Gujarat High Court
New India Assurance Co Ltd vs Narmadaben Kiranbhai Tandel on 8 April, 2026
NEUTRAL CITATION
C/FA/147/2015 JUDGMENT DATED: 08/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 147 of 2015
With
R/FIRST APPEAL NO. 148 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
=============================================
Approved for Reporting Yes No
NO
=============================================
NEW INDIA ASSURANCE CO LTD
Versus
NARMADABEN KIRANBHAI TANDEL & ORS.
=============================================
Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
ADITI S RAOL(8128) for the Defendant(s) No. 10
DECEASED LITIGANT for the Defendant(s) No. 8
FRESH RULE SERVED(4513) for the Defendant(s) No. 9
JAYDEEP H SINDHI(9585) for the Defendant(s) No. 1,2,3,5
RULE SERVED for the Defendant(s) No. 4,6,7
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 08/04/2026
ORAL JUDGMENT
1. The captioned appeals have been preferred at the
instance of the Insurance Company- original opponent No.3
under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as the “Act, 1988”), being aggrieved
and dissatisfied with the common judgment and award dated
15.10.2014 passed by the Motor Accident Claims Tribunal
(Auxiliary), Valsad in MACP Nos.40 and 41 of 2006
respectively. By the said judgment and award, the Tribunal
has partly allowed the claim petition being MACP No.40 of
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2006 preferred by the original claimants who are the heirs
and legal representatives of the deceased being expired in the
motor vehicle accident under Section 166 of the Act, 1988
holding them entitled to seek recovery of sum of
Rs.13,81,000/- is to be realized from the original opponents
jointly and severally with 7.5% interest and proportionate
cost, whereas in MACP No.41 of 2006, the Tribunal has held
the original claimants entitled to seek recovery of sum of
Rs.6,25,000/- from the original opponents Nos.1 to 3 jointly
and severally with interest at the rate of 7.5% and
proportionate cost, whereas has dismissed the claim petition
for the original opponents No.5 and 6. Hence, the captioned
appeals at the instance of original opponent No.3- Insurance
Company mainly disputing the quantum of compensation and
the issue of liability.
2. In order to appreciate the controversy involved in the
present appeals, it would be appropriate to revisit the facts of
the case. On 20th January 2006, the deceased Kiran Kumar
(MACP No.40 of 2006) was sitting as pillion rider on
motorcycle bearing registration No.GJ 15 KK 5472 which was
driven by deceased Bhikhubhai Tandel (MACP No.41 of 2006).
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While they were passing on a highway road leading from
Dandi towards Khaparwada, their bike had dashed the left
rear back side of the truck moving ahead bearing registration
No.GRY 4319 resulting into an accident. Because of the
impact, both the motorcyclists have succumbed to the fatal
injuries sustained in the motor vehicle accident. The cause of
action arose for the heirs and legal representatives of the
deceased. The claimants which include the wife of deceased
Kiranbhai and their children and aged parents have preferred
claim petition which was registered as MACP No.40 of 2006
before the District Court at Valsad seeking compensation of
Rs.15 lakhs under the various heads with interest and
proportionate cost. The said claim petition was preferred
against the driver of the truck (original opponent No.1), the
owner of the truck (original opponent No.2), the Insurance
Company of the truck (opponent No.3), the owner of the
motorcycle- original opponent no.5 and the Insurance
Company of the motorcycle being joined as opponent No.6.
The heirs and legal representatives of the owner of the
motorcycle have preferred claim petition which was
registered as MACP No.41 of 2006 before the concerned
Court praying for compensation of Rs.15 lakhs with
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proportionate cost and interest against the original opponents
as stated above except for the owner of the motorcycle who
had expired in the accident. Before the Claims Tribunal, the
summons were reported to have been duly served upon the
aforesaid opponents. Despite service of summons, the driver
and owner of the respective vehicles have chosen not to file
any written statement. The opponent No.3 -Insurance
Company has submitted its written statement at Exhibit 23,
whereas the Insurance Company of the motorcycle -opponent
No.6 has submitted its written statement at Exhibit 27. Before
the claim Tribunal, the opponent No.3- Insurance Company
has raised specific defence disputing the negligence as well as
the quantum of compensation as prayed for. The specific
defence was also raised with regard to the liability of
Insurance Company to pay any amount of compensation to the
claimants on the ground that the driver of the alleged truck
involved in the accident was not holding any valid and
effective driving license on the date of the accident.
Considering the pleadings of the respective parties, the
Tribunal has framed the issues at Exhibit 28 which reads as
under:
“1. Whether the claimant proves that the driver
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of the vehicles truck No.GRY 4319 and Pulsar
motorcycle No.GJ-15-KK 5472 involved in this
incident was rash and negligent in driving both
vehicle?
