New India Assurance Co Ltd V. Daxaben wd/o Jayantbhai J Modi

X-OBJ/57/2010

AI Insights

The case involves an appeal by The New India Assurance Company Ltd. against a judgment and award by the Motor Accident Claims Tribunal, which had awarded compensation to the claimants for the death of Jayantibhai Jamnadas Modi, a Project Manager who died in a road accident. The accident occurred when a bus collided with the Tempo Trax Jeep in which Modi was traveling. The Tribunal had found the bus driver solely negligent and awarded Rs.17,02,940/- as compensation. The Insurance Company contested the negligence and the quantum of compensation, while the claimants sought enhancement of the compensation. The High Court dismissed the appeal, upheld the negligence finding, and modified the compensation amount.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 798448 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 24-01-2019
• Assessment Year: misc
• Other Referred Cases: National Insurance Company Ltd. Vs. Pranay Sethi
• Laws Referred To: Motor Vehicles Act, 1988
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: MAULIK SHELAT; VIBHUTI NANAVATI
• Assessee Lawyers: G C MAZMUDAR; H G MAZMUDAR
• Keywords: Appeal; Compensation; Cross objection; Insurance; Motor Accident; Negligence
• Section: 166; 173

Judgement Text

"C/FA/169/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 169 of 2006 With R/CROSS OBJECTION NO. 57 of 2010 In FIRST APPEAL NO. 169 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI ========================================================== 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 or any order made thereunder ? ========================================================== NEW INDIA ASSURANCE CO LTD Versus DAXABEN WD/O JAYANTBHAI J MODI ========================================================== Appearance: MR GC MAZMUDAR(1193) for the PETITIONER(s) No. 1 MR HG MAZMUDAR(1194) for the PETITIONER(s) No. 1 MR MAULIK J SHELAT(2500) for the RESPONDENT(s) No. 1,2,3 MR VIBHUTI NANAVATI(513) for the RESPONDENT(s) No. 6 SERVED BY PUBLICATION IN NEWS(75) for the RESPONDENT(s) No. 5 UNSERVED EXPIRED (R)(69) for the RESPONDENT(s) No. 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 24/01/2019 Page 1 of 9 C/FA/169/2006 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1. Feeling aggrieved by and dissatisfied with the judgment and award dated 30.03.2005 passed by learned Motor Accident Claims Tribunal (Aux.), Ahmedabad City (hereinafter referred to as \"the Tribunal\" for short), in Motor Accident Claim Petition No.1046 of 2001, the appellant -The New India Assurance Company Ltd. preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as \"the Act\" for short). 2. This Court vide order dated 23.03.2015 issued Notice for final disposal and the original claimants have filed their cross-objections for enhancement of compensation awarded. 3. Heard Mr.H.G.Mazmudar, learned counsel for the appellant – Insurance Company, Mr.Maulik J. Shelat, learned counsel for respondent Nos.1 to 3 – original claimants and Mr. Vibhuti Nanavati, learned counsel for respondent No.6 – National Insurance Company Ltd. Respondent No.5 is served by publication, still however, no one appears for respondent No.5. Respondent No.4 – driver of respondent No.5 has expired and therefore, Mr. Mazmudar, learned counsel for the appellant seeks permission to delete respondent No.4, which is permitted. Accordingly, respondent No.4 stands deleted from the array of this appeal. 4. In light of the aforesaid facts and at the request of learned counsel for the respective parties, the appeal is taken up for its final disposal. Learned counsel for the original claimants has also produced the copies of documentary evidence at Exhs:37 to 58 and has also placed reliance upon the letter issued by Backbone Projects Ltd. to the deceased at Exh:66, salary certificate at Exh:70 and letter of appointment Page 2 of 9 C/FA/169/2006 JUDGMENT at Exh:76. 5. The following noteworthy facts emerge from the record of the appeal:- 5.1 That the deceased Jayantibhai Jamnadas Modi was serving as Project Manager and in course of his employment, on 06.09.2001, while the deceased was travelling in Tempo Trax Jeep, bearing registration No.AP-07-H-8372 on Agra-Bombay National Highway road and was going towards Gwalior from Morena, at that time, one bus bearing registration No.MP-06-B- 0666 came in rash and negligent manner on the wrong side of the road and dashed with the Tempo Trax Jeep, because of which, the driver and other passengers including the deceased, travelling in the said Tempo Trax Jeep, received serious injuries. Thereafter, during the treatment, deceased Jayantibhai Modi succumbed to the injuries. Pursuant to the same, FIR being C.R.No.I-131/2001 came to be lodged with Nurabad Police Station, against the driver of the Bus. 5.2 The original claimants preferred a claim petition before the Tribunal under Section 166 of the Act and claimed Rs.35,00,000/-, wherein the Tribunal awarded a sum of Rs.17,02,940/- alongwith proportionate costs and interest at the rate 9 % from the date of filing of claim petition till its realization. It is the case of the original claimants that, the age of the deceased was 38 years at the time of accident and was serving as Project Manager and had drawing salary of Rs.13,979/- p.m. It is further the case of the claimants that, the deceased was Civil Engineer and even after retirement, had planning to start his own business and had bright chance to earn upto Rs.25,000/- p.m. 6. Being aggrieved by the same, the appellant – Insurance Company has filed present appeal. 