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FA/3855/2008 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3855 of 2008
With
CIVIL
APPLICATION No. 9835 of 2008
=========================================================
ORIENTAL
INSURANCE CO LTD - Appellant(s)
Versus
PAHADBHAI
LAKHABHAI PARMAR & 2 - Defendant(s)
=========================================================
Appearance
:
MR
KK NAIR for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr. K.K. Nair appearing on behalf of appellant ?
Oriental Insurance Company Limited.
2. The
appellant ? Insurance Company has challenged award passed by Motor
Accident Claims Tribunal, Nadiad in Motor Accident Claim Petition
No.253 of 2002 Exh.33 dated 13th September 2007. The
Claims Tribunal has awarded Rs.2,90,000/- with 9% interest in favour
of respondent claimant.
3. Learned
advocate Mr.Nair raised contention that Claims Tribunal has committed
gross error while considering the notional income Rs.1500/- for
future prospective income which has been taken into account and
looking to age of claimant 65 years wrongly applied 15 multiplier and
deceased was unmarried aged 22 years old even though 1/3 has deducted
for a personal expenses, but, according to him, claimants are
entitled only 1/3 dependency not 2/3.
4. Learned
advocate Mr. Nair relied upon decision of Apex Court reported in JT
2008 (2) SC 33 in case of Ramesh Singh & Anr. v. Satbir Singh &
Anr., where, Apex Court has considered age of deceased 22 years and
father’s age 55 years and mother’s age 52 years and 8 multiplier has
been applied.
5. Learned
advocate Mr. Nair also relied upon decision of Apex Court in case of
New India Assurance Company Limited v. Smt. Shanti Pathak and Ors.,
reported in 2007 (9) Scale 216, where, Apex court has considered age
of deceased 25 years and accordingly, considering the age of mother
65 years and father is also more than 65 years, 5 multiplier has been
applied.
6. Learned
advocate Mr. Nair also relied upon the decision of Apex Court in case
of Maharashtra State Road Transport Corporation v. Lalnipuii reported
in 2007 ACJ 561 ? Para 11, where, Apex Court has considered that
choice of ? whether multiplier depends upon age of the claimants
and not on the age of the deceased where parents are the claimants.
7. Except
that no other contention has been raised by learned advocate Mr.
Nair.
8. In
this case, accident occurred on 19th January 2002 at about
17-05 hours while going to Jamnagar Gurudwara on Indira Marg Road.
The vehicle involved in accident is Truck No.GTP-7911. The deceased
was admitted in GG Hospital, Jamnagar as an indoor patient and died
on 20th January 2002 at about 00-30 hours. The claim
petition was filed by claimant claiming Rs.5 lacs. The Insurance
Company has filed reply Exh.14 and raised several contentions not
accepting liability. The police case was registered vide I-CR No.38
of 2002 before Jamnagar City Division Police Station. The affidavit
of applicant claimant Pahadbhai Lakhabhai Parmar was filed vide
Exh.27. Thereafter, certain documents i.e. complaint, panchnama,
inquest panchnama, PM Note and Report of P.I. and school leaving
certificate of deceased were produced on record. It is necessary to
note that no documentary or oral evidence has been produced by
Insurance Company before Claims Tribunal and vide Exh.31, oral
evidence was closed by Insurance Company. Vide Exh.16, issues were
framed by Claims Tribunal and come to conclusion that opponent No.1
is held negligence because of rash and negligent driving with
excessive speed. Learned advocate Mr. Nair has not raised any
contention about issue of negligence. School Leaving Certificate vide
Exh.26 deceased’s birth date 1st June 1980 and accident
occurred on 19th January 2002. Therefore, deceased was
aged about 22 years. The Claims Tribunal has considered age of father
50 years and age of mother 45 years and also considering
cross-examination of respondent claimant. The age of father is 65 to
70 years and considering both i.e. age of claimant and age of
deceased, Claims Tribunal has applied 15 multiplier. The income
Rs.2,000/- proved by the claimant on the basis of oral evidence but
no documentary evidence was produced by claimant in support of
income. According to claimant, Exh.27, deceased was working in Nirma
Factory receiving salary of Rs.4,000/-, but, on the date of accident,
deceased was went for recruitment of police force, but, while
returning, accident occurred and he died. However, Claims Tribunal
has considered that in absence of cogent evidence for income,
notional income Rs.1500/- was assessed and considering future
prospective income, Claims Tribunal has considered Rs.3,000/- and
thereafter, 1/3rd has been deducted which comes to
Rs.2250/- and net dependency comes to Rs.1500/- and 15 multiplier has
been applied and Rs.2,70,000/- is considered as future dependency
loss, Rs.10,000/- loss of expectation of life and Rs.10,000/- being a
funeral expenses for going to take dead body in their village. In
all, Rs.2,90,000/- has been awarded with 9% interest.
