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2016 DIGILAW 1225 (GUJ)

Rubirai Bholarai Kurmi v. Bhala Ala Shivrajbhai

2016-07-01

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. As common question of law and facts arise in all these appeals, and as such they arise out of the impugned judgment and award passed by the learned tribunal and as such First Appeal No. 1005 and 1006 of 2016 are cross appeals, all these appeals are decided and 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), Gandhidham-Kutch in Motor Accident Claim Petition No. 81 of 2011, original claimants have preferred First Appeal No. 1005 of 2016 requesting to enhance the amount of compensation awarded by the learned tribunal. 2.1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhidham-Kutch in Motor Accident Claim Petition No. 185 of 2011, original claimants have preferred First Appeal No. 1006 of 2016 requesting to enhance the amount of compensation awarded by the learned tribunal. 2.2. Feeling aggrieved and dissatisfied with the aforesaid judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhidham-Kutch in Motor Accident Claim Petition Nos. 81 and 185 of 2011, in so far as holding the driver of the truck bearing No. GJ-12-X-0096 50% contributory negligent, original opponent No. 5 - Reliance General Insurance Company Limited - Insurance Company of the truck involved in the accident, original opponent No. 5 has preferred First Appeal Nos. 271 of 2016 and First Appeal No. 272 of 2016. 3. At the outset, it is required to be noted that as such there is a broad consensus between the learned advocates appearing on behalf of the respective parties that as other claim petitions arising out of the very accident are pending with the learned tribunal, and as such the findings recorded by the learned tribunal holding the driver of both the vehicles involved in the accident 50% contributory negligent is without assigning any reason and/or without appreciating the evidence on record, let the matters be remanded to the learned tribunal to decide the issue of negligence/contributory negligence of the drivers of the respective vehicles involved in the accident. However, such remand shall not be with respect to amount of quantum of compensation qua original claimants and the remand is restricted with respect to issue of negligence/contributory negligence only. 4. However, such remand shall not be with respect to amount of quantum of compensation qua original claimants and the remand is restricted with respect to issue of negligence/contributory negligence only. 4. The learned advocates appearing on behalf of the respective parties do not invite further reasoned order. However, the learned advocates appearing on behalf of the respective parties have requested to pass an order that the claim petitions arising out of the present First Appeals be heard along with other claim petitions arising out of the very accident and which are pending before the learned tribunal so as to avoid any conflicting and/or contradictory findings on the aspect of negligence/contributory negligence. 5. In view of above broad consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove, First Appeal Nos. 271 of 2016 and 272 of 2016 preferred by the original opponent No. 5 - Reliance General Insurance Company Ltd. are hereby partly allowed and the same are remanded to the learned tribunal to consider the issue of negligence/contributory negligence of the driver of the vehicles involved in the accident. However, the remand shall be with respect to issue of negligence/contributory negligence only and consequently with respect to inter-se liability of the Insurance Companies of both the vehicles involved in the accident and so far as the amount of compensation is concerned, the same shall be governed by the present judgment and order in First Appeal Nos. 1005 and 2006. 5.1. On remand, claim petitions arising out of the present First Appeals be heard along with other cognate claim petitions being Motor Accident Claim Petition Nos. 204/2011, 199/2011, 185/2011, 401/2011, 408/2011, 173/2011, 85/2015, 135/2011 and 136/2011, arising out of the very accident and pending before the learned tribunal. 5.2. The issue with respect to negligence/contributory negligence shall be considered and dealt with by the learned tribunal in accordance with law and considering the evidence on record already lead and without in any way being influenced by the present order. 