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Gujarat High Court · body

2019 DIGILAW 73 (GUJ)

Oriental Insurance Co. Ltd. v. Neha Manubhai Balwantrai @ Ballubhai Naik

2019-01-29

R.M.CHHAYA, V.B.MAYANI

body2019
JUDGMENT : V.B. MAYANI, J. 1. The present First Appeals have been filed by the Oriental Insurance Company as well as claimants respectively to assail the common judgment and award dated 4.1.2008 passed by the learned Motor Accident Claim Tribunal (Main) Navsari in Motor Accident Claim Petition No.83 of 2005. 2. The appellant of First Appeal No.2659 of 2008 is the Insurance Company which was opponent No.3 before the learned Tribunal whereas the appellants of First Appeal No.219 of 2009 were the claimants. The learned Tribunal has partly allowed the claim petition and granted compensation of Rs.11,63,740/- with interest at the rate of 9% p.a. together with cost. 3. The status of the above mentioned parties was opponent No.3 and claimants in the original petitions whereas opponents No.1 and 2 were the driver and owner of the truck involved in the accident. 4. The claim petition before the learned Tribunal was earlier filed with claim for Rs.15,00,000/- and afterwards it was amended to Rs.30,00,000/-. 5. It is the case of the claimants, who are the widow and minor daughter of deceased Manubhai Naik that, on 7.5.2005 at around 7:00 to 7:30 in the evening hours the deceased Manubhai Balvantrai @ Ballubhai Naik was going on motorcycle on his left side of his way with slow speed from Surat to Dhamdachha village, at that time, the opponent No.1, driver of the Truck bearing No.GJ2X2595 came from the opposite side in a rash and negligent manner with high speed on the wrong side near the Naj Hotel at Parthana village and dashed with the motorcycle of deceased Manubhai, as a result of which the deceased sustained fatal injuries resulting into death at Kejal Hospital during the treatment and, therefore, an offence was registered with Navsari Rural Police Station being CR No.I79 of 2005 for the offence punishable under Sections 279, 337, 304(A) of the Indian Penal Code as well as under Section 177 and 184 of the Motor Vehicles Act. It is also the case of the claimants that deceased Manubhai was serving in Surat Municipal Corporation as Sluice Valve Inspector and his salary was Rs.8,409.72 ps. p.m. On the basis of above particulars the claimants have filed petition for total claim of Rs.30,00,000/-. 6. The learned Tribunal has awarded compensation of Rs.11,63,740/- by judgment and award dated 4.1.2008. Hence both above mentioned parties have preferred the above first appeals. 7. p.m. On the basis of above particulars the claimants have filed petition for total claim of Rs.30,00,000/-. 6. The learned Tribunal has awarded compensation of Rs.11,63,740/- by judgment and award dated 4.1.2008. Hence both above mentioned parties have preferred the above first appeals. 7. Heard Ms. Lilu Bhaya, learned advocate for the appellant Oriental Insurance Company in First Appeal No.2659 of 2008 and opponent No.3 First Appeal No.219 of 2009 and Ms. Mausmi Nanavati, learned advocate appearing for Mr. Vibhuti Nanavati, learned advocate for respondents-original claimants-opponents No.1 and 2. 8. Ms. Lilu Bhaya, learned advocate for the appellant Oriental Insurance Company has mainly submitted that as per the judgment the driver of the truck who dashed with the deceased has been held solely liable for the accident by the learned Tribunal but the accident has occurred in the middle of the road and, therefore, the driver of the motorcycle i.e. deceased Manubhai has also contributed liability towards the accident and, therefore, that amount should be deducted from the total compensation amount. She has also submitted that multiplier should be less than 15. On the query she submitted that the truck was going from Mumbai to Ahmedabad. Ms. Bhaya, learned advocate for the Insurance Company relying upon payslip at Ex.61 contended that the learned Tribunal has not correctly calculated the income of the deceased. She also contended that basicpay and total receipt of the deceased was less than what is considered by the learned Tribunal. 