Oriental Insurance Co. Ltd vs Shatrudhanbhai Dwarkadas Mandani & 6 on 2 May, 2014

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Gujarat High Court

Oriental Insurance Co. Ltd vs Shatrudhanbhai Dwarkadas Mandani & 6 on 2 May, 2014

1. Heard Mr. Sunil Parikh, learned advocate for Mr. Rajni Mehta, learned advocate for the appellant in each of the appeals, Mr. Anand Gogia, learned advocate for the respondents No.1 and 2 and Mr. H.G. Mazmudar, learned advocate for the respondent No.7 in all the appeals. Having regard to the submissions advanced by the learned advocates for the respective parties, the court is of the view that the appeals require consideration, hence, admit.

2. Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned advocates for the respective parties, the appeals were taken up for final hearing and are disposed of by this common judgment.

3. These appeals under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") are directed against the common judgment and award dated 29 th June, 2013 passed by the Motor Accident Claims Tribunal (Main), Rajkot (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petitions No.1147/2004, 1148/2004 and 587/2005 respectively.

4. The facts giving rise to the present appeals are that on 7th November, 2003, at about 11.30 p.m., an accident involving collision between three vehicles being a truck bearing No.GJ-10-6543, a tanker bearing No.G.T.S. 8239 and a Santro car bearing No.GJ-3-AB-17 took place on the Rajkot- Jamnagar Highway near village Taraghadi near Rajkot. The deceased Shatrudhan Dwarkadas Mandani alongwith his wife Page 2 of 17 C/FA/3082/2013 JUDGMENT Shilaben Shatrudhan Mandani and her sister Dipti Atmaram as well as their daughter Gayatri were travelling in the car when on account of the accident, Shatrudhanbhai, Shilaben and Diptiben sustained grievous injuries and died on the spot and Gayatri, their daughter, sustained serious injuries. The legal heirs of the deceased preferred the above referred claim petitions before the Tribunal under section 166 of the Motor Vehicles Act. All the claim petitions were clubbed together and were disposed of by a common judgment and award.

5. It was the case of the claimants in the claim petitions that on 7th November, 2003, at about 11:30 p.m., deceased Shatrudhanbhai Dwarkadas, his wife Shilaben, daughter Gayatri and sister-in-law Dipti Atmaram had gone for a ride in a Santro car bearing No.GJ-3-AB-17, which was driven by the deceased Shatrudhanbhai. According to the claimants, a truck bearing No.GJ-10-6543 was lying in a stationary condition near village Taraghadi, Rajkot on account of which the Santro car was parked behind it as there was no other way to overtake the truck. Meanwhile, the offending tanker bearing No.G.T.S. 8239, came from the rear side and dashed against the Santro car with such intensity that the car rammed into the stationary truck and Shatrudhanbhai, Shilaben and Dipti Atmaram lost their lives and died on the spot whereas Gayatri sustained grievous injuries. One Jaykant Harjivanbhai Vayda who was a passenger in the bus coming from behind the tanker reported the incident to the Padadhari Police Station and took injured Gayatri to the hospital. A first information report came to be registered in connection with the accident and panchnama of the scene of incident came to be drawn. The cleaner and driver of the tanker fled from the spot, leaving Page 3 of 17 C/FA/3082/2013 JUDGMENT the tanker in an abandoned position at the place of the accident.

6. The claimants claimed compensation of Rs.15,00,000/- in Claim Case No.1147/2004 in relation to the death of Shatrudhanbhai Dwarkadas Mandani, Rs.10,00,000/- in Claim Case No.1148/2004 in relation to the death of Shilaben Shatrudhanbhai Mandani and Rs.15,00,000/- in Claim Case No.587/2005 in relation to the death of Diptiben Atmaram. The Tribunal after appreciating the evidence on record came to the conclusion that the accident had occurred solely on account of the rash and negligent driving on the part of the driver of tanker No.G.T.S. 8239.

7. Insofar as Motor Accident Claim Petition No.1147/2004 is concerned, since the date of birth of Shatrudhanbhai was 23rd May, 1959, the Tribunal considered his age to be 44 years. On the basis of the evidence adduced on record, the Tribunal assessed the annual income of the deceased at Rs.75,000/- and adding 50% thereof for the purpose of computing the future prospective income, computed the prospective annual income at Rs.1,12,500/-. The Tribunal deducted 1/3rd towards personal expenses of the deceased and accordingly computed the net dependency loss at Rs.75,000/-. The Tribunal applied a multiplier of 14 and computed the total dependency loss at Rs.10,50,000/-. The Tribunal awarded Rs.1,00,000/- towards loss of love and affection as well as loss to estate and Rs.10,000/- towards funeral expenses. In all, the Tribunal awarded compensation of Rs.11,60,000/-.