6. Now, so far as First Appeal No. 1005 of 2016 arising out of Motor Accident Claim Petition No. 81 of 2011 is concerned, against total claim of Rs. 18,00,000/- the learned tribunal has awarded total sum of Rs. 6. Now, so far as First Appeal No. 1005 of 2016 arising out of Motor Accident Claim Petition No. 81 of 2011 is concerned, against total claim of Rs. 18,00,000/- the learned tribunal has awarded total sum of Rs. 8,13,000/- under different heads towards compensation for the death of the deceased as under:- Rs.7,68,000 Towards loss of dependency Rs.0,15,000 Towards loss of consortium Rs.0,25,000 Towards loss of estate Rs.0,05,000 Towards of funeral expenses Rs.8,13,000 Total compensation 6.1. Mr. Vishal Mehta, learned advocate appearing on behalf of the appellant - original claimants has vehemently submitted that the learned tribunal has materially erred in deducting 1/3rd towards personal expenses of the deceased while awarding future loss of income. 6.2. Mr. Vishal Mehta, learned advocate appearing on behalf of the original claimants has further submitted that the learned tribunal has materially erred in awarding Rs. 45,000/-under the conventional heads and funeral expenses. It is submitted that as per the catena of decisions of this Court, the claimants shall be entitled at least Rs. 1,10,000/- under conventional heads and funeral expenses. Therefore, it is requested to allow present First Appeal No. 1005 of 2015 arising out of Motor Accident Claim Petition No. 81 of 2011. 6.3. Mr. Vibhuti Nanavati, learned advocate appearing on behalf of the Reliance Insurance Company Ltd. and Mr. Maulik Shelat, learned advocate appearing on behalf of New India Assurance Company Ltd. have vehemently submitted that the learned tribunal has materially erred in considering the income of the deceased at Rs. 6000 per month. It is submitted that as per the Salary Certificate, actual income of the deceased at the time of accident was Rs. 5500/- per month. Therefore, they have requested to pass appropriate order and award just compensation. 6.4. Heard the learned advocates appearing on behalf of the respective parties at length. As per the Salary Certificate produced on record, the income of the deceased is required to be considered at Rs. 5500/- per month. As the deceased was aged 35 years, 50% was required to be added towards future rise in income. Thus, prospective income would come to Rs. 8250/- per month. Looking to the number of dependents, 1/4th is required to be deducted towards personal expenses of the deceased and therefore, dependency would come to Rs. 6180/- per month and after rounding up to Rs. Thus, prospective income would come to Rs. 8250/- per month. Looking to the number of dependents, 1/4th is required to be deducted towards personal expenses of the deceased and therefore, dependency would come to Rs. 6180/- per month and after rounding up to Rs. 6200/- and applying multiplier of 16, the original claimants shall be entitled to Rs. 11,90,400/- towards future loss of income. The original claimant shall also be entitled to Rs. 1,10,000/- under conventional heads and funeral expenses. Thus, after rounding up, the original claimant shall be entitled to Rs. 13,00,000/- in all towards compensation along with proportionate costs and interest at the rate of 9% per annum from the date of filing of the claim petition till realization. The learned tribunal has awarded Rs. 8,13,000/-. Thus, the original claimants shall be entitled to additional amount of Rs. 4,87,000/-. To the aforesaid extent, the impugned judgment and award passed by the learned tribunal is required to be modified and present appeal is required to be partly allowed to the aforesaid extent. 7. Now, so far as First Appeal No. 1006 of 2016 arising out of Motor Accident Claim Petition No. 185 of 2011 is concerned, against total claim of Rs. 21,00,000/-, the learned tribunal has awarded total sum of Rs. 9,01,800/- under different heads towards compensation for the death of the deceased as under:- Rs.8,56,800 Towards loss of dependency Rs.0,15,000 Towards loss of consortium Rs.0,25,000 Towards loss of estate Rs.0,05,000 Towards of funeral expenses Rs.9,01,800 Total compensation 7.1. Mr. Vishal Mehta, learned advocate appearing on behalf of the appellants - original claimants has vehemently submitted that the learned tribunal has materially erred in deducting 1/3rd towards personal expenses of the deceased while awarding future loss of income. 7.2. Mr. Vishal Mehta, learned advocate appearing on behalf of the appellants - original claimants has further submitted that the learned tribunal has materially erred in awarding Rs. 45,000/- under the conventional heads and funeral expenses. It is submitted that as per the catena of decisions of this Court, the claimant shall be entitled at least Rs. 1,10,000/- under conventional heads and funeral expenses. Therefore, it is requested to allow present First Appeal No. 1006 of 2015 arising out of Motor Accident Claim Petition No. 185 of 2011. 