FA/2587/2007 2/ 20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2587 of 2007 With CIVIL APPLICATION No. 7429 of 2007 In FIRST APPEAL No. 2587 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NATIONAL INSURANCE CO LTD. - Appellant(s) Versus NIRUBEN NATWARBHAI PATEL - Respondent(s) ========================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, MR AMIT N PATEL for Respondent Nos.1 to 5, RULE SERVED for Respondent Nos.6 and 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/07/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Challenge
in this appeal filed under Section 173 of the Motor Vehicles Act,
1988 (‘the Act’ for short) is to the correctness of the judgment and
award dated 8.10.2004 rendered in Motor Accident Claim Petition
No.261 of 1999 by the Motor Accident Claims Tribunal (Aux), 3rd
Fast Track Court, Navsari (‘the Tribunal’ for short) by which the
claim petition filed under Section 166 of the Act by respondent Nos.1
to 5 (‘the claimants’ for short) against the appellant ý National
Insurance Company Limited and respondent Nos.6 and 7, driver and
owner of the Jeep Tempo Trex bearing registration No. GJ-6-AA-9235
(‘the offending vehicle’ for short) claiming compensation of
Rs.37,43,900/- on account of the untimely demise of Natvarbhai
Naranbhai Patel, in a vehicular accident which took place on
14.4.1999 has been partly allowed and thereby the claimants were held
entitled to recover compensation of Rs.17,00,500/- together with
interest at the rate of 9% per annum from the date of filing of the
claim petition till realization and proportionate costs of the claim
petition and accordingly the appellant-insurance company and
respondent Nos.6 and 7, driver and owner of the offending vehicle,
were jointly and severally held liable to pay the said amount as
compensation to the claimants and ordered to pay the same within 30
days.
2. As
per the averments made in the claim petition, on the fateful day
i.e., 14.4.1999, at about 8.15 P.M. Natvarbhai Naranbhai Patel, was
proceeding on his motor cycle bearing registration No.GJ-15-3322 from
Bhinar towards Vansda. He was riding the motor cycle on the correct
side of the road, at a moderate speed and with due care and caution.
When the motor cycle reached at Nani Bhamti village, on
Billimora-Vansda Road, from Vansda side, respondent No.6 came with
the offending vehicle driving it at an excessive speed and in a rash
and negligent manner. As a result of negligent driving on the part
of respondent No.6, he lost control over the offending vehicle and it
dashed with the motor cycle on which Natvarbhai was proceeding. As a
result of the severe impact, Natvarbhai was thrown off the motor
cycle and fell on the road which resulted in serious injuries all
over his body. While he was being shifted to hospital from the place
of the accident, he succumbed to the injuries on the way. After the
accident, respondent No.6, the driver of the offending vehicle fled
from the scene of accident. An FIR came to be lodged against
respondent No.6, driver of the offending vehicle, at Vansda Police
Station.
2.1.
As per the averments made in the claim petition, the accident had
taken place due to rash and negligent driving on the part of
respondent No.6 who was driving the offending vehicle at the relevant
time and, therefore, he was primarily liable to pay compensation.
Since the offending vehicle was owned by respondent No.7, he was
vicariously liable to pay compensation for the wrong committed by his
driver. The offending vehicle was insured with the appellant and,
therefore, the appellant was liable to indemnify the insured i.e.,
owner of the offending vehicle ý respondent No.7 against the award
that may be passed by the Tribunal in favour of the claimants.
Therefore, according to the claimants, the appellant and respondent
Nos.6 and 7 being the insurer, driver and owner of the offending
vehicle, jointly and severally, were liable to pay compensation as
may be awarded by the Tribunal in favour of the claimants.
2.2. Putting
forward the claim for compensation, it was averred by the claimants
that at the time of the accident Natvarbhai was aged about 40 years
and was serving as a Research Assistant in the Tribal Project Office,
Vansda and was earning handsome salary. On account of his untimely
demise, the claimants who were fully dependent on his income, have
lost the dependency benefits available from him. Therefore, on all
counts, the claimants have claimed total compensation of
Rs.37,43,900/- together with interest and cost from the driver, owner
and insurer of the offending vehicle.
