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2021 DIGILAW 1018 (GUJ)

NISHABEN CHAMPAKBHAI PATEL v. NANDLAL T NISHAD

2021-11-15

ARAVIND KUMAR, M.PRACHCHHAK

body2021
ORDER : (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) 1. This is a claimants’ appeal calling in question the correctness and legality of the judgment and award passed in M.A.C.P. No.600 of 2009 dated 31.01.2020 whereunder claim petition filed has been allowed in part and a total compensation of Rs.13,24,400/- with interest @ 9% per annum has been awarded as against claim of Rs.1,75,00,000/-. 2. Facts in brief which has led to filing of this appeal are as under. 3. The husband of the first claimant and father of second claimant, namely, Champakbhai Patel while proceeding in his Wagon-R car on 29.10.2009 to Surat from Virpur, an oncoming truck dashed against the Wagon-R, as a result of which said Champakbhai Patel and his daughter Ekta Champakbhai died at the spot due to accidental injuries they sustained in said accident. Hence, a claim petition came to be filed in M.A.C.P. No.600 of 2009 by the wife and son of the deceased seeking compensation for the death of Champakbhai Patel. In fact, other two claim petitions were also filed in respect of same accident which is not the subject-matter of the present appeal. Tribunal after evaluating the pleadings and evidence tendered by the parties as noticed hereinabove awarded total compensation of Rs.13,24,400/- under the following heads : Dependency Loss Rs.12,54,400/- Funeral expenses Rs.15,000/- Loss to Estate Rs.15,000/- Loss of Consortium Rs.40,000 Total Rs.13,24,400/- 4. It came to be held by the Tribunal that the driver of the Wagon-R was also negligent to the extent of 25% on account of there being head-on collision and as such said amount was ordered to be deducted from the compensation awarded to the dependents. Not being satisfied with the quantum of compensation awarded, this appeal has been filed. 5. We have heard Mr.Hiren Modi, learned counsel appearing for appellants – claimants and Ms.Kirti S. Pathak, learned advocate appearing for the insurer. Respondent Nos.1 and 2 are served and unrepresented. 6. Not being satisfied with the quantum of compensation awarded, this appeal has been filed. 5. We have heard Mr.Hiren Modi, learned counsel appearing for appellants – claimants and Ms.Kirti S. Pathak, learned advocate appearing for the insurer. Respondent Nos.1 and 2 are served and unrepresented. 6. It is the contention of Mr.Hiren Modi, learned counsel appearing for the claimants that Tribunal committed a serious error in awarding abysmally very less compensation without considering the material evidence available on record and in particular he would draw the attention of this Court to Exhibits- 74, 75 and 76 to contend that income of the deceased was by growing and supplying sugarcane to factories manufacturing sugar as evident from these records which the Tribunal has completely ignored. He would also contend that Tribunal has erred in not considering the fact that wife of the deceased who entered the witness-box has categorically denied that they did not carry on agricultural activities in the land owned by the deceased subsequent to his death and as such, Tribunal ought to have taken the entire income that was earned by the deceased as loss of income to dependents. He would also submit that Tribunal has not awarded just and reasonable compensation. Hence, he prays for enhancement of compensation under all heads. 7. Per contra, Ms.Kirti S. Pathak, learned counsel appearing for the insurer would support the judgment and award passed by the Tribunal and in support of her submissions, she would rely upon the judgments of the Apex Court in the cases of New India Assurance Company Limited vs. Yogesh Devi and others [ (2012) 3 SCC 613 ] and State of Haryana and others vs. Jasbir Kaur and others [ AIR 2003 SC 3696 ], to contend that where the land owned by the deceased is not lost to the dependents, there would be no loss of income and as such, Tribunal has rightly taken the income of the deceased at Rs.8,000/- per month and has ordered for payment of compensation towards loss of dependency which is just and reasonable. She would also contend that when claimants continue to own the agricultural land and said land not having been owned by the deceased alone and there being other four coowners, it cannot be gainsaid by the claimants that entire 40 Acres of land was being cultivated by deceased. She would also contend that when claimants continue to own the agricultural land and said land not having been owned by the deceased alone and there being other four coowners, it cannot be gainsaid by the claimants that entire 40 Acres of land was being cultivated by deceased. She would draw the attention of the Court to the award of the Tribunal whereunder these aspects have been dealt with and as such, she prays for dismissal of the appeal and prays for its confirmation. She would also submit that negligence aspect which has been dealt in detail by Tribunal is by assigning just and proper reasons which would not call for interference. 8. Having heard learned advocates appearing for the parties and on perusal of the case-papers, we are of the considered view that following points would arise for our consideration : (1) Whether Tribunal was correct in arriving at a conclusion that there was contributory negligence on the part of the driver of Wagon-R vehicle and as such 25% is to be deducted from the total compensation awarded ? (2) Whether compensation awarded by the Tribunal is just and reasonable or it requires to be modified? If so, to what extent? (3) What order ? 9. The aspects relating to the accident, issuance of policy to the offending vehicle and same being in force or vogue as on the date of accident are all aspects which are not in dispute and as such they are not delved upon by us in the present appeal as it would be repetition of facts. RE : POINT NO.1 10. The records on hand would clearly indicate that accident had occurred on 29.10.2009 at about 22.00 hours. The chargesheet has been filed by the jurisdictional police against the driver of the truck bearing No.GJ-07-X-5553 for the offence punishable under Sections 279, 304-A, 337 and 338 of IPC and Sections 177, 184 and 134 of the Motor Vehicles Act. This is not disputed by the insurer. In fact, insurer did not examine the driver of the truck. The contents of the chargesheet are not challenged by the insurer. This is not disputed by the insurer. In fact, insurer did not examine the driver of the truck. The contents of the chargesheet are not challenged by the insurer. These aspects though noticed by the Tribunal yet has jumped to a conclusion that on account of there being