NEW INDIA ASSURANCE COMPANY LTD v. RAJIVKUMAR OMPRAKASH SULTANIYA
2021-10-28
ARAVIND KUMAR, MAUNA M.BHATT
body2021
DigiLaw.ai
JUDGMENT : ARAVIND KUMAR, J. 1. In these two appeals, the judgment and award passed in MACP Nos. 158 of 2016 and 159 of 2016 is under challenge by the insurer of the truck bearing registration No. GJ-05-BV-7812, whereunder the claim petitions filed by same claimant have been allowed in part and a compensation of Rs. 87,84,580/- and 24,23,780/- with interest 9% per annum from date of petitions till realisation with proportionate cost has been allowed by fastening the liability on the appellant – insurer. 2. At the outset, it requires to be noticed that though two claim petitions have been filed and two judgments and awards have been passed, this court cannot loose sight on the fact that all the parties in both the claim petitions are one and the same except the claimants, accident is same, the insurance policies issued to the vehicles involved in the accident are also the same, witnesses examined in both the cases are also same, yet jurisdictional Tribunal instead of clubbing these two petitions and adjudicating the same and delivering a common judgment has chosen to render two separate judgments which was not warranted and reasons are assigned for adopting such course. Such course should not be adopted as it would be waste of precious judicial time. 3. The Registrar General is hereby directed to ensure that all the members of the Motor Accident Claims Tribunal are intimated accordingly. We direct the members of Motor Accident Claims Tribunal that in all such cases where accident is one and the claim petitions are different, same shall be clubbed for the purposes of convenience and a common judgment be delivered which would not only ensure saving of precious judicial time but would also benefit the claimants and easy for the judicial officers in all front. This order shall be complied with by all the members of the Motor Vehicle Accident Claims Tribunal in the state of Gujarat forthwith and Registrar General shall issue a circular in this regard. 4.
This order shall be complied with by all the members of the Motor Vehicle Accident Claims Tribunal in the state of Gujarat forthwith and Registrar General shall issue a circular in this regard. 4. Brief background of the case : 4.1 The claimant who is the minor daughter preferred claim petitions as the legal heir and legal representative of deceased Smt.Anjaliben Hiteshkumar Chitalia (mother) and Shri Hiteshkumar Jayachandbhai Chitalia (father) seeking compensation of Rs.5 crores and 2 crores respectively on account of her parents having died due to fatal injuries sustained by them in a road traffic accident that occurred on 27.11.2015 on national highway road, within the limits of Chikali police station by filing petitions under section 166 of the Motor Vehicles Act, 1988, contending inter-alia that on 27.11.2015, her parents were travelling as passengers in a Creta car from Surat to Mumbai on National Highway No. 8 and at around 8:30 pm, when the said vehicle reached flyover near village Balvada about 7 kilometre away from Chikli, a truck coming from opposite side i.e. Mumbai to Surat bearing registration No. GJ-05-BV-7812, jumped the divider and dashed against the Creta car which resulted in dragging of the said car and as result of same fatal injuries were sustained by the inmates of the vehicles and her parents succumbed to the said injuries. Hence, two claim petitions were preferred by the minor girl represented by her guardian. 4.2 Tribunal issued notice to the parties, pursuant to which appellant – insurer appeared and filed its written statements denying averments made in the claim petitions except to the extent expressly admitted thereunder and sought for dismissal of the claim petitions. In the mele of the accident that occurred had resulted in TATA Sumo car bearing registration No. GJ-18- G-2826 also ramming to the Creta car and as such the insurer of the TATA sumo car was arraigned as respondent No. 4 before the Tribunal. The said respondent also appeared and filed written statement denying the averments made in the claim petitions. On the basis of the pleadings of the parties, the Tribunal framed the issues and in order to prove the issues framed by the Tribunal, the guardian of the minor claimant got examined herself and through her, in all 46 documents were marked in MACP No. 159 of 2016 and 62 documents in MACP No. 158 of 2016.