2. Whether the claimants proves that deceased
Kirankumar / Jayantibhai Tandel died because
of rash and negligent driving of the driver of the
vehicle involved in this accident?
3. Whether the claimants are entitled to any
compensation? If yes, to what extent?
4. Who is liable to pay aforesaid amount?
5. What order and award?”
2.1. Similar issues were framed in MACP No.41 of 2006. The
claimants of MACP No.40 of 2006 had produced documentary
evidence with a list at Exhibit 20, the details of which are
reproduced hereunder:
Particulars Exh. No. Certified copy of the FIR 51 Certified copy of the panchnama 52 Certified copy of the inquest panchnama 53 Certified copy of PM report of deceased 54 Bhikhubhai Ratanjibhai Tandel certified copy of the PM report of 55 Page 5 of 50 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Fri May 01 2026 Downloaded on : Sat May 02 00:32:34 IST 2026 NEUTRAL CITATION C/FA/147/2015 JUDGMENT DATED: 08/04/2026 undefined deceased Kiranbhai Jayantibhai Tandel Certified copy of the accident report 56 Certified copy of charge sheet counter 94
Original income certificate of deceased 50
Bhikhubhai Ratanjibhai Tandel
Original income certificate of deceased 48
Kiranbhai Jayantibhai Tandel
2.2. The Tribunal has passed the order below Exhibit 41
submitted by the claimants to hold and decide the captioned
claim petitions together. The wife of deceased Kiranbhai
Tandel viz. Anjaliben @Narmadaben Kiranbhai Tandel had
submitted her examination in chief affidavit at Exhibit 42. The
wife of deceased Bhikhubhai Tandel has submitted her
examination in chief affidavit at Exhibit 43 viz. Sangitaben
Bhikhubhai Tandel. Subsequently, the Insurance Company –
original opponent No.3 has submitted an application under
Section 170 of the Motor Vehicle Act, 1988 seeking
permission of the Tribunal to raise all the contentions/legal
defences available to the insured owner and driver of the
vehicle involved in absence of they having participated in the
proceedings, which came to be allowed by the Tribunal via
order dated 5th March 2012. The claimants have also
examined one Narottambhai Dayabhai Tandel who claims to
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be engaged in the business of fishery and has engaged
deceased Kiranbhai Jayantibhai as Khalasi. The claimants
have also examined witness namely Babarbhai Dayabhai
Tandel at Exhibit 49 to support the case of the claimants of
MACP No.41 of 2006. The claimants of MACP No.40 of 2006
has also led further evidence vide list at Exhibit 60. The
documents in the nature of the new fish jetty season pass
issued by the Custom Office, Mumbai has been produced on
record(mark 60/1). The certificate of registry of sailing vessel
issued by the Registrar of Sailing Vessels of Port of Bulsar has
been produced on record at mark 60/2. The copy of certificate
issued by the Secretary of the Gujarat Fisheries Central
Cooperative Association Limited Bulsar has also been
produced on record at mark 60/3. Similarly, certificate of
Registry of Sailing Vessel issued by Registrar of Sailing
Vessels of Port of Bulsar has been produced on record at mark
60/4, 60/5 and the new fish jetty season pass of witness
Narottambhai Dayabhai Patel has been produced at mark
60/6. The handwritten copy of notebook of payment of amount
maintained by the owner of the boat has also been produced
at mark 60/1. The handbook of handwritten details of payment
/ accounts maintained by the owner of the boat has also been
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produced at mark 60/7. The passbook of year 2010-2011 of
boat named Shyam Sundar owned by Babar Shri has been
produced on record at mark 60/8.
2.3. As against the aforesaid evidence submitted by the
claimants, the original opponent No.3 -Insurance Company,
has moved application praying for witness summons seeking
Investigating Officer of the FIR investigated in respect of the
accident in question. The witness namely Chhaganbhai
Babarbhai Ahir, a retired ASI of Dongri Police Station, has
appeared in response to the same and his evidence has been
recorded at Exhibit 67. Except for the aforesaid witness being
examined by the opponent No.3 -Insurance Company, no
further evidence has been brought on record by the opponent
No.3- Insurance Company. The opponent No.6 -Insurance
Company has produced the policy of the motorcycle involved
in the accident at marks 90/1. The opponent No.3 -Insurance
Company has produced on record the policy of the truck
involved in the accident, which has been admitted as evidence
at Exhibit 86. Apart from the aforesaid evidence, no other
evidence has been produced by the respective Insurance
Companies- original opponent Nos. 3 and 6.