head-on collision, some negligence has to be attributed to the driver of the Wagon-R. This is an erroneous finding inasmuch as there being no evidence to suggest that some negligence has to be attributed to the driver of the Wagon-R. In other words, there cannot be any straight-jacket formula to arrive at a conclusion that on account of accident having occurred due to head-on collision, there has to be necessarily some negligence on the part of drivers of both the vehicles. A vehicle driven in a rash and negligent manner if it were to ram against the incoming vehicle necessarily it would be a headon collision and in such circumstances, it cannot be inferred that there was some negligence on the part of the drivers of both vehicles. In the present facts as noticed already hereinabove would disclose that driver of the truck has been chargesheeted and he has been proceeded against for rash and negligent driving and causing the accident in question. As such, the finding of Tribunal that some negligence has to be attributed to the driver of Wagon-R is based on surmises and conjunctures and that too without any evidence like that of the driver of the truck having been examined or any other independent witnessess having been examined on behalf of the insurer to prove the manner in which the accident had occurred or the accident had occurred also on account of some negligence attributable to the driver of the Wagon-R. In that view of the matter, we are of the considered view that Tribunal was not correct or in other words it fell into error in arriving at a conclusion that there was some negligence on the part of driver of Wagon-R. Accordingly, point No.1 is answered in the negative i.e. against the insurer and in favour of the claimants. RE. : POINT NO. 2 11. RE. : POINT NO. 2 11. Tribunal while determining the compensation payable to the dependents insofar as loss of dependency is concerned Tribunal has construed the income of the deceased at Rs.8,000/- per month, though overwhelming evidence which was available on record establish that deceased was an income tax assessee, owning agricultural lands and generating income from the agricultural activities carried on in the said land owned by him and has been virtually accepted by the Tribunal, yet it holds that he was getting income of Rs.8,000/- per month on the ground that agricultural land had remained with the claimants or to reject the contention of the claimants for considering the income of the deceased as prayed for in the claim petition i.e. Rs.1,50,000/- per month. 12. Tribunal at paragraph-18 has observed thus : “18. xxx xxx xxx Moreover, applicants xxx xxx xxx legal heirs. There is, however, as possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about deprivation of income is not strictly applicable to this case. In such a circumstances, xxx xxx xxx to be considered.” 13. This would clearly indicate that Tribunal had in fact arrived at a conclusion that there is loss of supervisory charges to the claimants for carrying on the agricultural activity in the land owned by deceased but did not undertake the exercise of calculating the extent of supervision charges that was required to be paid by the wife of the deceased in order to generate the same income as was being generated by the deceased during his lifetime. It is this supervision charge which requires to be compensated as loss of income to the dependents, inasmuch as the said supervisory charges will have to be necessarily paid by the claimants to a person whom they engage for supervising the agricultural activities in the land owned by the deceased. 14. Though Ms.Kirti Pathak, learned counsel appearing for the insurer would vehemently contend that land owned by the deceased was not by himself but it was jointly owned by four others, we are not accepting the said contention for the simple reason that Exhibits-74, 75 and 76 issued by the Cooperative Sugar Factories to which the claimant supplied the sugarcane grown in the land owned by him disclosed that extent of land was 40 Acres and said land was owned by the deceased. Hence, said plea of the insurer is rejected. Thus, loss of supervision charges which will have to be calculated for maintaining 40 Acres of agricultural land even by modest estimate cannot be less than Rs.15,000/- per month. If the same is taken into consideration and Rs.6,000/- per month is added towards prospective increase every year, the total loss or the money that will have to be expended by the claimants for payment towards supervisory charges would be Rs.21,000/- per month or the loss of income to the claimants would be Rs.21,000/- per month. Considering the number of dependents being two and applying the dicta laid down by the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another [ (2009) 6 SCC 121 ], 1/3rd is to be deducted from total income and when so deducted the total loss of income would be Rs.14,000/- per month and the multiplier which is adopted being 14 taking into consideration the age of deceased as 41 years being just and proper, compensation is accordingly redetermined as under : Supervisory charges Rs.15,000/- per month Prospective increase @ 40% Rs.6,000/- per month Total Rs.21,000/- per month Less: 1/3rd deducted Rs.7,000/- per month Total Rs.14,000/- per month = Rs.14,000/- x 12 x 14 = Rs.23,52,000/- Accordingly, a sum of Rs.23,52,000/- requires to be awarded towards loss of dependency which is just and reasonable compensation and same is awarded in substitution to sum of Rs.12,54,400/- awarded by the Tribunal. The compensation awarded under other heads being just and reasonable namely Rs.70,000/-, same is not interfered with. Accordingly, point No.2 is answered in favour of the claimants partly. Re: Point No. 3 15. For reasons aforestated, we proceed to pass following ORDER (i) Appeal is allowed in part. (ii) Judgment and award passed by the Tribunal in M.A.C.P. No.600 of 2019 dated 31.01.2020 is hereby modified and in substitution to what has been awarded by the Tribunal a sum of Rs.24,22,000/- with interest at 9% per annum is awarded which shall be from the date of petition till date of payment or deposit whichever is earlier. (iii) The apportionment and order for deposit as made by the Tribunal in paragraph- 5 of the operative portion of the order shall hold good for the substituted award. (iii) The apportionment and order for deposit as made by the Tribunal in paragraph- 5 of the operative portion of the order shall hold good for the substituted award. The insurer is directed to deposit the compensation amount expeditiously at any rate within an outer limit of four weeks from the date of receipt of certified copy of this order. Record and proceedings be sent back to the concerned Court, forthwith.