7.3. Mr. Vibhuti Nanavati, learned advocate appearing on behalf of the Reliance Insurance Company Ltd. and Mr. 1,10,000/- under conventional heads and funeral expenses. Therefore, it is requested to allow present First Appeal No. 1006 of 2015 arising out of Motor Accident Claim Petition No. 185 of 2011. 7.3. Mr. Vibhuti Nanavati, learned advocate appearing on behalf of the Reliance Insurance Company Ltd. and Mr. Maulik Shelat, learned advocate has appearing on behalf of New India Insurance Company Ltd. have vehemently submitted that the learned tribunal has materially erred in considering the income of the deceased at Rs. 6300/- per month. It is submitted that as per the Salary Certificate, actual income of the deceased at the time of accident was Rs. 5800/- per month. Therefore, they have requested to pass appropriate order and award just compensation. 7.4. Having heard the learned advocates appearing on behalf of the respective parties at length. As per the Salary Certificate produced on record, the income of the deceased is required to be considered at Rs. 5800/- per month. As the deceased was aged 28 years, 50% was required to be added towards future rise in income. Thus, prospective income would come to Rs. 8700/- per month. Looking to the number of dependents, 1/4th is required to be deducted towards personal expenses of the deceased and therefore, dependency would come to Rs. 6525/- per month and applying multiplier of 17, the original claimants shall be entitled to Rs. 13,31,100/- towards future loss of income. The original claimants shall also be entitled to Rs. 1,10,000/- under conventional heads and funeral expenses. Thus, after rounding up, the original claimant shall be entitled to Rs. 14,41,100/- in all towards compensation. The learned tribunal has awarded Rs. 9,01,800/-. Thus, the original claimants shall be entitled to additional amount of Rs. 5,39,300/-. To the aforesaid extent, the impugned judgment and award passed by the learned tribunal is required to be modified and present appeal is required to be partly allowed to the aforesaid extent. 8. In view of the above and for the reasons stated above, First Appeal No. 1005 of 2016 is hereby partly allowed. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhidham-Kutch in Motor Accident Claim Petition No. 81 of 2011 is modified to the aforesaid extent and it is held that the original claimants shall be entitled to Rs. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhidham-Kutch in Motor Accident Claim Petition No. 81 of 2011 is modified to the aforesaid extent and it is held that the original claimants shall be entitled to Rs. 13,00,000/- in all, towards compensation along with proportionate costs and interest at the rate of 9% per annum from the date of filing of the claim petition till realization. 9. First Appeal No. 1006 of 2016 is hereby partly allowed. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Gandhidham-Kutch in Motor Accident Claim Petition No. 185 of 2011 is modified to the aforesaid extent and it is held that the original claimants shall be entitled to Rs. 14,41,100/- towards compensation with interest at the rate of 9% per annum from the date of filing of the claim petition till realization along with proportionate costs and interest at the rate of 9% per annum on the aforesaid amount from the date of filing of the claim petition till realization. 10. In view of the above and for the reasons stated above, First Appeal No. 271 and 272 of 2016 are partly allowed and both the matters are remanded to the learned tribunal to consider the only issue with respect to negligence/contributory negligence between the driver of both the vehicles involved in the accident in accordance with law and on merits and considering the evidence already lead and to be heard with the aforesaid claim petitions arising out of the very accident and which are pending before the learned tribunal. The aforesaid exercise shall be completed by the learned tribunal within a period of six months from the date of receipt of the writ of the present order. The amount is deposited by the respondent Insurance Company shall be continued to be deposited with the learned tribunal till final disposal of the claim petitions on remand. However, the claimants shall be entitled to withdraw periodical interest accrued on the same. Both these appeals are partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of the First Appeal Nos. 271 of 2016 and 272 of 2016, respective Civil Application No. 1203 of 2016 and 1204 of 2016 stand disposed of.