{"id":217074,"date":"2008-07-18T00:00:00","date_gmt":"2008-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-vs-niruben-on-18-july-2008"},"modified":"2018-05-03T04:48:33","modified_gmt":"2018-05-02T23:18:33","slug":"national-vs-niruben-on-18-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-vs-niruben-on-18-july-2008","title":{"rendered":"National vs Niruben on 18 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
National vs Niruben on 18 July, 2008<\/div>\n
Bench: A.M.Kapadia And Z.K.Saiyed, Z.K.Saiyed<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nFA\/2587\/2007\t 2\/ 20\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 2587 of 2007\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 7429 of 2007\n \n\nIn\nFIRST APPEAL No. 2587 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nNATIONAL\nINSURANCE CO LTD. - Appellant(s)\n \n\nVersus\n \n\nNIRUBEN\nNATWARBHAI PATEL - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nMEGHA JANI for\nAppellant(s) : 1, \nMR AMIT N PATEL for Respondent Nos.1 to 5,  \nRULE\nSERVED for Respondent Nos.6 and 7.\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 18\/07\/2008 \n\n \n\n \n \n\t\t\t\tORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
1.\tChallenge
\nin this appeal filed under Section 173 of the Motor Vehicles  Act,
\n1988 (‘the Act’ for short) is to the correctness of the judgment and
\naward dated 8.10.2004 rendered in Motor Accident Claim Petition
\nNo.261 of 1999 by the Motor Accident Claims Tribunal (Aux), 3rd
\nFast Track Court, Navsari (‘the Tribunal’ for short) by which the
\nclaim petition filed under Section 166 of the Act by respondent Nos.1
\nto 5 (‘the claimants’ for short) against the appellant \u00fd  National
\nInsurance Company Limited and respondent Nos.6 and 7, driver and
\nowner of the Jeep Tempo Trex bearing registration No. GJ-6-AA-9235
\n(‘the offending vehicle’ for short) claiming compensation of
\nRs.37,43,900\/- on account of the untimely demise of Natvarbhai
\nNaranbhai Patel, in a vehicular accident which took place on
\n14.4.1999 has been partly allowed and thereby the claimants were held
\nentitled to recover compensation of Rs.17,00,500\/- together with
\ninterest at the rate of 9% per annum from the date of filing of the
\nclaim  petition till realization and proportionate costs of the claim
\npetition and accordingly the appellant-insurance company and
\nrespondent Nos.6 and 7, driver and owner of the offending vehicle,
\nwere jointly and severally held liable to pay the said amount as
\ncompensation to the claimants and ordered to pay the same within 30
\ndays.\n<\/p>\n
2.\tAs
\nper the averments made in the claim petition, on the fateful day
\ni.e., 14.4.1999, at about 8.15 P.M. Natvarbhai Naranbhai Patel, was
\nproceeding on his motor cycle bearing registration No.GJ-15-3322 from
\nBhinar towards Vansda. He was riding the motor cycle on the correct
\nside of the road, at a moderate speed and with due care and caution.
\nWhen the motor cycle reached at Nani Bhamti village, on
\nBillimora-Vansda Road, from Vansda side, respondent No.6 came with
\nthe offending vehicle driving it at an excessive speed and in a rash
\nand negligent manner. As a result of  negligent driving on the part
\nof respondent No.6, he lost control over the offending vehicle and it
\ndashed  with the motor cycle on which Natvarbhai was proceeding. As a
\nresult of the severe impact, Natvarbhai was thrown off the motor
\ncycle and fell on the road which resulted in serious  injuries all
\nover his body. While he was being shifted to hospital from the place
\nof the accident, he succumbed to the injuries on the way. After the
\naccident, respondent No.6, the driver of the offending vehicle fled
\nfrom the scene of accident. An FIR came to be lodged against
\nrespondent No.6, driver of the offending vehicle, at Vansda Police
\nStation.\n<\/p>\n
2.1.\n<\/p>\n
 As per the averments made in the claim petition, the accident had
\ntaken place due to rash and negligent driving on the part of
\nrespondent No.6 who was driving the offending vehicle at the relevant
\ntime and, therefore, he was primarily liable to pay compensation.