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            C/FA/3082/2013                                        JUDGMENT



8.             Insofar      as     Motor         Accident       Claim       Petition

No.1148/2004 is concerned, the date of birth of Shilaben was 2nd January, 1969 and the accident had taken place on 7 th November, 2003, hence the age of the deceased at the time of the accident was taken to be 34 years. On the basis of the evidence on record, the Tribunal considered the monthly income of the deceased to be Rs.3,500/- and adding 50% thereto, computed the prospective monthly income at Rs.5,250/-. After deducting 1/3rd towards personal expenses, the Tribunal computed the net dependency loss at Rs.3.500/- per month and the annual dependency loss at Rs.42,000/-. The Tribunal applied a multiplier of 14 and accordingly, worked out the total dependency loss at Rs.5,88,000/-. The Tribunal also awarded Rs.1,00,000/- under the combined head of loss of love and affection and loss to estate and Rs.10,000/- towards funeral expenses. The Tribunal, accordingly awarded a total compensation of Rs.6,98,000/-.

9. In relation to Motor Accident Claim Petition No.587/2005, the Tribunal found that the age of the deceased at the time of the accident was 21 years. On the evidence on record, the Tribunal assessed the monthly income of the deceased at Rs.3,000/- and computed the prospective income at Rs.4,500/- per month. The Tribunal deducted 1/3 rd towards personal expenses of the deceased and accordingly computed the net dependency loss at Rs.3,000/- per month and annual dependency loss at Rs.36,000/-. Considering the average age of the parents viz. 67 and 60 years, the Tribunal applied a multiplier of 6 and computed the total dependency loss at Rs.2,16,000/-. The Tribunal also awarded Rs.1,00,000/- under the combined head of loss of love and affection and loss to Page 5 of 17 C/FA/3082/2013 JUDGMENT estate and Rs.10,000/- towards funeral expenses. In all, the Tribunal awarded compensation of Rs.3,26,000/-.

10. Being aggrieved, the insurance company is in appeal.

11. Mr. Sunil Parikh, learned advocate for Mr. Rajni Mehta, learned advocate for the appellant in each of the appeals assailed the impugned award firstly on the ground that the Tribunal had failed to appreciate the evidence on record in proper perspective while holding the driver of the tanker to be solely liable for causing the accident. Referring to the first information report and the panchnama of the scene of incident, it was submitted that the deceased driver of the car was negligent in parking the car during the night on the National Highway without any parking lights and hence, the driver of the tanker cannot be found fault with. It was submitted that the National Highway is a busy road with vehicles coming from the opposite side, therefore, it was not possible for the driver of the tanker to see the stationary vehicle without any parking lights. It was submitted that, therefore, the driver of the car as well as the driver of the stationary truck in front of the car were also negligent and hence the driver of the tanker ought not to have been held solely liable for the accident.

12. On the other hand, Mr. Anand Gogia, learned advocate for the respondents No.1 and 2 - claimants submitted that the Tribunal has appreciated the evidence on record in proper perspective while arriving at the conclusion that the accident has been caused on account of the Page 6 of 17 C/FA/3082/2013 JUDGMENT negligence on the part of the tanker driver alone. The attention of the court was drawn to the panchnama of the scene of accident as well as the deposition of Gayatri who was an eye- witness, to submit that the totality of the evidence which has come on record leads to the inevitable conclusion that it is only the tanker driver who was responsible for the causation of the accident and hence, the Tribunal did not commit any error in holding the tanker driver alone to be responsible for the accident.

12.1 On the question of quantum of compensation, the learned advocate submitted that the interest awarded by the Tribunal at 8% is on the lower side and the Tribunal ought to have awarded interest at the rate of 12%. In support of his submission, the learned counsel placed reliance upon two decisions of the Supreme Court in the case of Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735 and Puttamma and others v. K.L. Narayana Reddy and another, AIR 2014 SC 706, wherein the court has awarded interest at the rate of 9% and 12% per annum, respectively.