3. The
claim petition was contested by the appellant-National insurance
Company Limited by filing written statement wherein, inter alia, the
brief particulars of the accident were not admitted. It was denied
that Natvarbhai Patel was riding the motor cycle on the correct side
of the road and at a moderate speed and at that time the driver of
the offending vehicle came from Vansda side driving it in a rash and
negligent manner and with recessive speed. It was also denied that
as a result of the negligent driving of the offending vehicle by
respondent No.6 the accident took place. It was contended that the
accident had taken place because of the rash and negligent riding of
the motor cycle by Natvarbhai who lost control over it and dashed it
with the offending vehicle and as a result of it he fell down and
sustained injuries. Hence, according to the insurance company, the
driver of the offending vehicle was not responsible for the accident
and hence the appellant was not liable to pay any amount of
compensation to the claimants.
3.1. So
far as the claim of compensation put forward by the claimants is
concerned, it was denied by the appellant. The income of the deceased
was also denied by the appellant. It was also pleaded that the
claimants were not entitled to interest on the amount of
compensation. It was also pleaded that the claim was exaggerated. On
these grounds, it was prayed by the insurance company to dismiss the
claim petition.
4. On
the pleadings of the parties, the Tribunal framed issues and after
considering the oral as well as documentary evidence and more
particularly Ex.32, FIR and Ex.33, Panchnama of the scene of accident
and the fact that respondent No.6, driver of the offending vehicle,
fled from the scene of accident, came to the conclusion that the
accident was the result of rash and negligent driving on the part
of the driver of the offending vehicle i.e., respondent No.6 and his
negligent driving claimed the life of Natvarbhai Patel and,
therefore, he being the driver of the offending vehicle was primarily
liable to pay compensation. It was further held that the offending
vehicle was owned by respondent No.7 and hence he was vicariously
liable to pay compensation. The appellant being the insurer of the
offending vehicle was liable to indemnify the insured against the
claim to be passed against the owner of the offending vehicle and
hence it was also liable to pay compensation. Therefore it was held
that the appellant, respondent Nos.6 and 7, were jointly and
severally liable to pay compensation to the claimants.
4.1. So
far as the quantification of compensation is concerned, the Tribunal
on the basis of the evidence of respondent No.4, Naranbhai Koyabhai
Patel, father of deceased Natvarbhai, Ex.29, came to the conclusion
that at the time of accident the deceased was 41 years 9 months old
and was serving as Research Assistant with Tribal Project Office at
Vansda and drawing salary of Rs.9505/- inclusive of D.A., Medical
Allowance and tribal allowance. The Tribunal thereafter adopted the
standard formula followed by the Supreme Court in catena of decisions
and doubled the said amount in order to find out the average
prospective income and assessed the average prospective income at
Rs.9,325/- which comes to Rs.1,11,900/- per annum and thereafter
multiplier of 15 was applied and accordingly assessed the dependency
benefit at Rs.16,78,500/- and added Rs.20,000/- for loss to estate
and Rs.2,000/- for funeral expenses and thus awarded the amount of
compensation in the following break-up:
Rs.
16,78,500/- dependency benefits
Rs.
20,000/- loss of estate;
Rs.
2,000/- funeral expenses
————–
Rs.17,00,500/-
Total compensation
============
4.2. The
Tribunal has awarded interest at the rate of 9% per annum from the
date of the claim petition till realization and proportionate costs
of the claim petition, which has given rise to instant appeal at the
instance of the appellant ý National Insurance Company Limited.
