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Gujarat High Court · body

2018 DIGILAW 864 (GUJ)

National Insurance Co v. Tushar Arvindbhai Patel

2018-07-16

AKIL KURESHI, B.N.KARIA

body2018
JUDGMENT & ORDER : AKIL KURESHI, J. 1. These appeals arise out of a common judgment passed by the Motor Accident Claims Tribunal, Bhuj, in two separate motor accident Claim Petitions arising out of the same accident. 2. Briefly stated, the facts are that one Arvindbhai Patel and his wife Ratnaben were traveling from Mumbai, going towards Ahmedabad in a luxury bus. On National Highway No.8, near GNFC, Bharuch, their bus met with a serious accident with an incoming truck causing fatal injuries to both of them. Several other persons traveling in the luxury bus also received multiple injuries. Arvindbhai and his wife Ratnaben left behind one son aged about 18 and a daughter aged about 20 years at the time of accident. The couple was settled in Kenya with their children. The children as their dependents, filed Claim Petition before the Motor Accident Claims Tribunal, Bhuj, claiming compensation from the driver, owner and insurer of the luxury bus as well as the truck involved in the accident. The Claims Tribunal held that the accident took place solely on account of negligence in driving the truck by the driver. The Tribunal awarded compensation of Rs. 28,74,200/- to the claimants for the death of Arvindbhai Patel and Rs. 9,80,400/ for the death of his wife Ratnaben. The insurance company who was the insurer of the truck, has filed the First Appeals challenging the quantum of compensation. Claimants have filed Cross Appeals/Objections seeking enhancement of the compensation. 3. On behalf of the claimants, it was pointed out before the Claims Tribunal that deceased Arvindbhai was serving as an Assistant Accountant in a construction company called Laxmanbhai Construction Limited since the year 2003. According to the claimants, he was drawing a salary of 70,000 Kenyan Shillings per month. He was aged about 50 years. The Claims Tribunal believed his income to be 45,000 Kenyan Shillings which was converted into Rs. 27,270/- per month in Indian currency. 1/3rd thereof was set apart for the personal expenditure of the deceased, leaving a net of Rs. 18,200/- per month for the deceased. The Tribunal applied a multiplier of 13 to workout the loss of dependency benefit at Rs. 28,39,200/-, to which, the Tribunal added Rs. 10,000/- for funeral expenses and Rs. 25,000/- towards loss of estate, making grand total of Rs. 28,74,200/-. 4. 18,200/- per month for the deceased. The Tribunal applied a multiplier of 13 to workout the loss of dependency benefit at Rs. 28,39,200/-, to which, the Tribunal added Rs. 10,000/- for funeral expenses and Rs. 25,000/- towards loss of estate, making grand total of Rs. 28,74,200/-. 4. With respect to the mother of the claimants, it was contended that she was running tuition classes and earning 15,000 Kenyan Shillings per month. However, there was no evidence of such income. The Tribunal still believed her income to 15,000 Kenyan Shillings which would come to Rs. 9090/- per month in Indian currency. Similar further parameters were applied as in case of deceased Arvindbhai and the Tribunal worked out the total compensation payable to the claimants at Rs. 9,80,400/- in her case. 5. Appearing on behalf of the insurance company, learned advocate Shri Dakshesh Mehta submitted that the Tribunal has not correctly assessed income of both the deceased persons. Particularly, in case of deceased Ratnaben, she had no formal education. The version of the claimants that she was running tuition classes was therefore incorrect. He submitted that awarding compensation with 10% interest was on the higher side. 6. On the other hand, learned advocate Shri Bhatt for the claimants argued that the Tribunal has underassessed the income of Arvindbhai Patel. No rise for future income has been granted. There was documentary evidence establishing the income which has been ignored by the Tribunal. With respect to his wife, the counsel submitted that even as the housewife, contribution to the family can be quantified as is done by the Supreme Court in number of cases. 7. We may first examine the question of compensation for death of Arvindbhai Patel. The record would show that he was settled in Kenya since long. He was a graduate in commerce from Bombay. Since the year 2003, he was working in a private firm as an accountant. The claimants had produced at Exh.53/C the letter of employment issued by Laxmanbhai Construction Limited on 31.05.2003 showing that the deceased was employed as an Assistant Accountant with effect from 01.05.2003. This appointment letter has an annexure showing that his gross salary for the month of May, 2003, was 50,000 Kenyan Shillings. The claimants had produced at Exh.53/C the letter of employment issued by Laxmanbhai Construction Limited on 31.05.2003 showing that the deceased was employed as an Assistant Accountant with effect from 01.05.2003. This appointment letter has an annexure showing that his gross salary for the month of May, 2003, was 50,000 Kenyan Shillings. At Exh.54/C, the claimants had produced the certificate of the employer certifying that he was getting gross monthly salary of 67,000 Kenyan Shillings and after statutory deductions, his net salary was 49,509 Kenyan Shillings. Pay slip for the month of July, 2005, was produced at Exh.55/C. This showed the gross basic salary of employee at 67,000 Kenyan Shillings. 10,000 Kenyan Shillings was added as saloon car facility. 