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2015 DIGILAW 195 (GUJ)

Oriental Insurance Co. Ltd. v. Kaliben Kaljibhai Damor

2015-02-16

G.B.SHAH, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. As the dispute involved in the present First Appeal as well as Cross Objections are in a very narrow compass, with the consent of the learned advocates appearing on behalf of the respective parties, the present First Appeal and the Cross Objections are taken up for final hearing today and both of them are disposed of by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, (Auxiliary), Dahod (hereinafter referred to as 'the tribunal') dated 18/06/2014 in MA.C.P. No.5020/2004 by which the learned tribunal has partly allowed the said Claim Petition and has awarded a total sum of Rs.18,30,272/- to the original claimants towards compensation under different heads for the death of the deceased Kaljibhai Damor with 6% interest thereon from the date of the Claim Petition till realization, the appellant herein-original opponent no.2-insurer of the Motor vehicle involved in the accident has preferred the present First Appeal. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal and in so far as awarding interest at the rate of 6% from the date of the application till realization, the original claimants have preferred the Cross Objections. 3. In a vehicular accident, which took place on 09/02/2002 the deceased, who at the relevant time traveling as pillion rider on the Motorcycle bearing No.GJ-20-C-2770, which at the relevant time was driven by original opponent no.1, died due to rash and negligent driving of the Motorcyclist-original opponent no.1. On appreciation of evidence, the learned tribunal has held original opponent no.1-driver of the Motorcycle sole negligent for the accident. The finding recorded by the learned tribunal holding the driver of the Motorcycle-original opponent no.1 is not challenged by the appellant herein. 3.1. On appreciation of evidence, the learned tribunal assessed the income of the deceased at Rs.6550/- per month and after deducting ?th towards the personal expenses of the deceased has considered the loss of dependency at Rs.5250/- per month and as the deceased was aged about 45 years applying the multiplier of 13, the learned tribunal has awarded Rs.8,17,440/- towards the loss of dependency/future loss of income and, thereafter, further adding 30% of the aforesaid, the learned tribunal has awarded the actual loss of dependency at Rs.10,62,672/-. Thereafter, the learned tribunal has awarded Rs.1 lakh each to two wives of the deceased under the head of loss of love and affection, Rs.1 lakh to original claimant no.10-mother of the deceased under the head of loss of love and affection and has further awarded Rs.2 lakhs each to original opponents nos.2 and 9-daughters of the deceased under the head of loss of love and affection i.e. in all additional amount of Rs.7 lakhs. Thus, by the impugned judgment and award, the learned tribunal has awarded a total sum of Rs.18,30,272/- with 6% interest thereon from the date of the application till realisation under different heads; Rs.10,62,672/- loss of dependency Rs.25,000/- pain, shock and suffering Rs.2,500/- attendant charges Rs.5,000/- Special Diet Rs.10,000/- Transportation charges Rs.25,000/- Funeral expenses Rs.11,30,272/- and has further given Rs.1 lakh to original claimant no.1-first wife of the deceased under the head of loss of love and affection; Rs.1 lakh to original claimant no.6-second wife of the deceased under the head of loss of love and affection; Rs.1 lakh to original claimant no.10-mother of the deceased towards loss of love and affection; Rs.2 lakhs to original claimant no.9-daughter of the deceased towards loss of love and affection and Rs.2 lakhs to original claimant no.2 towards loss of love and affection. Thus, in all has awarded Rs.18,30,272/- to the original claimants under different heads. 3.2. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal, both the appellant-Insurance Company as well as the original claimants have preferred the First Appeal as well as the Cross Objections. 4. Shri Dwivedi, learned advocate appearing on behalf of the appellant-original opponent no.1-Insurance Company has vehemently submitted that the learned tribunal has materially erred in awarding Rs.7 lakhs in all under conventional head of loss of love and affection to the original claimants nos.1, 2, 6, 9 and 10. It is vehemently submitted that the learned tribunal has materially erred in awarding the amount under the head of loss of love and affection individually to all the original claimants i.e. two wives, mother and two daughters. It is submitted that as such even if the original claimants are entitled to any amount under the head of loss of love and affection, in that case also, each and every individual claimant is not entitled to separate amount under the head of loss of love and affection. It is submitted that as such even if the original claimants are entitled to any amount under the head of loss of love and affection, in that case also, each and every individual claimant is not entitled to separate amount under the head of loss of love and affection. It is submitted that at the most the original claimants shall be entitled to in all Rs.1 lakh under the head of loss of love and affection and under the head of loss of consortium. Making the above submissions, it is requested to modify the impugned judgment and award passed by the learned tribunal. No other submissions have been made. 5. Shri M.T.M. Hakim, learned advocate appearing on behalf of the original claimants has vehemently submitted in support of his submissions to dismiss the First Appeal preferred by the Insurance Company and the Cross Objections filed by the original claimants that the learned tribunal has materially erred in awarding interest at the rate of 6% per annum from the date of the Claim Petition till realization. It is submitted that the learned tribunal has failed to consider the rate of interest prevailing at the time when the accident took place and considering the catena of decisions of the Hon'ble Supreme Court and this Court, the learned tribunal ought to have awarded the interest at the rate of 9% per annum from the date of the application till realization. 