13. In the backdrop of the facts and contentions noted hereinabove, the first question that arises for consideration is as to whether the accident had been caused also on account of contributory negligence on the part of the driver of the Santro car as well as the stationary truck. In this regard, it may be germane to refer to the documentary evidence on record. The first information report being Morbi Division Police Station I- C.R. No.109/2003 has been lodged by one Jaykant Harjivanbhai Vayda. He is not an eye-witness and has merely reported the Page 7 of 17 C/FA/3082/2013 JUDGMENT happening of the accident. He, however, has stated that when he reached the scene of incident, he had found that three of the occupants of the Santro car had expired and that the daughter Gayatri was injured. The panchnama of the scene of incident reveals that the accident has taken place on a tar road and on the centre as well as on both the sides of the road, there are wide parallel lines. On the left side of the road in the direction towards Padadhari, there is a truck behind which there is a Santro car, and behind the Santro car there is a tanker. All the vehicles are lying in the same position as when the accident had taken place. The truck bears the No.GJ-10- 6543 and miscellaneous goods are loaded thereon. Behind the truck, there is a Santro car bearing No.GJ-3-AB-17. The entire car has been crushed into pieces and there are blood stains on the dashboard, steering as well as the seats of the car. Behind the car, there is a blue-coloured Ashok Leyland tanker. The tanker bears the No.G.T.S. 8239. Behind the tanker, pieces of glass of the headlight of the Santro are scattered and behind the tanker, from the direction of Rajkot for a distance of 15 feet, there are marks of the Santro car having been dragged on the road. There are no signs on the road indicating that the brakes of the tanker have been applied. There is an Indica car lying on the opposite side of the road in the gutter.

14. Gulshan @ Gayatri, daughter of deceased Shatrudhan Dwarkadas Mandani has been examined at Exh.115. She, in her deposition, has stated that on 7 th November, 2003 between 10:30 to 11:00 o'clock at night, she, her mother and father and maternal aunt had gone for a drive in the Santro car, her maternal grandmother was alone at home and her brother Suraj had gone out. Her deceased father Page 8 of 17 C/FA/3082/2013 JUDGMENT was driving the car and her mother was sitting beside him and she and her deceased aunt were sitting on the backseat. While they were going on the Jamnagar road and were at a slight distance from Rajkot, tanker No.G.T.H. 8239 dashed against their car, as a result whereof the car rammed into a truck in front of it and the tanker climbed on the car on account of which all of the passengers in the car sustained injuries and were bleeding. That her deceased mother, father and aunt were not speaking. In the meanwhile, many people gathered there and they pushed the tanker and took her out of the car with great difficulty. She was also injured and hence, an unknown person took her to Rajkot and got her admitted to the Gondhiya Hospital. She has further deposed that a truck was standing in front of the Santro car and it was not possible to go ahead and hence, her father had parked the car on the left side of the road at a distance of 10 feet from the truck and had kept the front lights on. She has further stated that when the front lights are on, the rear lights would automatically be on. Since there was a truck in front, it was not possible to go ahead. In the meanwhile, the tanker driver came in full speed, in a rash and negligent manner and dashed against the Santro car and caused the accident. That the speed of the tanker was so excessive, that the Santro car was pushed into the truck lying in front and the tanker climbed on top of the Santro car. The said witness has been cross-examined by the learned advocate for the insurance company; however, he has not been able to dislodge what she has stated in her examination- in-chief.

15. The driver of the tanker, Pravinbhai Jivanbhai Katara, has been examined at Exh.124. He has deposed that Page 9 of 17 C/FA/3082/2013 JUDGMENT the Rajkot-Jamnagar road is a single road and that there was a lot of continuous traffic on the said road. On the date of the accident, he was driving the tanker at a moderate speed of 50-

55. When he reached near Taraghadi, there was traffic on the road and the road being a single road, and since there were vehicles coming from the opposite side, he was driving behind the vehicle which was going ahead of the tanker. That he had maintained a distance of 15 feet between the tanker and the vehicle going in front. At the time of the accident, a Santro car was going in front of him, which he came to know only after the accident occurred. He is not aware as to which vehicle was in front of his vehicle and he is not aware that the vehicle going in front of him suddenly applied the brakes and, therefore, his vehicle had collided with the said vehicle. He has stated that he is not in a position to say as to whether or not the lights of the vehicle in front were on. According to him, since the vehicles coming from the opposite side had full lights on, he was dazzled. He has stated that he was not trying to overtake the Santro car in front of him and that he had applied the brakes to prevent the accident. He has further stated that there was little distance between the two vehicles and hence despite his applying brakes, the accident had occurred. That the Santro car in front of him had collided with another vehicle, however, he was not aware as to which vehicle was in front of the Santro car. In his deposition, it has further come out that after the accident he had gone away from the scene of accident. According to the said witness, he had not fled from the scene of accident, but had gone to inform his employer about the same.