9. Ms. Mausmi Nanavati, learned advocate appearing for Mr. Vibhuti Nanavati, learned advocate for respondents-original claimants-opponents No.1 and 2 has mainly submitted that truck came from the opposite side and dashed with the motorcycle of the deceased person after coming to the wrong side and, therefore, there is no contributed liability on the part of the deceased and the learned Tribunal has rightly considered the driver of the truck as solely liable. She has submitted that the multiplier of 15 applied by the learned Tribunal is just, legal and proper and no interference is required. She has also submitted that the income of the deceased calculated by the learned Tribunal is not just, proper, legal and correct as the learned Tribunal has deducted the amount of investment, EMI etc., from the gross income of the deceased and arrived at wrong income of the deceased for calculation of the compensation. She has also submitted that the income of the deceased calculated by the learned Tribunal is not just, proper, legal and correct as the learned Tribunal has deducted the amount of investment, EMI etc., from the gross income of the deceased and arrived at wrong income of the deceased for calculation of the compensation. She has also submitted that deduction made by the learned Tribunal from the gross salary of the deceased person is not proper and legal and, therefore, it is required to be reconsidered. She, therefore, submitted that the award requires to be modified as prayed for in First Appeal No.219 of 2009. 10. We have heard learned advocates for the respective parties at length and in great details. We have considered the record and proceedings of the learned Tribunal, perused the averments made in the memo of appeals and citations cited by both the parties. 11. Ms.Lilu Bhaya, learned advocate for the appellant Oriental Insurance Company has taken contention that the accident has taken place in the middle of the road and therefore, the deceased Manubhai is also liable to some extent and therefore, there should be some contributory liability and the amount of compensation be decreased to that extent. In this regard we have considered the following aspects of the matter : 11.1 We have considered that the learned Tribunal has taken into consideration the FIR, panchnama and other circumstances at the time of considering the issue of contributory liability, which has not been discussed at a length. In this regard the panchnama of place of accident is an important document and thereby it can be verified that how the accident has occurred. The panchnama generally describes the position of the vehicle as well as the damage caused to the vehicles. In the present case the accident has taken place on the Highway No.8 which is from Ahmedabad to Mumbai near village : Parthana, near Naj Hotel. The length of the road is north to south, on the north side Ahmedabad is situated and on southern side Mumbai is situated. The truck involved in the accident was coming from Mumbai, means south to north, whereas the deceased was going to his place from Surat, means from north to south and there was head on collision. The panchnama Ex.48 describes that the road is about 30 Ft. The truck involved in the accident was coming from Mumbai, means south to north, whereas the deceased was going to his place from Surat, means from north to south and there was head on collision. The panchnama Ex.48 describes that the road is about 30 Ft. wide and the Truck bearing No.GJ2X2595 is lying on the middle of the road facing north and the front wheel of the truck went towards eastern side about 02 Ft. from the middle line of the road. Thereafter it describes the damage caused to the two vehicles. In such a situation if one visualizes the place of occurrence of the accident then when the truck coming from south to north then its right side means eastern side is wrong side for the vehicle and looking to the situation the truck has gone away 02 Ft. to the eastern side from the middle line of the road. Therefore it can be easily be said that the truck has gone about 02 Ft. on wrong side and the truck dashed with the motorcycle coming from north side. Moreover, the panchnama describes that there are no tyre marks of the truck. At the end of the panchnama it has been described that from the place of the accident, on the eastern side there is an ironangle of PWD and thereafter kachha road and thereafter drainage; whereas on the westside of the place of the accident there is a road divider, thereafter the plantation, thereafter Mumbai Ahmedabad Highway and thereafter compound of the Naj Hotel. This situation also describes that the truck has left its side and went to the eastern side which is a wrong side for the truck. Moreover, the driver of the truck is most important witness who can say about how the accident occurred. But he has not been examined by the insurance company, which adversely affect the defence of the insurance company. 