6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the finding recorded by the learned tribunal with respect to negligence of original opponent no.1 has not been assailed/challenged by the appellant-Insurance Company. Even the amount of Rs.10,62,672/- awarded by the learned tribunal towards loss of dependency is also not challenged by the Insurance Company. The First Appeal preferred by the Insurance Company is on the ground that the learned tribunal has materially erred in awarding a total sum of Rs.7 lakhs towards loss of love and affection to original claimant no.1-first wife of the deceased; original claimant no.6-second wife of the deceased; original claimant no.10-mother of the deceased and original claimants nos.2 and 9-daughters of the deceased. 6.1. 6.1. On the other hand it is the case on behalf of the original claimants that the learned tribunal has materially erred in awarding the interest at the rate of 6% from the date of the application till realisation and the learned tribunal has materially erred in not awarding any amount under head of loss of estate. 7. Having heard the learned advocates appearing on behalf of the respective parties, it appears that the impugned judgment and award passed by the learned tribunal awarding in all Rs.7 lakhs to original claimants nos.1, 2, 6, 9 and 10 under the head of loss of love and affection cannot be sustained. While awarding the compensation under the head of loss of love and affection, the learned tribunal has awarded individual and separate amount to each of the original claimants i.e. two wives, mother and two daughteRs. There is no such law that each claimants shall be entitled to separate amount under the head of loss of love and affection. The original claimants jointly shall be entitled to compensation under the head of loss of love and affection. However, each and ever claimants shall not be entitled to any amount towards loss of love and affection separately and individually. Under the circumstances, as such, the learned tribunal has materially erred in awarding in all Rs.7 lakhs to the original claimants under the head of loss of love and affection. As per the decision of the Division Bench of this Court in the case of National Insurance Co. v. Gordhanbhai Damjibhai Nakum rendered in First Appeal No.3894/2006, which has been delivered after considering various decisions of Hon'ble the Supreme Court on the issue has held that the original claimants shall be entitled to in all Rs.1 lakh under the head of loss of love and affection and consortium. 8. The learned tribunal has also materially erred in awarding interest at the rate of 6% per annum from the date of the application till realization. Considering the catena of decisions of Hon'ble the Supreme Court as well as this Court and the rate of interest prevailing at the time when the accident took place i.e. in the year 2002, the original claimants shall be entitled to the interest at the rate of 9% per annum from the date of the application till realization. Considering the catena of decisions of Hon'ble the Supreme Court as well as this Court and the rate of interest prevailing at the time when the accident took place i.e. in the year 2002, the original claimants shall be entitled to the interest at the rate of 9% per annum from the date of the application till realization. Thus, to the aforesaid extent, the impugned judgment and award passed by the learned tribunal is required to be modified and both the First Appeal as well as the Cross Objections are required to be partly allowed to the aforesaid extent. 9. In view of the above and for the reasons stated herein above, the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, (Auxiliary), Dahod dated 18/06/2014 in MA.C.P. No.5020/2004 is hereby modified to the aforesaid extent and it is held that the original claimants shall be entitled to a total sum of Rs.12,30272/- towards compensation under different heads for the death of the deceased with interest at the rate of 9% per annum from the date of the application till realization, which shall be recovered from the original opponents, including the appellant here-in-original opponent no.2. The present First Appeal and Cross Objections are partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. 9.1. It is reported that the Insurance Company has deposited Rs.12,30,272/- with interest at the rate of 6% per annum. In view of the present order, the Insurance Company is required to deposit the balance amount considering the interest at the rate of 9% per annum on the aforesaid amount of Rs.12,30,272/- to be deposited with the learned tribunal within a period of six weeks from today. In view of disposal of First Appeal No.123/2015, no order in Civil Application No.525/2015 and the same stands disposed of accordingly. Appeal partly allowed.