16. From the panchnama of the scene of incident, it is Page 10 of 17 C/FA/3082/2013 JUDGMENT evident that the Santro car was dragged up to a distance of 15 feet, which fact is supported by what is stated by witness Gayatri, viz., that the car was parked at a safe distance behind the truck. It appears that the offending tanker came with excessive speed and dashed with such great intensity with the Santro car that the stationary car was pushed into the stationary truck in front of it and the tanker climbed on top of the Santro car, thereby sandwiching it between the two vehicles, as a result whereof it was totally crushed. The version given by the tanker driver that he was driving the vehicle at a moderate speed of 50-55 kilometres per hour is apparently far from the truth because if he had been driving it at such moderate speed, the accident would not have happened in this manner. The Tribunal has, after discussing the evidence threadbare, assigned sufficient, cogent and convincing reasons in support of the finding that the accident had occurred solely on account of the negligence on the part of the driver of the tanker. The view adopted by the Tribunal, apart from being a plausible view, on the evidence on record appears to be the only view that could have been taken. Therefore, the contention that the driver of the tanker was not solely negligent for causing the accident, does not merit acceptance.

17. So far as the question of quantum of compensation is concerned, each of the claim petitions is required to be examined separately.

18. Motor Accident Claim Petition No.1147/2004 - On behalf of the appellant, it has been contended that the deceased Shatrudhanbhai being 44 years of age, the Tribunal could not have computed the future prospective income by Page 11 of 17 C/FA/3082/2013 JUDGMENT adding 50% of the actual income of the deceased. It was submitted that the Supreme Court in the case of Sarla Verma and Others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121, has laid down that where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts shall usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. It was submitted that in the facts of the present case, no such rare or exceptional circumstance had been made out and hence, the Tribunal was not justified in assessing the future prospective income of the deceased. It was submitted that even in terms of the decision of the Supreme Court in the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54, at best, 30% of the actual income of the deceased could have been added for the purpose of computing the prospective income.

18.1 As can be seen from the impugned award, the age of the deceased admittedly was 44 years at the time of his death. The Supreme Court in the case of Rajesh v. Rajbir Singh (supra) has held that in case where the deceased was self-employed or a person with fixed wages, if he was below 40 years, there must be an addition of 50% to his actual income while computing future prospects and in case where he was in the age group of 40-50 years, the addition should be of 30%. In the present case, the learned advocate for the respondents - claimants is not in a position to dispute that the deceased was not between 40-50 years. Under the circumstances, applying the principles laid down by the Supreme Court in Rajesh v. Rajbir Singh (supra), this court is of the view that the Tribunal Page 12 of 17 C/FA/3082/2013 JUDGMENT ought to have added 30% of the actual income instead of 50% of the actual income while considering the future prospective income of the deceased.

18.2 Another contention raised on the question of quantum of compensation is that the compensation of Rs.1,00,000/- under the heads of loss of love and affection and loss to estate is excessive. As can be seen from the impugned award, the Tribunal has, insofar as non-pecuniary heads are concerned, clubbed two heads namely, loss of love and affection and loss to estate and has awarded Rs.1,00,000/-. Having regard to the fact that the applicants herein were both minors and had lost both their parents at a single stroke in the tragic accident, in the opinion of this court, the amount of Rs.1,00,000/- awarded under the combined heads of loss of love and affection and loss to estate cannot, in any manner, be said to be excessive having regard to the recent trend of decisions of the Supreme Court.

19. Motor Accident Claim Petition No.1148/2004 - The Tribunal has considered the age of the deceased Shilaben to be 34 years. The award passed by the Tribunal has been assailed by the appellant on the ground that the assessment of the income of the deceased by the Tribunal is without any basis. Mr. Parikh, learned advocate for the appellant has submitted that from the income-tax returns of the deceased, it is apparent that the deceased did not have any business income and as such, there was no loss caused to the claimants in respect thereof. It was accordingly urged that the income of the deceased assessed at Rs.5,250/- by considering prospective income is excessive.

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         C/FA/3082/2013                            JUDGMENT




19.1        On the other hand, Mr. Anand Gogia, learned

advocate for the respondents - claimants submitted that considering the age of the deceased, the Tribunal ought to have applied a multiplier of 15 in terms of the decision of the Supreme Court in the case of Sarla Verma (supra). However, the Tribunal has applied a multiplier of 14 hence, the impugned award is required to be modified and the compensation awarded is required to be enhanced to that extent.