11.2 Ms. Lilu Bhaya, learned advocate for the appellant Oriental Insurance Company has cited decision in the case of Bijoy Kumar Dugar vs. Bidya Bhar Dutta and ors. reported in (2006) 3 SCC 242 . In the said case there was an accident between a car and a bus. 11.2 Ms. Lilu Bhaya, learned advocate for the appellant Oriental Insurance Company has cited decision in the case of Bijoy Kumar Dugar vs. Bidya Bhar Dutta and ors. reported in (2006) 3 SCC 242 . In the said case there was an accident between a car and a bus. The car driver expired in the accident and the eyewitness who was travelling with the deceased had deposed before the Tribunal that the bus coming from the opposite side in a zigzag manner which they saw at a distance and afterwards the accident occurred. In such a situation it has been held that when the bus had come from the opposite side in a zigzag manner and they have seen the said bus in such a manner then it is the duty of the driver of the car that he should take appropriate steps to avoid the accident which was not in that case and, therefore, the Court held that the car driver who was deceased was also liable for the accident to some extent and considered the contributory liability of the deceased car driver. In the present case this type of situation does not exist. The offending vehicle was not coming in zigzag manner. Moreover, there is no evidence on the record that the driver of the motorcycle means deceased Manubhai has seen the truck far away from the place of the accident. On the contrary, as mentioned above the truck had come to the wrong side and accident has occurred. In such a situation the citation cited is not helpful to the Insurance Company. 11.3 Ms. Mausmi Nanavati, learned advocate appearing for Mr. Vibhuti Nanavati, learned advocate for respondents-original claimants-opponents No.1 and 2 has cited decision in the case of Pramod kumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and ors., reported in AIR 2002 SC 2864 , wherein it has been held at para11 as under : “The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feed width of the road on the left side of the car driven by the appellant. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feed width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the center of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant’s failure to swerve to the extreme left of the road did not amount to negligence.” In the above mentioned situation this decision is helpful to the claimants to some extent. 11.4 In view of the above mentioned facts and circumstances more particularly, the panchnama of the place of the accident, the situation of the location, the situation of the vehicles and surrounding circumstances as well as the above mentioned citations we come to the conclusion that the Tribunal has rightly considered that the driver of the truck is solely liable for the accident and there is no contributory liability of the deceased Manubhai. 12. So far as issue regarding income of the deceased person and the contribution towards his family is concerned, in this regard the learned Tribunal has considered the point regarding the income and the contribution to the family in para21 of the judgment as under : “The loss suffered by them is an amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependents would only be receiving the net amount less 1/3 for his personal expenses. Hence, I am of the opinion that out of the aforesaid deductions, the deductions such as deduction of Rs.2,232/- towards H.D.F.C., deduction of Rs.1,396/- towards credit society, and the deduction of Rs.250/- towards postal recurring cannot be deducted. The total of the aforesaid deduction comes to Rs.3,878/-. Hence, I am of the opinion that out of the aforesaid deductions, the deductions such as deduction of Rs.2,232/- towards H.D.F.C., deduction of Rs.1,396/- towards credit society, and the deduction of Rs.250/- towards postal recurring cannot be deducted. The total of the aforesaid deduction comes to Rs.3,878/-. Hence, out of deduction of Rs.5,944/-, if the amount of Rs.3,878/- towards the aforesaid deductions is not considered, then at the time of death of deceased Manubhai Balwantrai Naik, the petitioners who are the dependents of the deceased