\nSince the offending vehicle was owned by respondent No.7, he was
\nvicariously liable to pay compensation for the wrong committed by his
\ndriver. The offending vehicle was insured with the appellant and,
\ntherefore, the appellant was liable to indemnify the insured i.e.,
\nowner of the offending vehicle \u00fd  respondent No.7 against the award
\nthat may be passed by the Tribunal in favour of the claimants.
\nTherefore, according to the claimants, the appellant and respondent
\nNos.6 and 7 being the insurer, driver and owner of the offending
\nvehicle, jointly and severally,  were liable to pay compensation as
\nmay be awarded by the Tribunal in favour of the claimants.\n<\/p>\n
2.2.\t\tPutting
\nforward the claim for compensation, it was  averred by the claimants
\nthat at the time of the accident Natvarbhai was aged about 40 years
\nand was serving as a Research Assistant in the Tribal Project Office,
\nVansda and was earning handsome salary. On account of his untimely
\ndemise, the claimants who were fully dependent on his income, have
\nlost the dependency benefits available from him. Therefore, on all
\ncounts, the claimants have claimed total compensation of
\nRs.37,43,900\/- together with interest and cost from the driver, owner
\nand insurer of the offending vehicle.\n<\/p>\n
3.\tThe
\nclaim petition was contested by the appellant-National insurance
\nCompany Limited by filing written statement wherein, inter alia, the
\nbrief particulars of the accident were not admitted. It was denied
\nthat Natvarbhai Patel was riding the motor cycle on the correct side
\nof the road and at a moderate speed and at that time the driver of
\nthe offending vehicle came from Vansda side driving it in a rash and
\nnegligent manner and with recessive speed. It was also denied that
\nas a result of the negligent driving of the offending vehicle by
\nrespondent No.6 the accident took place. It was contended that the
\naccident had taken place because of the rash and negligent riding of
\nthe motor cycle by Natvarbhai who lost control over it and dashed it
\nwith the offending vehicle and as a result of it he fell down and
\nsustained injuries. Hence, according to the insurance company, the
\ndriver of the offending vehicle was not responsible for the accident
\nand hence the appellant was not liable to pay any amount of
\ncompensation to the claimants.\n<\/p>\n
3.1.\t\tSo
\nfar as the claim of compensation put forward by the claimants is
\nconcerned, it was denied by the appellant. The income of the deceased
\nwas also denied by the appellant. It was also pleaded that the
\nclaimants were not entitled to interest on the amount of
\ncompensation. It was also pleaded that the claim was exaggerated. On
\nthese grounds, it was prayed by the insurance company to dismiss the
\nclaim petition.\n<\/p>\n
4.\t\tOn
\nthe pleadings of the parties, the Tribunal framed issues and after
\nconsidering the oral as well as documentary evidence and more
\nparticularly Ex.32, FIR and Ex.33, Panchnama of the scene of accident
\nand the fact that respondent No.6, driver of the offending vehicle,
\nfled from the scene of accident,  came to the conclusion that the
\naccident was the  result of   rash and negligent driving on the part
\nof the driver of the offending vehicle i.e., respondent No.6 and his
\nnegligent driving claimed the life of Natvarbhai Patel and,
\ntherefore, he being the driver of the offending vehicle was primarily
\nliable to pay compensation. It was further held that the offending
\nvehicle was owned by respondent No.7 and hence he was vicariously
\nliable to pay compensation. The appellant being the insurer of the
\noffending vehicle  was liable to indemnify the insured against the
\nclaim to be passed against the owner of the offending vehicle and
\nhence it was also liable to pay compensation. Therefore it was held