7. Learned counsel for the appellant has raised the following contentions :- Page 3 of 9 C/FA/169/2006 JUDGMENT (i) That the Tribunal has committed an error in coming to the conclusion that present appellant as an Insurer of bus was the sole negligent in the said accident. (ii) That the appellant has relied upon the panchnama at Exh:39 and contended that the manner in which the accident has occurred is not properly appreciated by the Tribunal. He further relied upon the deposition of eye-witness Shri S.B.Sharma at Exh:60, who was travelling with the deceased and has contended that the Tribunal has wrongly come to the conclusion that the accident occurred only due to rash and negligent driving of the driver of the bus. (iii) It was further contended that the Tribunal has wrongly come to the conclusion that the driver of the bus alone was negligent and liable for the accident even though learned counsel for respondent No.6 - Insurance Company of Tempo Trax jeep made a statement that the drivers of both the vehicles are compositely negligent to the extent of 50 % each. Even though such statement was made by learned counsel for respondent No.6, the Tribunal on its own has come to the conclusion that the driver of the bus was solely negligent. (iv) It was however candidly submitted that as far as the quantum is concerned, the appellant relied upon the evidence on record and it being on higher side, the same should be suitably decreased. On the aforesaid grounds, learned counsel for the appellant submitted that present appeal deserves to be allowed, as prayed for. 8. Per contra, Mr. Vibhuti Nanavati, learned counsel for respondent No.6 – National Insurance Company Ltd.- Insurer of Tempo Trax Jeep, bearing registration No.MP-07-H-8372 has supported the impugned judgment and award and contended that, the statement made by learned counsel representing respondent No.6 would not bind respondent No.6 and the Tribunal has Page 4 of 9 C/FA/169/2006 JUDGMENT rightly appreciated the evidence on record. He further relied upon the evidence on record like panchnama of place of accident at Exh:39, deposition of Mr.S.B. Sharma at Exh:60 and FIR at Exh:37 and contended that the accident occurred only because of rash and negligent driving of the driver of the bus. On basis of the panchnama, he further contended that the road on which both the vehicles were being plied was a straight road and there is nothing on record to show that the driver of the Tempo Trax Jeep had committed any breach of traffic rules. He further contended that the manner in which the accident has taken place and the damage to the driver side of the Tempo Trax Jeep on the contrary shows that, the truck came from the other side of the Trax Jeep by crossing midway line of the road on which the accident occurred. He further submitted that the Tribunal has rightly appreciated the evidence on record and has correctly come to the conclusion that the driver of the bus was sole negligent for the accident. On the above mentioned submissions, learned counsel for respondent No.6 submits that, present appeal being meritless, deserves to be dismissed. 9. Mr. Maulik J. Shelat, learned counsel for respondent No.1 to 3 – original claimants has reiterated the arguments made by learned counsel for respondent No.6. As far as the aspect of negligence is concerned, he submitted that the wife of the deceased was examined at Exh:35 and Income Tax Returns for the financial year 1998-99 and 2000-01 were also produced on record to prove the income of the deceased. He further contended that the nature of work undertaken by the deceased entitled himself to special allowance of site allowance and therefore, the same should be considered as part of the income of the deceased, whereas the Tribunal has not considered the same. He also contended that the Tribunal has committed an obvious error in not giving the benefit of additional benefit by way of prospective income, which should also be suitably Page 5 of 9 C/FA/169/2006 JUDGMENT enhanced by this Court. He further relied upon the judgment of the Hon'ble Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680 and contended that the Tribunal has also erred in awarding only Rs.23,000/- under different conventional heads, which should be enhanced to Rs.70,000/- in total. On the aforesaid contentions, learned counsel for the original claimants submits that the Cross-Objections filed by the original claimants be allowed to the aforesaid extent and the impugned judgment and award be modified accordingly. 