were getting Rs.6,343/- p. m. That considering the post held by the deceased Manubhai Balwantrai Naik, his income may not have remained stagnant in future. Hence, his prospective income can be assessed atleast Rs.9,514.50 ps.” 12.1 In view of the above mentioned facts the learned Tribunal has considered the contribution towards the family Rs.6,343/- p. m. and the prospective income has been considered as Rs.9,514.50 ps. Now if we consider the payslip of the deceased produced vide Ex.50, the gross income is Rs.8409.72 ps. and deduction is considered Rs.5944.72 ps. and the net income comes to Rs.2465.00 ps. 12.2 Learned advocate for the claimants has submitted that the learned Tribunal has considered the income wrongly, particularly the deduction shown in the payslip is not properly considered by the learned Tribunal whereas the learned advocate for the Insurance Company has submitted that the learned Tribunal as considered the income and contribution towards the family properly and no interference is required. 12.3 In view of above mentioned circumstances the learned advocate for the appellants has cited the decision rendered in the case of National Insurance Co. Ltd., vs. Indira Srivastava and Ors., reported in (2008) 2 SCC 763 , the Hon’ble Apex Court in paras 9 and 10 has held as under : “9. The term ‘income’ has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms. 10. Section 168 of the Act uses the word ‘just compensation’ which, in our opinion, should be assigned a broad meaning. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms. 10. Section 168 of the Act uses the word ‘just compensation’ which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined.” 12.4 Moreover, in the decision in the case of National Insurance Company Limited v. Pranay Sethi and ors., reported in (2017) 16 SCC 680 , in para 59.3 and 59.4 the Constitutional Bench of Hon’ble Supreme Court has held that the established income means the income minus the tax component. 12.5 In view of the above mentioned decision as well as the factual aspects it is required to consider that at the time of considering the income of the deceased deduction which is like, provident fund, any investment, premium to Insurance Company, installment towards loan taken etc., are not to be deducted from the gross income of the deceased because the above mentioned deductions are just like investment or payment towards loan. If such type of deduction has not been made then the amount of such deduction will go in the pocket of the deceased and the same may increase the net amount of the salary. In view of the above mentioned decision as applied in the present case the learned Tribunal has erred in considering the income of the deceased and the contribution towards family. Here in the present case, as per Ex.50 gross income of the deceased is Rs.8409.72 ps. In view of the above mentioned decision as applied in the present case the learned Tribunal has erred in considering the income of the deceased and the contribution towards family. Here in the present case, as per Ex.50 gross income of the deceased is Rs.8409.72 ps. whereas other deductions are G.P.F., V.P.F., festival aid, H.D.F.C. loan, postal recurring, credit society etc., which are either investment or repayment of the loan and, therefore, such type of deductions are not required to be deducted from the gross income. Therefore, the income of the deceased is to be considered as Rs.8409.72 ps. minus Rs.40/- professional tax then it comes to Rs.8,369.72/-, which is rounded off as Rs.8,370/-. 12.6 Ms. Bhaya has wrongly relied upon the payslip at Ex.61. The said payslip is only for 07 days i.e. from 1.5.2005 to 7.5.2005, the date for which the accident occurred whereas payslip at Ex.50 is the payslip of March, 2005 which correctly shows the income of deceased Manubhai. The Tribunal has rightly relied upon payslip at Ex.50 as basis to determine the income of the deceased Manubhai who was serving as Sluice Inspector with Surat Municipal Corporation. 12.7 The deceased Manubhai was serving in Surat Municipal Corporation as Sluice Valve Inspector, on a permanent job with increase of salary by way of increment and, therefore, he shall be considered as he was on permanent job with increment. 12.8 The birth-date of the deceased person is 01.5.1965 and the accident occurred on 05.7.2005 and, therefore, age of the deceased at the time of accident was less than 40 years. 