Oriental Insurance Co. Ltd. v. Damyantiben Mohanlal Bhimani
2017-09-01
R.P.DHOLARIA
body2017
DigiLaw.ai
JUDGMENT : R.P. DHOLARIA, J. This appeal has been preferred by the appellant-Insurance Company against the judgment and award dated 02.05.2005 passed by the learned Motor Accident Claims Tribunal (FTC-4), Kachchh at Bhuj, in Motor Accident Claim Petition No. 13 of 1997, wherein the learned Tribunal has awarded compensation of Rs. 12,00,000/-. 2. The appellant-Insurance Company by way of preferring the present appeal, inter-alia, contended that the learned Tribunal has not properly appreciated the evidence on record and has awarded compensation which is on higher side. It is further contended that the heirs and legal representatives of deceased-Mohanlal initially, at the time of filing the claim petition in the year 1997, pleaded that the monthly income of the deceased to be Rs. 2,000/- and restricted claim to Rs. 2,00,000/-. However, during the pendency of claim petition, the same was grossly enhanced stating his income to be Rs. 9,000/- per month and accordingly overall claim to be Rs. 12,00,000/-. It is further contended that after conclusion of trial and hearing, the learned Tribunal awarded entire claim of Rs. 12,00,000/- in favour of the claimants. It is further contended that the deceased was engaged in agricultural work and was having ancestral land admeasuring about 61 acres and in it, his share was 1/3rd of the total land. It is further contended that dealing with this brother and other family members, he has put reliance upon the decision of Supreme Court rendered in the State of Haryana v. Jasbir Kaur, reported in (2003) 7 SCC 484 , wherein the Hon'ble Supreme Court has clearly laid down that land possessed by the deceased would remain with the claimants as they are heirs and legal representatives of the deceased and due to which, there is possibility that the claimants may be required to engage persons to look after agricultural land and therefore, the normal rule about total deprivation of income would not be applicable to the cases where agricultural income is the source of income. It is further contended that learned Tribunal has adopted a very generous view in awarding the compensation under various heads and lastly, it is prayed to reduce the amount of compensation. 3.
It is further contended that learned Tribunal has adopted a very generous view in awarding the compensation under various heads and lastly, it is prayed to reduce the amount of compensation. 3. The brief facts of the case are that on 21.3.1996 at about 10:30 a.m, when deceased-Mohanlal Bhanji Bhimji was going upon his scooter bearing registration No. GAH-1192 from Gandhshisha to Mau Ratanpuar and as soon as, he reached near the place of the accident, a truck bearing registration No. GJ-12-T-7499 came from the opposite direction at excessive speed, rashly and negligently, endangering human life and dashed with scooter of the deceased. As a result, the deceased sustained injuries and due to such injuries, he died. 4. Heard Mr. K.K Nair, learned advocate appearing for the appellant-Insurance Company and Mr. S.K Patel, learned advocate appearing for respondent Nos. 1, 2, 3 and 5. Though served, none appears on behalf of respondent Nos. 4, 6 and 7. 5. Mr. K.K Nair, learned advocate appearing for the appellant-Insurance Company has submitted that the learned Tribunal has failed to appreciate the contention as regard fixation of compensation. He has further submitted that the learned Tribunal has erred in assessing the income of deceased which is on higher side. It is further contended that the learned Tribunal has awarded exorbitant compensation which is required to be reduced as such. 6. On the other hand, Mr. S.K Patel, learned advocate appearing for respondents has strongly opposed the appeal and submitted that the learned Tribunal has rightly awarded just and proper compensation in view of the evidence available on the record. Therefore, this Court should not interfere with the award passed by the learned Tribunal. He has further submitted that the learned Tribunal has passed the impugned judgment and award after taking into consideration the entire material on record and hence, no interference is called for at the hands of this Court and the present appeal may be dismissed. 7. Having heard the learned counsel for the respective parties and taking into consideration the impugned judgment and award passed by the learned Tribunal, it appears that only point of quantum of compensation is required to be determined in this appeal and therefore, this Court has concentrated on the point of quantum of compensation only. 8.
7. Having heard the learned counsel for the respective parties and taking into consideration the impugned judgment and award passed by the learned Tribunal, it appears that only point of quantum of compensation is required to be determined in this appeal and therefore, this Court has concentrated on the point of quantum of compensation only. 8. So far as the age of the deceased is concerned, the claimants have averred in the claim petition that the age of the deceased to be 38 years. However, in absence of any concrete evidence in connection with the date of birth of the deceased, as disclosed from autopsy report of the deceased, the learned Tribunal has assessed his age to be 40 years. Therefore, the deceased falls in the age group of 40-45 years. 9. So far as the income of the deceased is concerned, the claimants have averred that the deceased was engaged in agricultural operation and he was looking after huge parcel of land admeasuring about 61 acres wherein, he was farming crops of cotton and groundnut. Initially, the claimant pleaded the deceased used to earn Rs. 2,000/- per month from the aforesaid work but further it was enhanced to Rs. 10,000/- per month. Though no concrete evidence has been produced before the learned Tribunal in this regard, but revenue records in the form of extract of village form No. 7/12 has been produced on record by the claimants and it is proved before the learned Tribunal that the deceased was holding about 61 acres of ancestral land and in it, his share was proved to be 1/3rd. In that view of the matter, share of the deceased is proved about to be 20 acres of land. Taking into consideration the aforesaid huge parcel of land, in the year 1996, his income from the land can easily be counted to be Rs. 4,000/- per month inclusive of prospective rise in it. Taking into consideration, the age of the deceased to be 40 years at the time of accident, therefore, the deceased was falling in the age group of 40-45 years. The claimants are five in number, therefore, in view of the guidelines laid down by the Hon'ble Supreme Court, in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009) 6 SCC 121 , 1/4th amount, i.e. Rs.
The claimants are five in number, therefore, in view of the guidelines laid down by the Hon'ble Supreme Court, in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009) 6 SCC 121 , 1/4th amount, i.e. Rs. 1000/- per month is required to be deducted towards his personal and living expenses, if he had been alive. Thus, the amount comes to Rs. 3000/- per month (Rs. 4000-Rs. 1000). 10. Considering the age of the deceased which is falling within the age group of 40 to 45 years, in view of the guidelines laid down by the Hon'ble Apex Court in the case of “Sarla Varma” (supra), 15 multiplier shall be applicable for the age groups of 40 to 45 years. Hence, applying the multiplier of 15, the amount comes to Rs. 5,40,000/- (Rs. 3000 × 12 × 15) towards loss of dependency. Moreover, the claimants are also entitled for Rs. 55,000/- under the conventional heads such as loss of estate, funeral expenses, etc. Therefore, the claimants shall be entitled to a total sum of Rs. 5,95,000/- (Rs. 5,40,000+Rs. 55,000). 11. For the reasons recorded above, the present appeal is hereby allowed in part. The impugned judgment and award passed by the learned Tribunal is hereby modified and reduced from Rs. 12,00,000/- to Rs. 5,95,000/-. Any excess amount lying with the learned Tribunal, shall be refunded to the Insurance Company. The learned Tribunal shall disburse the amount in accordance with award drawn so far in the present matter. If any amount is deposited before this Court or before the learned Tribunal in this appeal shall be refunded forthwith with accrued interest, if any. Rest of the impugned judgment and award shall remain unaltered. No order as to costs. The Registry is directed to return the R & P, if any, forthwith to the learned Tribunal.