5. Ms.
Megha Jani, learned advocate for the appellant, in support of the
appeal, has mainly raised the following submissions:
(a) That
the Tribunal has erred in doubling the income of the deceased for the
purpose of calculating the prospective monthly income at Rs.13,987.50
which is on higher side and excessive;
(b) As
the deceased was 41 years of age at the time of death, the Tribunal
has erred in applying 15 multiplier. According to her, it should not
have been more than 12.
5.1. In
support of the aforesaid submission, she has relied upon the
following decisions of the Supreme Court:
(i) Nagappa
v. Gurudayal Singh and others, 2003 ACJ 12;
(ii) T.N.
State Transport Corporation Limited v. S. Rajapriya and others,
(2005) 6 SCC 236,
(iii) Andhra
Pradesh State Road Transport Corporation and another v. M. Ramadevi
and others, 2008 ACJ 930;
(iv) Oriental
Insurance Company Limited v. Jashuben and others, 2008 ACJ 1097.
5.2. She,
therefore, submitted that the impugned judgment and award may be
modified by awarding just and adequate compensation and the appeal
may be allowed to that extent. She therefore urged to allow the
appeal.
6. Per
contra, Mr. Amit N. Patel, learned advocate for the claimants, has
contended that the impugned judgment and award does not require any
interference as the Tribunal has rightly considered the average
prospective income of the deceased and also applied the correct
multiplier. Accordingly to him, the tribunal has rightly awarded
just compensation looking to the erosion of rupee value and
inflationary trend.
6.1. In
support of the aforesaid submissions, he has relied upon the
following decisions of the Supreme Court:
(i) H.S.
Ahammed Jussain and another v. Irfan Ahammed and another, 2002(2)
GLR 1825;
(ii) Abati
Bezbaruah v. Dy. Director General, Geological Survey of India and
another, AIR 2003 SC 1817.
(iii) Chellammal
and others v. Kailasam and another, 2006 ACJ 854;
6.2.
He, therefore, submitted that no interference with the impugned
judgment and award is called for in this appeal as the Tribunal has
rightly assessed average prospective income of the deceased and also
applied the correct multiplier. He therefore urged to dismiss the
appeal.
7. We
have considered the submissions advanced by Ms. Megha Jani, learned
advocate for the appellant and Mr. Amit Patel, learned advocate for
the claimants. We have also perused the impugned judgment and award
as well as the averments made in the claim petition and the memo of
appeal so also the paper book and also the judgments cited at the
bar.
8. So
far as the factum of involvement of the offending vehicle in the
accident as well as the negligence on the part of the driver of the
offending vehicle are concerned, no dispute is raised in the appeal
and, therefore, we do not deemed it expedient to reappreciate the
evidence in that regard and we confirm the finding recorded by the
Tribunal with regard to the attribution of negligence on the part of
the driver of the offending vehicle.
9. Now,
the only question which calls for consideration of this Court is as
to whether the assessment of average prospective dependency benefit
as well as the multiplier of 15 adopted by the Tribunal is is just
and reasonable or it is on higher side requiring interference of this
Court by modifying the same.
10. In
this connection, adverting to the oral evidence of respondent No.4,
Naranbhai Koyabhai Patel, Ex.29, he has inter alia testified that
the deceased was born on 9.7.1957 and the accident had taken place on
14.4.1999 and the age of the deceased at the time of accident was 41
years and 9 months and he was serving as a Research Assistant with
Tribal Project Office at Vansda and was drawing salary of Rs.9,505/-
per month including D.A., Medical allowance and tribal allowance. In
support of the said evidence, he has also produced pay slip at Ex.38.
The Tribunal on the basis of the said evidence, considering the
income of the deceased at the rate of Rs.9,505/- per month and also
considering various decisions of the Supreme Court and also
considering the future prospects, assessed the average prospective
income by doubling basic pay and allowing D.A. and other allowances
available at the time of death, found out the net dependency benefit
available at Rs.13,987.50 and from that 1/3rd amount was
deducted for his personal upkeep and thereafter worked the average
prospective income at Rs.9,325/- per month and worked the annual
prospective income at Rs.1,11,900/- On reappraisal of the evidence,
according to us, the calculation made by the Tribunal for
determination of prospective income is just and in accordance with
the latest decisions of the Supreme Court and hence no interference
is called for in this appeal.