On the basis of the pleadings of the parties, the Tribunal framed the issues and in order to prove the issues framed by the Tribunal, the guardian of the minor claimant got examined herself and through her, in all 46 documents were marked in MACP No. 159 of 2016 and 62 documents in MACP No. 158 of 2016. In fact the Chartered Accountant of the deceased father of the claimant was also examined as a witness since he had filed the income tax returns of the deceased. By evaluating the evidence, Tribunal already observed hereinabove allowed the claim petitions in part and has awarded the compensation in the respective claim petitions to the extent already noticed hereinabove. Hence, these two appeals by the insurer of the truck contending inter alia that interest awarded by the Tribunal is on the higher side and in the light of the law laid down by the Apex Court in the case of Dharampal and others versus U.P. State Road Transport Corporation reported in (2008) 12 SCC 208 , the Tribunal could not have awarded 9% interest. It is also contended that Division Bench judgment of the High Court of Karnataka in the matter of Union of India and others versus K.S. Lakshmi Kumar And Others reported in 2001 Karnataka Law Journal 91, has held that in normal circumstances, the interest should not exceed beyond 6% and as such, Tribunal in the instant case, ought to have restricted the interest at 6% only on award. It is also contended that Tribunal committed a serious error in deducting 1/3 as the living expenses of the deceased, particularly when the dependent was only one and Tribunal failed to take into consideration the judgment of the Apex Court in the case of The Divisional Controller, KSRTC versus Mahadeva Shetty and Anr. reported in AIR 2003 SCC 4172. Hence, Mr. Vibhuti Nanavaty, learned counsel appearing for the appellant – insurer by reiterating the grounds urged in the respective appeals’ memorandum, has sought for appeals being allowed and judgments and awards passed in the respective claim petitions being modified. 5.
reported in AIR 2003 SCC 4172. Hence, Mr. Vibhuti Nanavaty, learned counsel appearing for the appellant – insurer by reiterating the grounds urged in the respective appeals’ memorandum, has sought for appeals being allowed and judgments and awards passed in the respective claim petitions being modified. 5. Learned counsel appearing for the insurer of TATA Sumo vehicle has stated that judgment and award passed by the Tribunal is just and proper and there being no fault on the part of the driver of the TATA Sumo vehicle, no liability has been fastened and as such, he prays for affirming the award of the Tribunal insofar as it absolves the insured as well as the insurer of the TATA Sumo vehicle bearing registration No. GJ-18-G-2826. The respondent claimants are served and unrepresented. We do not propose to keep these appeals pending by admitting these appeals and same deserves to be dismissed for the reasons indicated herein below : 6. At the outset, it requires to be noticed that Mr. Vibhuti Nanavaty, learned counsel appearing for the appellant - insurer does not dispute the occurrence of the accident, the manner in which it had occurred which resulted in death of parents of claimants, issuance of policy to the offending vehicle namely truck bearing registration No. GJ-05-BV-7812 and said policy being in vogue or force as on the date of accident as well as the liability of the appellant to indemnify the insured. Hence, we are not going into these aspects. 7. As noticed hereinabove, prime contention of the learned advocate Mr. Vibhuti Nanavaty are two fold : (1) That Tribunal ought to have deducted 50% towards living expenses when the dependent was only one and not 1/3. Insofar as the deduction is concerned, it requires to be noticed that said issue is no more res integra in view of the law laid down by the Apex Court in the matter of Sarla Verma & Ors. versus Delhi Transport Corp.& Anr. reported in (2009) 6 SCC 121 : 2009 ACJ 1298 . The Hon’ble Apex Court has held that deduction towards personal and living expenses of the deceased should be 1/3, where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.