19.2 A perusal of the record and proceedings of the case reveals that as per the income-tax returns of the years 2000- 2001 and 2001-2002, the deceased had income only from other sources and no business income. The Tribunal has considered that the deceased was a helping hand in the business of stock trading and was also bringing up her children and has accordingly considered the income of the deceased at Rs.3,500/- per month. The Tribunal has thereafter added 50% of the said income to compute the prospective income. In the opinion of this court, insofar as the income of a housewife is concerned, the question of grant of prospective income would not arise. Therefore, even if the deceased can be said to have been a helping hand in the business of stock trading, her income in relation to such business would be limited and hence, the prospective income could not have been computed by adding 50% of the entire income as assessed by the Tribunal. On the other hand, the Tribunal has wrongly applied a multiplier of 14 whereas it ought to have applied a multiplier of

16. However, having regard to the fact that the Tribunal has considered the prospective income including income of the housewife, the court is of the view that there is no warrant for Page 14 of 17 C/FA/3082/2013 JUDGMENT interference, inasmuch as, in case the multiplier is increased to 16, correspondingly, the court would be required to decrease the future prospective income as computed by the Tribunal.

19.3 The appellant has also assailed the award of the Tribunal to the extent Rs.1,00,000/- had been granted under the combined heads of loss of love and affection and loss to estate. For the reasons stated in relation to Motor Accident Claim Petition No.1147/2004, the said contention is repelled.

20. Motor Accident Claim Petition No.587/2005 - In this case, the age of the deceased was 21 years. The Tribunal has assessed the monthly income of the deceased at Rs.3,000/- per month and has computed the prospective income at Rs.4,500/- per month. However, the Tribunal has computed the dependency loss by deducting 1/3rd of the income towards personal living expenses, whereas having regard to the fact that the deceased was unmarried, in the light of the principles laid down by the Supreme Court in Sarla Verma (supra) the Tribunal ought to have deducted 50% thereof.

20.1 Insofar as the challenge to the amount of Rs.1,00,000/- having been awarded under the non-pecuniary heads of loss of love and affection and loss to estate, the record of the case reveals that the claimant is the mother of deceased Shilaben as well as deceased Diptiben. It appears that because of the vehicular accident, the claimant had lost both her daughters in one single stroke and does not have any other children. True it is that in respect of the death of Shilaben, the claimant has not made any claim and it is only Shilaben's children who are claimants in the claim petition filed Page 15 of 17 C/FA/3082/2013 JUDGMENT in respect of her death. Nevertheless, the claimant has lost both her daughters in the very same accident. Therefore, in the peculiar facts and circumstances of the present case, it is not possible to state that the Tribunal committed any legal error in awarding Rs.1,00,000/- under the combined heads of loss of love and affection and loss to estate.

21. In the light of the above discussion, First Appeal No.3082/2013 succeeds and is accordingly allowed to the following extent. The dependency loss is computed as under:

Annual income               =       Rs.75,000/-
Prospective income          =       Rs.75,000/- + 30%
                            =       Rs.75,000/- + Rs.22,500/-
                            =       Rs.97,500/-
Annual dependency loss      =       Rs.97,500/- x 1/3rd
                            =       Rs.65,000/-
Total dependency loss       =       Rs.65,000/- x 14
                            =       Rs.9,10,000/-
Loss of love and affection =        Rs.1,00,000/-
Funeral expenses            =       Rs. 10,000/-
Total Compensation          =       Rs.10,20,000/-

The impugned award shall stand modified accordingly.

22. For the reasons stated hereinabove, First Appeal No.3083/2013 is hereby dismissed.

23. First Appeal No.3084/2013 is hereby allowed to the following extent.

Monthly income              =       Rs.3,000/-

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         C/FA/3082/2013                                JUDGMENT



Future prospective income =         Rs.4,500/-
Loss of dependency           =      Rs.4,500/- - 50% = Rs.2,250/-
Annual income                =      Rs.2,250/- x 12 = Rs.27,000/-
Total dependency loss,       =      Rs.27,000/- x 6 (multiplier)
                             =      Rs.1,62,000/-
Loss of love and affection
and loss to estate           =      Rs.1,00,000/-
Funeral expenses             =      Rs. 10,000/-
Total compensation           =      Rs.2,72,000/-

The impugned judgment and award shall stand modified accordingly.

24. The appellant has deposited the entire awarded amount with the Tribunal. The Tribunal shall pass necessary orders for disbursement in terms of this order. The balance amount shall be refunded to the appellant with accrued interest thereon.

25. The Registry shall forthwith send back the record and proceedings of the case.

( Harsha Devani, J. ) hki Page 17 of 17

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