11. So
far as the application of multiplier is concerned, the Tribunal, on
the basis of the age of the deceased which was 41 years and 9 months,
has applied 15 purchaser factor, which, according to us, is on higher
side in view of the latest decisions of the Supreme Court. In the
case of Oriental Insurance Co. Ltd. v. Jashuben (supra) the
deceased was aged 35 years and was an Assistant with ONGC and in that
case the Supreme Court has adopted 13 multiplier. In the case of A.P.
State Road transport Corporation v. M. Ramadevi (supra) where the
deceased was 40 years old, the Supreme court has adopted 10
multiplier. In the case of T.N. State Transport Corporation Ltd.
v. S. Rajapriya (supra), the deceased was of 38 years and the
Supreme Court has applied 12 multiplier.
12.
Applying the principles laid down by the Supreme Court in the above
referred to judgments, according to us, 13 multiplier would be just
and proper in order to find out the correct, just and adequate net
dependency benefits available to the claimants. We have worked out
the dependency benefits at the rate of Rs.1,11,900 per annum and has
applied 13 multiplier which comes to Rs.14,54,700/- To that we shall
add an amount of Rs.20,000/- towards loss to the estate and
Rs.2,000/- towards funeral expenses as awarded by the Tribunal.
Therefore, the entitlement of the claimants comes in the following
break up:
Rs.14,54,700.00
loss of dependency benefits
Rs.
20,000.00 loss to the estate
Rs.
2,000.00 funeral expenses
—————
Rs.14,76,700.00
total compensation.
===============
13. Seen
in the above context, the appeal deserves to be allowed in part by
reducing the amount of compensation and the award is also required to
be modified to the extent indicated in this judgment.
14. For
the foregoing reasons, the appeal succeeds in part and accordingly it
is partly allowed with no order as to costs of this appeal. The
impugned judgment and award dated 8.10.2004 rendered by the MACT
(Aux) 3rd Fast Track Court, Navsari in MACP No. 261 of 1999 awarding
total compensation of Rs.17,00,500/- is hereby modified by awarding
total compensation of Rs. 14,76,700/- instead of Rs.17,00,500/- as
awarded by the Tribunal, together with interest at the rate of 9%
per annum from the date of the filing of the claim petition till
realization and proportionate costs of the claim petition. Rest of
the directions with regard to apportionment, investment and
disbursement made by the Tribunal is hereby confirmed.
14.1. Modified
award to be drawn accordingly.
14.2. The
appeal is disposed of accordingly.
15. Ms.
Megha Jani, learned advocate for the appellant, states that the
appellant ý insurance company has deposited Rs.25,03,035/- with the
concerned Tribunal and Rs.25,000/- deposited with the Registry of
this Court at the time of filing of the appeal was also transmitted
to the concerned Tribunal. The Tribunal concerned is directed to pass
appropriate orders with regard to apportionment, investment and
disbursement of the amount of compensation which has been deposited
by the appellant ý insurance company in terms of the directions
contained in the impugned judgment and award. If the amount deposited
by the appellant-insurance company is in excess after satisfying the
compensation awarded to the claimants as per the modified award
passed by this Court, the excess amount shall be refunded to the
appellant-insurance company. If the amount deposited by the appellant
is less than the amount of compensation awarded to the claimants as
per the modified award passed by this Court, the appellant-insurance
company shall deposit the same within a period of six weeks from
today.
16. Since
the appeal is partly allowed by modifying the award, the civil
application which is filed for stay of the impugned judgment and
award now does not assume any survival value and hence the same is
disposed of with no order as to costs. Rule is discharged.
(A.M.
Kapadia, J.)
(Z.K.
Saiyed, J.)
…
(karan)