10. Learned counsel for the appellant also submitted that, while computing and determining the income of the deceased, site allowance should not be considered as permanent income. Thus, the site allowance which was given as per the evidence on record, should be deducted from monthly income while determining the income of the deceased. He also contended that though there is nothing on record, it is a matter of fact that at least 10 % of the income requires to be deducted towards the Income Tax liability and accordingly, the Tribunal has not considered the said aspect and therefore, the same should be deducted from the income as determined by the Tribunal. Accordingly, compensation under the head of loss of love and affection, deserves to be reduced. However, Mr. Mazmudar could not dispute that the claimants would be entitled for the benefit of prospective income as well as compensation under conventional heads as held by the Apex Court in the case of Pranay Sethi (supra). No other or further submissions have been made by learned counsel for the respective parties. 11. Upon considering the contentions raised by learned counsel for the respective parties and upon re-appreciation of the evidence on record, it clearly transpires that the accident has taken place at about 3:45 P.M. in broad daylight on highway. In order to examine the manner in which the Page 6 of 9 C/FA/169/2006 JUDGMENT accident has taken place, reference deserves to be made to the Crime Details Form at Exh:42. The chart which is forming part of the record and the description of the accident as occurred clearly reveals that the bus in question which is heavy vehicle in comparison to the trax jeep dashed with the trax jeep on the driver side i.e. right side of the jeep and in the middle of it and not front of it. The evidence therefore, spells out that there is no head-on-collision. Even considering the deposition of Mr. Sharma at Exh:60, who was co passenger with the deceased does not indicate that the jeep was being driven in rash and negligent manner and moving on the middle of the road. 12. In opinion of this Court, the Tribunal has rightly appreciated the evidence on record. Upon reappreciation of the evidence on record, therefore, the findings of the Tribunal to the effect that the driver of the bus was solely negligent deserves to be upheld. The Tribunal has rightly appreciated the oral testimony of the eye-witness Mr. Sharma at Exh:60, who has categorically stated that the Tempo Trax Jeep was being driven at moderate speed at the left side of the road. 13. Mr. Nanavati, has, therefore, rightly contended that the statement made by learned counsel for respondent No.6 before the Tribunal would not bind respondent No.6 – Insurance Company and on the contrary, in opinion of this Court, the Tribunal has rightly appreciated the evidence on record and has rightly held the driver of the bus solely negligent. On that count therefore, the contention raised Mr. Mazmudar, deserves to be negatived. 14. As far as the quantum is concerned, upon reappreciation of the evidence on record, the Tribunal has considered the evidence on record at Exhs:66 and 67 as well as Income Tax Returns at Exh:70, which also bear the tax deduction at source. Upon reappreciation of the evidence at Exhs:66 and 67, which shows that the deceased was appointed as Project Manager Page 7 of 9 C/FA/169/2006 JUDGMENT with total salary of Rs.15,000/- p.m. However, Rs.15,000/- also includes the site allowance to the tune of Rs.2,353/- p.m and Rs.1,268/- being 10 % deduction towards income tax. Hence, the claimants would be entitled to compensation under the head of loss of dependency is as under: Rs.11,379/- Net income per month (Rs.15,000/- + Rs.2553 site allow. + Rs.1268/- 10 % deduction towards income tax) + Rs. 5,690/- 50 % future prospects income --------- Rs.17,069/- - Rs. 5,690/- 1/3 towards personal expenses --------- Rs.11,379/- x 12 -------- Rs.1,36,548/- X 15 Multiplier ------------- Rs.20,48,220/- + Rs. 70,000/- Conventional heads ---------- Rs.21,18,220/- 15. As Rs.17,02,940/- is already awarded by the Tribunal, the original claimants would be entitled to get a sum of Rs.4,15,280/- as additional compensation with interest at the rate 9 % from the date of filing of claim petition till its realization from the appellant – Insurance Company. Accordingly, the appellant – Insurance Company shall deposit a sum of Rs.4,15,280/- along with interest at the rate 9 % from the date of filing of claim petition till its realization before the Tribunal within a period of three months from today. Thereafter, the Tribunal shall pass appropriate order for disbursement of the said amount. Page 8 of 9 C/FA/169/2006 JUDGMENT For the foregoing, the appeal is dismissed and the Cross- Objections filed by the original claimants are hereby allowed to the aforesaid extent. Impugned judgment and award stands modified to the aforesaid extent. Record and proceedings, if any, be transmitted back to the learned Tribunal forthwith. No order as to costs. (R.M.CHHAYA, J) (V. B. MAYANI, J) S U C H I T (P.S.) Page 9 of 9 "