200 Kenyan Shillings was deducted towards the contributions making taxable salary at 76,800 Kenyan Shillings, from which, gross tax of 18,133 Kenyan Shillings was deducted. Several pay slips of subsequent months were produced. The last of them viz. December, 2005, at Exh.56/C contained various one time payments such as annual leave and arrears but his basic salary was shown at 72,360 Kenyan Shillings. This was exclusive of 10,000 Kenyan Shillings for the saloon car facility. The claimants had examined one Laxman Bhimjibhai Raghvani at Exh.70/C. He was the Chairman of the Laxmanbhai Construction Limited. In his deposition, he has stated that in addition to the pay, the deceased, as an employee was receiving one bonus pay in the month of December. 8. Going by the latest salary slip of the deceased, in the month of December, 2005, he had received basic salary of 72,360 Kenyan Shillings and 10,000 by way of allowances making his gross salary at 82,360 Kenyan Shillings. As per the deposition of the employer, he was also receiving bonus of one month of salary. His pay therefore be increased by 8.33% which comes to 6860 Kenyan Shillings. By adding this amount to gross salary of 82,360, we would get the figure of 89,220 Kenyan Shillings. In the earlier months, the employer had deducted tax of 18,133 Kenyan Shillings. Considering higher salary, we would deduct tax of 20,000 Kenyan Shillings. His net salary therefore would be 69,220 Kenyan Shillings. Looking to the age of the deceased, as per the decision of Supreme Court in case of National Insurance Company Ltd. v. Pranay Sethi and Ors., (2017) 3 GLH 536, 15% rise in the future income may be given. Considering higher salary, we would deduct tax of 20,000 Kenyan Shillings. His net salary therefore would be 69,220 Kenyan Shillings. Looking to the age of the deceased, as per the decision of Supreme Court in case of National Insurance Company Ltd. v. Pranay Sethi and Ors., (2017) 3 GLH 536, 15% rise in the future income may be given. The 15% future rise would come to 10,383 Kenyan Shillings, adding this sum to 69,220 Kenyan Shillings, we would get an amount of 79,603. 1/3rd thereof would be set apart for the personal expenditure of the deceased. Deducting such 1/3rd i.e. 26,534 Kenyan Shillings, we would get an amount of 53,069 Kenyan Shillings for the loss of dependency benefit of the family per month. By applying conversion ratio of Rs. 0.625 for every Kenyan Shilling, in Indian currency, this would come to Rs. 33,168/- per month or Rs. 3,98,016/- per annum. Applying multiplier of 11, looking to the fact that deceased was about 51 years of age on the date of the accident, the loss of dependency benefit would be worked out to Rs. 43,78,176/-. To this, we would add Rs. 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses. Thus, the total would come to Rs. 44,08,176/-. The Tribunal having awarded Rs. 28,74,200/- the claimants would receive additional compensation of Rs. 15,33,976/-. We modify the rate of interest to 9% for the entire compensation from the date of claim petition. This would be for the compensation which is awarded by the Claims Tribunal and which is additionally awarded as per this judgment. Out of the amount that the insurance company may deposit pursuant to this order and which is still lying with the Tribunal as per the award of the Tribunal, 50% thereof shall be invested in the fixed deposit in any nationalized bank for a period of five years. Remaining 50% to be released in favour of the claimants through A/c payee cheque. Upon maturity of the period of five years, rest of the amount may also be paid over to the claimants. 9. First Appeal of the insurance company is dismissed and that of the claimants is allowed in part. 10. Coming to the Claim Petition related to the death of Ratnaben, it has come on record by way of admission of the claimant that she had no formal education. 9. First Appeal of the insurance company is dismissed and that of the claimants is allowed in part. 10. Coming to the Claim Petition related to the death of Ratnaben, it has come on record by way of admission of the claimant that she had no formal education. The assertion that she was running the tuition classes therefore cannot be accepted. In any case, there was no evidence of her income from such source. We must therefore proceed on the basis that she was a housewife. Nevertheless, her contribution in looking after the home and family cannot be underestimated. The Supreme Court in number of decisions has recognized the value of the contribution of a housewife. The Claims Tribunal however, committed an error in believing her income to be 15,000 Kenyan Shillings per month without any basis. Looking to the income strata of the family, the number of dependents and other relevant factors, we take her monthly contribution to the family wellbeing at 10,000 Kenyan Shillings per month which would be Rs. 6250/-. In her case, looking to her age in the range of 45 to 50 years, there would be increase of 25% in her income for the future, which can be rounded off to Rs. 1560/- per month. The prospective income therefore would be Rs. 7810/- per month. 1/3rd deduction would leave Rs. 5207/-, rounded off to Rs. 5200/ per month for the family or Rs. 62,400/- per annum. Applying multiplier of 13, the loss of dependency benefit would be Rs. 8,11,200/-. We add a further sum of Rs. 30,000/- towards conventional heads, making a total of Rs. 8,41,200/-. The Tribunal having awarded compensation of Rs. 9,80,400/-, there would be a reduction of Rs. 1,39,200/- which would be recoverable from the claimants. Here also, we modify the rate of interest uniformly to 9% from the filing of the Claim Petition till actual realization. 11. First Appeal of the insurance company is allowed in part and that of the claimants is dismissed. 12. All the First Appeals and Cross Objection are disposed of accordingly. R & P of to be transmitted back to the trial Court.