\nthat the appellant, respondent Nos.6 and 7, were jointly and
\nseverally liable to pay compensation to the claimants.\n<\/p>\n
4.1.\t\tSo
\nfar as the quantification of compensation is concerned, the Tribunal
\non the basis of the evidence of respondent No.4, Naranbhai Koyabhai
\nPatel, father of deceased Natvarbhai, Ex.29, came to the conclusion
\nthat at the time of accident the deceased was 41 years 9 months old
\nand was serving as Research Assistant with Tribal Project Office at
\nVansda and drawing salary of Rs.9505\/- inclusive of D.A., Medical
\nAllowance and tribal allowance. The Tribunal thereafter adopted the
\nstandard formula followed by the Supreme Court in catena of decisions
\nand doubled the said amount in order to find out the average
\nprospective income and assessed the average prospective income at
\nRs.9,325\/- which  comes to Rs.1,11,900\/- per annum and thereafter
\nmultiplier of 15 was applied and accordingly assessed the dependency
\nbenefit at Rs.16,78,500\/- and added Rs.20,000\/- for loss to estate
\nand Rs.2,000\/- for funeral expenses and thus awarded the amount of
\ncompensation in the following break-up:\n<\/p>\n
\tRs.\n<\/p>\n
16,78,500\/- dependency benefits<\/p>\n
\tRs.\n<\/p>\n
   20,000\/- loss of estate;\n<\/p>\n
\tRs.\n<\/p>\n
    2,000\/- funeral expenses<\/p>\n
\t————–\n<\/p>\n
\tRs.17,00,500\/-\n<\/p>\n
Total compensation<\/p>\n
\t============<\/p>\n
4.2.\t\tThe
\nTribunal has awarded interest at the rate of 9% per annum from the
\ndate of the claim petition till realization and proportionate costs
\nof the claim petition, which has given rise to instant appeal at the
\ninstance of the appellant \u00fd  National Insurance Company Limited.\n<\/p>\n
5.\t\tMs.\n<\/p>\n
Megha Jani, learned advocate for the appellant, in support of the
\nappeal, has mainly raised the following submissions:\n<\/p>\n
(a)\tThat
\nthe Tribunal has erred in doubling the income of the deceased for the
\npurpose of calculating the prospective monthly income at Rs.13,987.50
\nwhich is on higher side and excessive;\n<\/p>\n
(b)\tAs
\nthe deceased was 41 years of age at the time of death, the Tribunal
\nhas erred in applying 15 multiplier. According to her, it should not
\nhave been more than 12.\n<\/p>\n
5.1.\t\tIn
\nsupport of the aforesaid submission, she has relied upon the
\nfollowing decisions of the Supreme Court:\n<\/p>\n
(i)\t Nagappa
\nv. Gurudayal Singh and others<\/a>, 2003 ACJ 12;\n<\/p>\n
(ii)\t T.N.\n<\/p>\n
State Transport Corporation Limited v. S. Rajapriya and others,
\n(2005) 6 SCC 236,<\/p>\n
(iii)\t Andhra
\nPradesh State Road Transport Corporation and another v. M. Ramadevi
\nand others,  2008 ACJ 930;\n<\/p>\n
(iv)\t\t Oriental
\nInsurance Company Limited v. Jashuben and others, 2008 ACJ 1097.\n<\/p>\n
5.2.\t\tShe,
\ntherefore, submitted that the impugned judgment and award may be
\nmodified  by awarding just and adequate compensation and  the appeal
\nmay be allowed to that extent. She therefore urged to allow the
\nappeal.\n<\/p>\n
6.\t\tPer
\ncontra, Mr. Amit  N. Patel, learned advocate for the claimants, has
\ncontended that the impugned judgment and award does not require any
\ninterference as the Tribunal has rightly considered the average
\nprospective income of the deceased and also applied the correct
\nmultiplier. Accordingly to him, the tribunal has rightly  awarded
\njust compensation looking to the erosion of rupee value and
\ninflationary trend.\n<\/p>\n
6.1.\t\tIn
\nsupport of the aforesaid submissions, he has relied upon the
\nfollowing decisions of the Supreme Court:\n<\/p>\n
(i)\t\t H.S.\n<\/p>\n
Ahammed Jussain and another v. Irfan Ahammed and another, 2002(2)
\nGLR 1825;\n<\/p>\n
(ii) \tAbati
\nBezbaruah v. Dy. Director General, Geological Survey of India and<\/a>
\nanother, AIR 2003 SC 1817.\n<\/p>\n
(iii)\t Chellammal