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2.4. The Tribunal upon overall appreciation of evidence on
record in light of the arguments made as well as considering
the written arguments submitted by the respective parties,
held the drivers of both the vehicles involved in the accident
equally negligent towards the occurrence of accident. The
Tribunal has mainly taken into consideration the manner in
which the accident was pleaded in light of the panchnama
produced on record. On the issue of quantum of
compensation, the Tribunal in the case of pillion rider has
fixed the notional income of the claimants in absence of any
documentary proof of income being produced on record. The
Tribunal has further considered prospective rise in the income
of the deceased as 50% following the judgment of the Hon’ble
Supreme Court in the case of Rajbir (supra). The Tribunal
has applied appropriate multiplier in the facts of the case. The
Tribunal has also awarded amount of compensation under the
conventional heads. Thus, by impugned judgment and award,
the Tribunal has partly allowed the claim petitions preferred
by the respective claimants with appropriate interest and
cost. In the case of the deceased driver of the motorcycle, the
Tribunal has exonerated the original opponent No.6 –
Insurance Company from its liability to pay compensation.
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Hence the present appeal at the instance of the original
opponent No.3- Insurance Company.
3. Learned advocate Ms. Dimple Thakar appearing for the
appellant- Insurance Company has vehemently assailed the
impugned judgment and award on the issue of negligence,
quantum of compensation and liability as determined by the
Tribunal. At the outset, learned advocate has invited my
attention to the findings and reasons assigned by the Tribunal
on the aforesaid issues.
3.1. While referring to the FIR of the accident and the
panchnama produced on record, she has submitted that the
Tribunal has committed grave error in holding the driver of
the truck equally negligent towards the occurrence of
accident. It was further submitted that considering the
evidence of the Investigating Officer who has been examined
as witness, the Insurance Company has proved their defence
that the driver of the truck involved in the accident was not
holding valid and effective driving license at the time of
accident. However, the Tribunal has not appreciated the
evidence of the said witness in its right perspective and has
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erred in concluding that the Insurance Company has failed to
discharge its burden to prove their defence mainly on the
ground that in cross-examination, the said witness has
admitted to the fact that he had not personally verified the
aforesaid aspect from the RTO office. According to learned
advocate, considering the fact that the chargesheet was filed
for the offence punishable under Sections 3, 279 and 184 of
the Motor Vehicle Act read with the relevant provisions of the
Indian Penal Code, the Tribunal ought to have accepted the
fact that the Insurance Company has brought on record
sufficient material to indicate that the driver of the truck was
not holding driving licence.
3.2. The reliance was placed on the judgment of Hon’ble
Supreme Court in the case of National Insurance Company
Limited versus Swaran Singh reported in (2004) 3 SCC
297 and inviting my attention to the relevant observations
made in para 84 onwards where instance of driver having not
obtained any license, has been considered. Referring to the
summary of findings, learned advocate had submitted that the
breach on part of the owner of the vehicle has been proved by
examining the said witness and the chargesheet having been
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produced on record. In such circumstances, it was the owner
of the vehicle involved in the accident to respond to the
aforesaid aspect. She has therefore urged this Court to
exonerate the Insurance Company from its liability to pay any
compensation.
3.3. Alternatively, in case if the Court is not accepting her
submission on the issue of negligence and liability, learned
advocate has assailed the impugned judgment and award on
the ground of quantum of compensation being awarded on the
higher side. The attention of this Court was invited to the
findings and reasons assigned by the Tribunal on the aspect of
income of the deceased being fixed notionally. According to
learned advocate, in absence of any documentary proof of
income being produced on record by the claimants or any
witnesses examined in this regard, the Tribunal ought to have
followed the yardstick of minimum wages. According to her,
considering the minimum wages rates prevailing at the time
of accident, the income of the deceased in the respective
claim petitions were required to be confined to Rs.2400/-
instead of Rs.6000/- as considered by the Tribunal. The
grievance was also raised about the approach of the Tribunal
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in adopting the methodology for the purpose of computation
of loss of dependency. She has submitted that the correct way
as adopted by the Courts and Tribunal is to first ascertain the
income, followed by the prospective income and thereafter
multiplier to be adopted in a given case after appropriate
deduction. According to her, considering the income of
Rs.2400/- in the case of pillion rider where the deceased was
aged 32 years 6 months and considering the vocation of the
deceased, it can be treated as a case of fixed salary or self-
employed person. Applying the principles of the case of
National Insurance Company Limited versus Pranay
Sethi reported in (2017) 16 SCC 680, at the most addition of
40% rise could have been considered towards prospective
income. She has fairly submitted that considering the facts of
the case, the Tribunal has rightly applied 1/4th deduction
considering four dependents in the family. She has therefore
submitted that the loss towards prospective income of the
deceased can be fixed as Rs.2520/- (Rs.3360/- minus Rs.840/-).