9. Before
this Court, an advocate of Insurance Company has raised various
contentions as if that Insurance Company is standing in queue of
owner. These are the contentions which must have to be raised by
owner not by Insurance Company. The Insurance Company is entitled to
challenge or raised contention within a meaning of Section 149(2) of
M.V. Act. The Insurance Company is duty bound to indemnify the owner
according to terms and conditions of Insurance Policy.
10. Learned
advocate Mr. Nair submitted that application for permission under
Section 170 of MV Act is granted by Claims Tribunal. Therefore,
Insurance company is entitled to challenge quantum before Claims
Tribunal and this Court. The Insurance Company is having permission
under Section 170 raised contention about quantum awarded by Claims
Tribunal, but, before the Claims Tribunal, an advocate Mr. Divyeshwar
who was appearing on behalf of Insurance Company has not raised any
contention in respect to quantum. The issues were framed vide Exh.16
by Claims Tribunal and Tribunal has considered the arguments of both
sides. Learned advocate Mr. Dave appearing on behalf of Insurance
company before Claims Tribunal and according to his submissions made
by learned advocate Mr. Dave for Insurance Company at page 7 that in
absence of cogent evidence from respondent claimant, Claims Tribunal
shall have to consider notional income Rs.15000/- per year and 15
multiplier is to be applied and according to advocate of Insurance
Company, Rs.75,000/- being a loss of dependency, Rs.10,000/- for loss
of expectation of life and Rs.3,000/- for funeral expenses. In all,
it comes to Rs.88,000/- with 7.5% interest. So, it was the
submissions of advocate of Insurance Company with 15 multiplier that
can be applied in these facts of case. Now, learned advocate Mr. Nair
relying upon three decisions of Apex Court and made legal submissions
contrary to the submissions which were made by advocate of Insurance
Company before Claims Tribunal. An advocate of appellant appeared
before Claims Tribunal admitted that 15 multiplier may be applied.
Now, advocate before this court raising contention relying upon three
decisions of Apex Court as referred above and contended that only 8
multiplier is to be applied looking to the age of claimant. However,
contention raised by learned advocate Mr. Dave on behalf of Insurance
Company that deceased was unmarried, therefore, 2/3rd is
to be deducted as a personal expenses.
11. After
perusing the award in question, Claims Tribunal has considered
Rs.2,000/- income against suggestions of Rs.4,000/-, then, it
reducing to Rs.1500/- per month and prospective income comes to
Rs.4500 ? Rs.2250 which comes to Rs.1500/- dependency after
deducting 1/3rd amount being a personal expenses from
Rs.2250/- future prospect.
12. Learned
advocate Mr. Nair submitted that deceased was unmarried, therefore,
2/3rd dependency is not available to the claimant. The
view taken by Apex Court in case of Bijoy Kumar Dugar v.
Bidyadhar Dutta and others
reported in AIR
2006 SC 1255,
where, the Apex Court has considered that when deceased is a young
boy of 24 years old, was unmarried and claimants were his father and
mother, the dependency has to be calculated on the basis
that within two or three years the deceased would have married and
raised family and the monthly allowance he was giving to his parents
would have been cut down, thus, 1/3rd amount is to be
deducted instead of 2/3rd. The relevant observations made
by Apex Court in Para 8 is quoted as under :
?S8.
The deceased, a young boy of 24 years old, was unmarried and the
claimants were his father and mother, the dependency has to be
calculated on the basis that within two or three years the deceased
would have married and raised family and the monthly allowance he
was giving to his parents would have been cut down. Thus, in our
view, the MACT has awarded just and reasonable compensation to the
claimants.??
13. Recently,
the Apex Court has considered the same in case of Bilkish
V.United India Insurance Co. Ltd. and Another
reported in 2008 ACJ 1357.
Relevant observations made by apex court in Para 4 is reproduced as
under, where, Apex Court has considered that incumbent was a bachelor
and he could not have spend more than 1/3rd of his total
income for personal use and rest of the amount earned by
him would certainly go to the family kitty. Therefore, determining
the loss of dependency by 50% was not correct. Therefore, we
assess that he must be spending 1/3rd towards personal use and
contributing 2/3rd of his income to his family. Accordingly, lost of
dependency has been worked out on the basis of 2/3rd not
1/3rd.