The Hon’ble Apex Court has held that deduction towards personal and living expenses of the deceased should be 1/3, where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six. The Tribunal has taken note of this judgment and has clearly observed to the following effect : - “[16] xxxxxxxxx The Hon’ble Apex Court has held that where the number of dependent family members are 2 to 3 then one-third requires to be deducted. The Hon’ble Apex Court has not held 1 to 3 and has counted from 2 to 3, which means if there is only one family member dependent in that case, one-half should be deducted towards personal expenses and one-half should be considered as dependency loss. Here, in this case is any one, which is minor Arushiben Hiteshkumar and therefore, one-half (1/2 half) amount should be deducted towards personal living expenses of the deceased. It is apposite to quote relevant part of the paragraph 14 of the judgment in Sarla Verma (supra) : “14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.” In the present case, the deceased was married and having one daughter who is the present claimant. Therefore, as per the ratio laid down by the Hon’ble Apex Court the deceased was married and claimant was his daughter. Thus, deduction towards personal living expenses of the deceased is to be construed as two and accordingly one-third (1/3rd) had to be deducted and it is this precise exercise which was undertaken in both the cases by Tribunal. Finding arrived at by the Tribunal in this regard does not suffer from any infirmity calling for our interference. 8.
Thus, deduction towards personal living expenses of the deceased is to be construed as two and accordingly one-third (1/3rd) had to be deducted and it is this precise exercise which was undertaken in both the cases by Tribunal. Finding arrived at by the Tribunal in this regard does not suffer from any infirmity calling for our interference. 8. 2nd contention is with regard to award of interest, is to the effect that Tribunal committed an error in awarding 9% interest. This argument again is fallacious, inasmuch as even the judgment relied upon by the learned counsel appearing for the appellant - insurer namely Union of India and others versus K.S. Lakshmi Kumar And Others (Supra), Division Bench of the High Court of Karnataka after having considered the relevant facts as also the catena of judgments relating to award of interest, has held to the following effect : - “It is erroneous to predicate that there is anything in the law or the binding precedents that wherever interest is awarded, its rate should not be less than 12%. Both the award and the rate of interest are in the discretion of the Tribunal to be exercised judicially and judiciously, not arbitrarily or capriciously; but in accordance with sound principles.” (emphasis supplied by us) 9. Taking cue from the above observations, Mr. Vibhuti Nanavaty has made valiant attempt to contend that in the instant case, it has to be necessarily held that the rate of interest prevalent on Fixed Deposits not exceeding 4.5% to 6%, this Court has to restrict the award of interest @ 4.5% and not 9% as awarded. The said argument though looks attractive at first blush, it is not so, inasmuch as in the aforesaid judgment of Division Bench of High Court of Karnataka itself it has been held that award of interest is the discretion vested to the Tribunal and such discretion is to be exercised solely and judicially. In the instant case, the insurer has not entered the witness box and established before the Tribunal that there was any contra material available to arrive at a conclusion that interest then prevailing at the time of filing of the claim petitions was less than 9%. In the absence of any positive material being available before the Tribunal, the discretion exercised by the Tribunal cannot be held either not being judicious or is to be construed as capricious.
In the absence of any positive material being available before the Tribunal, the discretion exercised by the Tribunal cannot be held either not being judicious or is to be construed as capricious. In that view of the matter, second contention also does not merit acceptance and interference by the Appellate Court is not called for. Said contention stands rejected. 10. For the reasons afore-stated, we proceed to pass following ORDER (i) Both the Appeals stands dismissed. The judgment and award passed by the Motor Accident Claims Tribunal (Aux.) Jetpur at Distirct Rajkot in MACP Nos. 158 of 2016 and 159 of 2016 dated 30.03.2021 stands affirmed. (ii) No order as to costs. (iii) All pending civil applications stands dismissed. (iv) The observations as well as order made hereinabove which is applicable to all the Motor Accident Claims Tribunals across the State of Gujarat, shall be followed scrupulously and meticulously and the Registrar General shall issue necessary circular in this regard forthwith.