\nand others v. Kailasam and another, 2006 ACJ 854;\n<\/p>\n
6.2.\n<\/p>\n
He, therefore, submitted that no interference with the impugned
\njudgment and award is called for in this appeal as the Tribunal has
\nrightly assessed average prospective income of the deceased and also
\napplied the correct multiplier. He therefore urged to dismiss the
\nappeal.\n<\/p>\n
7.\t\tWe
\nhave considered the submissions advanced by Ms. Megha Jani, learned
\nadvocate for the appellant and Mr. Amit Patel, learned advocate for
\nthe claimants. We have also perused the impugned judgment and award
\nas well as the averments made in the claim petition and the memo of
\nappeal so also the paper book and also the judgments cited at the
\nbar.\n<\/p>\n
8.\t\tSo
\nfar as  the factum of involvement of the offending vehicle in the
\naccident as well as the negligence on the part of the driver of the
\noffending vehicle are concerned, no dispute is raised in the appeal
\nand, therefore, we do not deemed it expedient to reappreciate the
\nevidence in that regard and we  confirm the finding recorded by the
\nTribunal with regard to the attribution of negligence on the part of
\nthe driver of the offending vehicle.\n<\/p>\n
9.\t\tNow,
\nthe only question which calls for consideration of this Court is as
\nto whether the assessment of average prospective dependency benefit
\nas well as the  multiplier of 15 adopted by the Tribunal is is just
\nand reasonable or it is on higher side requiring interference of this
\nCourt by modifying the same.\n<\/p>\n
10.\t\tIn
\nthis connection, adverting to the oral evidence of respondent No.4,
\nNaranbhai Koyabhai Patel, Ex.29,  he has inter alia testified that
\nthe deceased was born on 9.7.1957 and the accident had taken place on
\n14.4.1999 and the age of the deceased at the time of accident was 41
\nyears and 9 months and he was serving as a Research Assistant with
\nTribal Project Office at Vansda and was drawing salary of Rs.9,505\/-
\nper month including D.A., Medical allowance and tribal allowance. In
\nsupport of the said evidence, he has also produced pay slip at Ex.38.
\nThe Tribunal on the basis of the said evidence, considering the
\nincome of the deceased at the rate of Rs.9,505\/- per month and also
\nconsidering various decisions of the Supreme Court and also
\nconsidering the future prospects, assessed the average prospective
\nincome by doubling basic pay and allowing D.A. and other allowances
\navailable at the time of death, found out the net dependency benefit
\navailable at Rs.13,987.50 and from that 1\/3rd amount was
\ndeducted for his personal upkeep and thereafter worked the average
\nprospective income at Rs.9,325\/- per month  and worked the annual
\nprospective income at Rs.1,11,900\/- On reappraisal of the evidence,
\naccording to us,  the calculation made by the Tribunal for
\ndetermination of prospective income is just and in accordance with
\nthe latest decisions of the Supreme Court and hence  no interference
\nis called for in this appeal.\n<\/p>\n
11.\t\tSo
\nfar as the application of multiplier is concerned, the Tribunal, on
\nthe basis of the age of the deceased which was 41 years and 9 months,
\nhas applied 15 purchaser factor, which, according to us, is on higher
\nside in view of the latest decisions of the Supreme Court. In the
\ncase of   Oriental Insurance Co. Ltd. v. Jashuben (supra) the
\ndeceased was aged 35 years and was an Assistant with ONGC and in that
\ncase the Supreme Court has adopted 13 multiplier. In the case of  A.P.
\nState Road transport Corporation v. M. Ramadevi (supra) where the
\ndeceased was 40 years old, the Supreme court has adopted 10
\nmultiplier. In the case of  T.N. State Transport Corporation Ltd.
\nv. S. Rajapriya (supra), the  deceased was of 38 years and the
\nSupreme Court has applied 12 multiplier.\n<\/p>\n
12.