12.9 In view of decision in the case of National Insurance Company Limited v. Pranay Sethi and ors., (Supra) as the deceased person was holding permanent job with increment and his age was less than 40 years, the income of deceased is to be raised by 50% as prospective income. 12.10 The deceased person may have to incur some amount for himself and, therefore, it is required to deduct 1/3 amount of his income towards personal expenses of the deceased. 12.11 As mentioned above the age of the deceased is less than 40 years and, therefore, as per decision rendered in the case of Sarla Verma (Smt.) and Ors., vs. Delhi Transport Corporation and Anr., reported in (2009) 6 SCC 121 , multiplier of 15 is just and proper as also applied by the learned Tribunal. 12.11 As mentioned above the age of the deceased is less than 40 years and, therefore, as per decision rendered in the case of Sarla Verma (Smt.) and Ors., vs. Delhi Transport Corporation and Anr., reported in (2009) 6 SCC 121 , multiplier of 15 is just and proper as also applied by the learned Tribunal. 12.12 In view of the above mentioned factual as well as legal aspects the loss of future income to the claimants can be calculated as below : (1) Rs.8409.72 ps. gross income of the deceased minus Rs.40/- professional tax equal to Rs.8370/- (rounded off), the net income as rounded off. (2) 50% of the income mentioned above is required to be raised as prospective income. Therefore, 50% of Rs.8370/- equal to Rs.4185/- and total income is Rs.12,555/-. (3) 1/3 of Rs.12,555/- is required to be deducted as personal expenses of the deceased person which comes to Rs.4,185/-. (4) Therefore the contribution towards the family is Rs.8,370/-. (5) The total future loss of income is Rs.8,370 x 12 x 15 Rs.15,06,600/-. (6) As per the decision in the case of National Insurance Company Limited v. Pranay Sethi and ors., (Supra), the appellants are entitled for conventional amount of Rs.70,000/-[ Loss of estate Rs.15,000/+ loss of consortium Rs.40,000/+ funeral expenses Rs.15,000/-] 13. Therefore the claimants are entitled for compensation as below : Rs. 15,06,600/- Towards dependency of family. Rs.70,000/- For conventional amount [Loss of estate Rs.15,000/+loss of consortium Rs.40,000/+ funeral expenses Rs.15,000/]. Rs.15,76,600/- Is the total amount of compensation for which the claimants are entitled. As mentioned above the total amount for compensation is Rs.15,76,600/- the claimants are entitled, whereas the learned Tribunal has awarded Rs.11,63,740/- and, therefore, the claim amount is enhanced for Rs.4,12,860/-. The claimants have prayed for enhancement of claim amount to the extent of Rs.4,00,000/- but as per above calculation the enhancement is arrived to Rs.4,12,860/-. Considering the aspect of just, fair and proper compensation, we are of the candid view that the claimants are entitled for the enhancement of the compensation amount to the extent of Rs.4,12,860/-. The claimants have prayed for the compensation with the rate of interest at 12% p.a., but in the prevailing scenario and circumstances the prayer cannot be accepted and we are of the candid view that the claimants are entitled for 9% p.a. as the rate of interest. 14. The claimants have prayed for the compensation with the rate of interest at 12% p.a., but in the prevailing scenario and circumstances the prayer cannot be accepted and we are of the candid view that the claimants are entitled for 9% p.a. as the rate of interest. 14. In view of the above facts and circumstances as well as discussion we come to the conclusion that the First Appeal No.2659 of 2008 filed by the Oriental Insurance Company is hereby dismissed, whereas the First Appeal No.219 of 2009 filed by the claimants is hereby partly allowed. The original claimants are entitled for enhancement of Rs.4,12,860/- in addition to the compensation awarded by the learned Tribunal with cost and with interest at the rate of 9% p.a. from the date of filing of the claim petition before the learned Tribunal till its realization. The impugned award stands modified to the aforesaid extent. The Insurance Company is directed to deposit additional amount with interest within 03 months from the date of the receipt of this judgment. The remaining conditions of the award of the learned Tribunal remain as it is. The claimants shall pay Court fee for the excessive amount of the amount sought for in their appeal. 15. Record and Proceedings, if any, be sent back to the learned Tribunal concerned, forthwith.