?S4.
After hearing learned counsel for the parties, we are of the opinion
that the view taken by the High Court & Tribunal is not correct.
The incumbent was a bachelor and he could not have spent more than
1/3rd of his total income for personal use and rest of the amount
earned by him would certainly go to the family kitty. Therefore,
determining the loss of dependency by 50% was not correct.
Therefore, we assess that he must be spending 1/3rd towards personal
use and contributing 2/3rd of his income to his family.
Therefore, we work out that Rs. 30,000/- earned by him per annum.
The loss of dependency was 2/3rd i.e. Rs. 20,000/- . The multiplier
of ’11’ applied for loss of dependency was also not correct and as
per schedule appended to the Motor Vehicles Act, 1988 it should be
’12’. Applying the multiplier of 12 the total loss of dependency
will be Rs. 20,000/-x 12 = Rs. 2,40,000/- and Rs, 10,000/- towards
loss of estate & funeral expenses, the total compensation comes
to Rs. 2,50,000/- and incumbent is entitled for interest @ 9/% per
annum from the date of the petition. The appeal is allowed with
the aforesaid modification. If any amount had already been paid to
the claimant then that amount may be deducted from the total amount.
Consequently, the appeal is allowed in part with no order as to
costs.??
14. Therefore,
considering the fact that father and mother aged about 65 to 70 years
as per their affidavit having only one son aged 22 years died all of
sudden, this being a jerk to the family and to father and mother,
then, how they will maintain family at the age of 65 to 70 years
without any support of his son. Therefore, according to my opinion,
considering age 22 years is marriageable age and therefore, 1/3rd
deduction is perfectly justified considering the facts and
circumstances of the case and it cannot consider to be unreasonable
in any manner.
15. The
contention about 15 multiplier which has been applied looking to age
of claimant.
16. I
have considered three decisions which has been relied upon by learned
advocate Mr. Nair. The deceased was working in factory and on the
date of accident, he was coming back from a recruitment procedure for
police force. He was not unemployed as per evidence of father,
therefore, this Court has considered the matter that whether total
compensation which has been awarded by Claims Tribunal is reasonable,
just and proper or not, that is the object of Section 168 of MV Act
is to be considered by Claims Tribunal. So, looking to amount of
compensation Rs.2,90,000/- which has been awarded by Claims Tribunal
if it is invested in any nationalised bank looking to current rate of
interest 7.5%, then, almost income of deceased received by claimants.
So, the ultimate purpose to award compensation to see that the
claimant may not remain without any source of income when bread
winner died suddenly in the family. A jerk received by family may not
be destroyed because of not having a help on financial side. This
being a help to family on financial side, so, family can survive and
maintain the same in absence of son aged 22 years who died. [See
: 2005 (8) Scale 173 ? K.I. Bindee and 2006 (11) GHJ 552]
17. Therefore,
according to my opinion, 15 multiplier which has been suggested by
learned advocate Mr. Dave appeared on behalf of Insurance Company
before Claims Tribunal is reasonable, just and proper. Only different
was that learned advocate Mr. Dave suggested 1/3rd
dependency and Claims Tribunal has accepted 2/3rd
dependency, for that, recent decision of Apex Court is applied in
case of marriageable age, 1/3rd deduction is legal and
valid. Therefore, according to my opinion, contention which has been
raised by learned advocate Mr. Nair cannot be accepted in light of
the facts that father and mother are aged about 65 to 70 years who
lost their son aged about 22 years who was working in factory and
except their son, no other heirs are available in family in absence
of their son, therefore, how they can maintain their lives and
family. Therefore, compensation Rs.2,90,000/- awarded by Claims
Tribunal is reasonable, just and proper which cannot consider to be
unreasonable, unjust and arbitrary in any manner. Therefore,
contention raised by learned advocate Mr. Nair cannot be accepted and
therefore, same are rejected.
18. There
is no substance in appeal. Accordingly, present appeal is dismissed.
19. The
amount, if any, which has been deposited by Insurance Company before
registry of this Court be transmitted to Claims Tribunal concerned
immediately.
20. In
view of above order passed by this Court in appeal, no further order
is required to be passed in Civil Application. Accordingly, Civil
Application is disposed of.
[H.K.
RATHOD, J.]
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