\nApplying the principles laid down by the Supreme Court in the above
\nreferred to judgments, according to us, 13 multiplier would be just
\nand proper in order to find out the correct, just and adequate net
\ndependency benefits available to the claimants. We have worked out
\nthe dependency benefits at the rate of Rs.1,11,900 per annum and has
\napplied 13 multiplier which comes to Rs.14,54,700\/-  To that we shall
\n add an amount of  Rs.20,000\/- towards loss to the estate and
\nRs.2,000\/- towards funeral expenses as awarded by the Tribunal.
\nTherefore, the entitlement of the claimants comes in the following
\nbreak up:\n<\/p>\n
\tRs.14,54,700.00
\nloss of dependency benefits<\/p>\n
\tRs.\n<\/p>\n
  20,000.00 loss to the estate<\/p>\n
\tRs.\n<\/p>\n
   2,000.00 funeral expenses<\/p>\n
\t—————\n<\/p>\n
\tRs.14,76,700.00
\ntotal compensation.\n<\/p>\n
\t===============<\/p>\n
13.\t\tSeen
\nin the above context, the appeal deserves to be allowed in part by
\nreducing the amount of compensation and the award is also required to
\nbe modified to the extent indicated in this judgment.\n<\/p>\n
14.\t\tFor
\nthe foregoing reasons, the appeal succeeds in part and accordingly it
\nis partly allowed with no order as to costs of this appeal. The
\nimpugned judgment and award dated  8.10.2004 rendered by the MACT
\n(Aux) 3rd Fast Track Court, Navsari in MACP No. 261 of 1999 awarding
\ntotal compensation of Rs.17,00,500\/- is hereby modified by awarding
\ntotal compensation of Rs. 14,76,700\/- instead of Rs.17,00,500\/- as
\nawarded by the Tribunal, together with interest at the rate  of 9%
\nper annum from the date of the filing of the claim petition till
\nrealization and proportionate costs of the claim petition. Rest of
\nthe directions with regard to apportionment, investment and
\ndisbursement made by the Tribunal is hereby confirmed.\n<\/p>\n
14.1.\tModified
\naward to be drawn accordingly.\n<\/p>\n
14.2.\tThe
\nappeal is disposed of accordingly.\n<\/p>\n
15.\tMs.\n<\/p>\n
Megha Jani, learned advocate for the appellant, states that the
\nappellant \u00fd  insurance company has deposited Rs.25,03,035\/- with the
\nconcerned Tribunal and Rs.25,000\/- deposited with the Registry of
\nthis Court at the time of filing of the appeal was also transmitted
\nto the concerned Tribunal. The Tribunal concerned is directed to pass
\nappropriate orders with regard to apportionment, investment and
\ndisbursement of the amount of compensation which has been deposited
\nby the appellant \u00fd  insurance company in terms of the directions
\ncontained in the impugned judgment and award. If the amount deposited
\nby the appellant-insurance company is in excess after satisfying the
\ncompensation awarded to the claimants as per the modified award
\npassed by this Court, the excess amount shall be refunded to the
\nappellant-insurance company. If the amount deposited by the appellant
\nis less than the amount of compensation awarded to the claimants as
\nper the modified award passed by this Court, the appellant-insurance
\ncompany shall deposit the same within a period of six weeks from
\ntoday.\n<\/p>\n
16.\t\tSince
\nthe appeal is partly allowed by modifying the award, the civil
\napplication which is filed for stay of the impugned judgment and
\naward now does not assume any survival value and hence the same is
\ndisposed of with no order as to costs. Rule is discharged.\n<\/p>\n
(A.M.\n<\/p>\n
Kapadia, J.)<\/p>\n
(Z.K.\n<\/p>\n
Saiyed, J.)<\/p>\n
…\n<\/p>\n
(karan)<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court National vs Niruben on 18 July, 2008 Bench: A.M.Kapadia And Z.K.Saiyed, Z.K.Saiyed 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-217074","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNational vs Niruben on 18 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/national-vs-niruben-on-18-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National vs Niruben on 18 July, 2008 - 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