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FA/5084/2008 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5084 of 2008
With
CIVIL
APPLICATION No. 12470 of 2008
=========================================================
UNITED
INDIA INSURANCE COMPANYLIMITED - Appellant(s)
Versus
KAILASHBEN
JITENDRABHAI PATEL & 4 - Defendant(s)
=========================================================
Appearance
:
MS
HINA DESAI for
Appellant(s) : 1,
MR MTM HAKIM for Defendant(s) : 1 - 3.
None
for Defendant(s) : 4 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 10/11/2008
ORAL
ORDER
1. Heard learned advocate Mrs.Hina Desai for the appellant Insurance Co. and learned advocate Mr.M.T.M.Hakim for the respondent Nos.1 to 3 ? original claimants on caveat.
2. In the present appeal, the appellant ? Insurance Co. has challenged the award passed by MAC Tribunal (Aux.), FTC No.1, Bharuch in MACP No.853 of 1999 vide Exh.56 dated 1.5.2008 whereby the claims Tribunal has awarded Rs.5,45,000/- with 9% interest in favour of respondents claimants.
3. Learned advocate Mrs.Hina Desai has raised contention that claims Tribunal has committed gross error in not deducting 1/3rd amount being a personal expenses of the deceased. She has also raised contention that claims Tribunal has assessed the income of the deceased as Rs.2500/- without there being any cogent evidence on record. She also submitted that deceased was having experience of 10 years as Mandap decorator, but the deceased was minor as suggested in certificate. She also submitted that multiplier of 17 is also on higher side. She also submitted that claimants have claimed Rs.5 lacs as compensation but, the claims Tribunal has awarded more amount than claimed and for that, the claims Tribunal has no jurisdiction as necessary amendment was not made in the application and therefore, the claims Tribunal has committed gross error in awarding the compensation in favour of respondents claimants.
4. Learned advocate Mr.Hakim appearing on behalf of respondents claimants submitted that deceased was the third party and pedestrian dashed by opponent No.1 – truck driver and due to that, he expired. He also submitted that there was no fault on the part of deceased but, there was a rash and negligent driving of opponent No.1, who dashed the truck with deceased which ultimately resulted into death of deceased. He also submitted that 1/3rd deduction is already made by claims Tribunal while assessing the dependency of the claimants. He also submitted that claims Tribunal has assessed the income of the deceased as Rs.2500/- from two sources, one from agricultural field and from Mandap decoration. Therefore, according to him, the claims Tribunal has rightly assessed the income of the deceased and after deducting 1/3rd and applying the formula with prospective future income, the dependency of Rs.2500/- has rightly been arrived at by the claims Tribunal. He also submitted that multiplier of 17 is applied by claims Tribunal with consent of advocate of the appellant and therefore, now to raise contention against multiplier, cannot be accepted. He also submitted that claims Tribunal has power to grant more compensation than claimed by the claimants and there is no restriction or any other provision is made in the MV Act which restricts the power of the claims Tribunal to award more compensation than claimed by respondents claimants. He further submitted that it is a duty of the claims Tribunal to work out reasonable and just compensation in case of accident and even if the claimants have made the claim on lower side, then also the claims Tribunal can award just and reasonable compensation to the respondents claimants. Therefore, according to him, claims Tribunal has not committed any error in awarding the compensation which requires any interference by this Court.
5. I have considered the submissions made by both the learned advocates and also perused the award passed by claims Tribunal. Before the claims Tribunal, no one remained present on behalf of owner of the vehicle and opponent No.1 – driver was personally remained present. The accident had occurred on 20.2.1999 when deceased was standing near to road for crossing the road at village Matiad near ST Stand, at that occasion opponent No.1 came with Truck bearing registration No.GJ-16-U-6553 rashly and negligently and dashed with the deceased, who received serious injuries and died. Thereafter, an FIR was lodged against opponent No.1 in Ankleshwar Police Station. The deceased was 23 years old and married person and was doing the work of Mandap decoration as well as agricultural work with his father. He was also having motor pump to have the water which has been distributed amongst the neighbour field those who required the water and on that ground, deceased was having the income from agricultural field including cultivation from the agricultural field. The claimants have claimed Rs.5 lacs as compensation. Against the claim petition, written statement was filed by appellant ? Insurance Co. vide Exh.17 raising certain contention and denied all facts narrated in the claim petition. Vide Exh.27, issues were framed by claims Tribunal. Thereafter, one Ramanbhai Revabhai Patel was examined vide Exh.36 and applicant No.3 was the widow of the deceased. The claims Tribunal has considered the evidence of father of the deceased and thereafter, considering the date of birth ? 16.4.1975, at the time of death, deceased was aged about 23 years. Vide Exh.53, written arguments were submitted by claimants and according to claimants, deceased was having the income from two sources, one is from agricultural field and machine and also doing work of Mandap decoration. Ultimately, the claims Tribunal has considered the written arguments of the claimants and panchnama vide Exh.40, xerox copy of vardhi vide Exh.39, PM Note vide Exh.42, charge sheet filed against the opponent No.1 vide Exh.43, school leaving certificate vide Exh.44, member’s card of Ankleshwar Nagrik Bank vide Exh.45 and certificate of Dhanturia Gram Panchayat which suggests that deceased was doing the work of Mandap decoration since last 10 years vide Exh.48, copy of 7/12 abstract vide Exh.49. Thereafter, the claims Tribunal has examined the merits and come to conclusion on the basis of Panchnama and other relevant records that accident occurred due to rash and negligent driving of opponent No.1. Thereafter, the claims Tribunal has examined the question of quantum on the basis of evidence on record and come to conclusion that looking to the evidence on record vide Exh.49, the agricultural land is belonging to father of the deceased and that some of the land is also belonging to the mother of the deceased. Therefore, the claims Tribunal has considered the income of Rs.2500/- from both the sources after deducting 1/3rd considering future prospective income which comes to Rs.2500/- dependency and thereafter, with consent of both the learned advocates, multiplier of 17 has been applied which comes to Rs.5,10,000/-, for loss of consortium, Rs.10,000/-, for loss of estate, Rs.20000/- and Rs.5000/- for funeral expenses, totaling to Rs.5,45,000/- awarded by claims Tribunal in favour of respondents claimants.
6. According to my opinion, the claims Tribunal has rightly examined the matter relying upon the evidence which were on record and also rightly calculated the compensation on the basis of material on record. The claims Tribunal has given cogent reasons in support of its conclusion and has not committed any error which requires interference by this Court. It is a settled law that claims Tribunal can grant more compensation than claimed by claimant and for that, there is no restriction provided under the provisions of the MV Act which requires a specific application for amendment in the claim petition. Therefore, the contention raised by learned advocate Mrs.Hina Desai cannot be accepted and same are rejected. Therefore, there is no substance in the present appeal. Accordingly, present appeal is dismissed. The amount deposited with this Court for the purpose of appeal shall be transmitted to the Tribunal concerned.
7. As the First Appeal No.5084 of 2008 is dismissed, no order is necessitated in Civil Application No.12470 of 2008. Accordingly, Civil Application No.12470 of 2008 is disposed of.
(H.K.RATHOD,J.)
(vipul)
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