition, he has submitted the statement at Exh-26 regarding this factors. On the basis of this evidence, the Tribunal has considered the income of the deceased as Rs.4500/- and out of it, one-fourth came to be deducted towards his personal expenses i.e. Rs.1200/-, the dependency amount has been considered Rs3300/- . It appears that there is some error in considering the income of the deceased as the claimant in his evidence has admitted that at the time of accident, her husband was getting salary of Rs.1500/- per month. Therefore, the salary of the deceased should be considered as Rs.1500/- and 50% Page 7 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 thereof can be considered for addition towards future income i.e. Rs.750/- p.m. and on doing so the prospective monthly income would come to Rs.2250/- and yearly it would be Rs.27000/-. Considering the family member of the deceased, out of his income, one-fourth needs to be deducted towards his personal expenses. On doing so, amount of Rs.6750/- p.a. needs to be deducted from an yearly prospective income of Rs.27,000/-. As such, the amount of dependency would come to Rs.20,250/- p.a. (Rs. 27,000 - Rs. 6750) Now, considering the age, multiplier of 18 is higher side, but, multiplier of 15 would be applicable. Therefore, the amount of loss of dependency would come to Rs.3,03,750/- . In addition to that the claimants are entitled for convention amount for loss of consortium Rs.20,000/- , Funeral expenses Rs.5000/- and the loss of gratuity as well as PF. Therefore, the total amount of compensation would come as under:
1. Rs. 3,03,750/- towards loss of dependency benefit;
2. Rs. 20,000/- towards conventional amount for loss of consortium;
3. Rs. 5,000/- towards Funeral Expenses;
4. Rs. 71,280/- towards PF;
5. Rs. 39,600/- towards Gratuity.
______________ Rs.4,39,630/-
i.e. Rs.4,40,000/- (Round figure) 6.1 The claimants are entitled for the aforesaid amount along Page 8 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022 C/FA/2425/2007 JUDGMENT DATED: 16/06/2022 with interest. The rate of the interest which has been awarded by the Tribunal is proper and no interference is required.
7. Considering the facts and circumstances of the case, the present Appeal is partly allowed. The impugned award is hereby modified to the extent that the claimants are entitled to get the compensation of Rs.4,40,000/- instead of Rs.7,29,880/- as awarded by the tribunal. The interest payable thereon will be 7.5% p.a. from the date of filing of the application till the actual payment thereof, with proportionate costs.
The excess amount, if deposited by the Appellant, to be refunded to it along with proportionate interest thereof.
The parties are directed to bear the cost of this appeal respectively. The award of the Tribunal shall stand modified to the aforesaid extent.
Award to be drawn in this appeal accordingly.
Along with copy of this judgment and award, R&P, if any, to be sent back to the Tribunal accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 9 of 9 Downloaded on : Sat Dec 24 18:55:13 IST 2022