Considering the multiplier of 16 the loss of dependency can be
fixed as Rs.4,83,840/- as against Rs.8,64,000/- awarded by the
Tribunal. As regards the amount of compensation awarded
under conventional heads are concerned, learned advocate
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has submitted that considering the legal principles in force as
on the date of the claim proceedings, the Tribunal has rightly
fixed the amount of compensation under the head of love and
affection, in case of the wife of the deceased as Rs.50,000/-
and loss of estate as Rs.25,000/- and funeral expenses at
Rs.10,000/-. She has therefore urged this Court to allow the
appeal and to exonerate the Insurance Company from its
liability to pay any amount of compensation or alternatively on
the issue of quantum of compensation, this Court may reduce
the amount of compensation by holding the claimants entitled
to seek recovery of sum of Rs.7,62,140/- instead of Rs.
13,81,000/- as awarded by the Tribunal and the remaining
amount of Rs.6,18,860/- may be directed to be refunded in
favor of the appellant Insurance Company.
First Appeal No. 147 of 2015:
4. Learned advocate Mr. Jaideep Sindhi appearing for the
respondent Nos. 1, 2, 3 and 5 has vehemently objected to the
aforesaid submissions made by learned advocate for the
appellant -Insurance Company. Learned advocate has mainly
relied upon the findings and reasons assigned by the Tribunal
on the issue of negligence and has submitted that the Tribunal
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has rightly appreciated the evidence of the claimants who in
her deposition has stated that the accident had occurred due
to rash and negligent driving of the driver of the truck. In the
cross-examination though the aforesaid witness has admitted
of not being eyewitness to the accident, the Tribunal has
further considered the documentary evidence, the panchnama
of place of accident produced on record at Exhibit 76.
Considering the aforesaid evidence on record no error can be
found with the conclusion drawn by the Tribunal holding the
driver of the truck negligent towards occurrence of accident.
Learned advocate had, though disputed the contributory
negligence attributed to the deceased motorcyclist on the
ground that no reason has been assigned by the Tribunal to
draw such conclusion. Though he has disputed the issue of
negligence however the fact remains that the deceased was a
pillion rider. However, he has fairly conceded to the fact that
no cross appeal or cross objections have been filed assailing
the aforesaid findings and reasons assigned by the Tribunal
holding the deceased motorcyclist equally negligent towards
occurrence of accident. On the issue of quantum of
compensation, learned advocate had submitted that in the
facts of the case and the evidence brought on record, the
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Tribunal after appreciating oral as well as documentary
evidence on record has awarded compensation of
Rs.13,81,000/- with interest at the rate of 7.5% per annum.
According to him, the appeal is not required to be entertained
on the issue of quantum of compensation. In fact, the
compensation determined is modest and on lower side. The
attention of this Court was invited to the fact that admittedly
the age of the deceased was 34 years and it was categorically
contended before the Tribunal that the deceased was earning
his livelihood as Khalasi and was getting salary of Rs.15,000/-
per month. Despite cogent material being brought on record
to justify the assertion of income, the Tribunal has failed to
appreciate the aforesaid evidence in its right perspective.
Learned advocate had referred to the evidence of the owner of
the boat viz.Narottambhai Dayabhai Tandel, whose evidence
has been recorded at Exhibit 47. It was submitted that merely
because the said witness has admitted in his cross-
examination that no corroborative material has been produced
on record, in reference to the salary of Rs. 15,000/- being paid
to the deceased, it was emphasized that there is no challenge
to the earning of Rs. 15,000/- by the deceased. It was further
submitted that the income certificate has been brought on
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record through the said witness which has been admitted as
evidence at Exhibit 48. Considering the nature of vocation and
the age of the deceased, there was no valid reason for the
Tribunal to disbelieve the case of the claimants about
deceased earning income of Rs.15,000/-.It was further
submitted that even in absence of formal cross objection or
cross appeal being filed by the claimants, this Court has been
conferred with jurisdiction to adjudicate just and proper
compensation and therefore can always invoke powers
conferred under Order 41 Rule 33 of the Code of Civil
Procedure to correct the omissions made by the learned
Tribunal while determining the amount of compensation. The
quantum of compensation was also sought to be redetermined
under the future loss of income. The reliance was placed on
the decision of Hon’ble Supreme Court in the case of
National Insurance Company Limited versus Pranay
Sethi reported in (2017) 16 SCC 680. Considering the age
of the deceased as 34 years and the number of claimants,
learned advocate had urged this Court to correct the
multiplier considering the decision of Hon’ble Supreme Court
in the case of Sarla Verma versus Delhi Transport
Corporation (2009) 6 SCC 121, the appropriate multiplier
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for the age group of 31 to 35 years to be applied was 16. It
was further emphasized that the multiplier to be applied in
the facts of the case is mandatory and not discretionary. As
regards the amount of compensation awarded under
conventional heads are concerned, learned advocate had
urged this Court to take into consideration the settled
principles laid down by the Hon’ble Supreme Court in the
case of Magma General Insurance Co. Ltd vs. Nanu Ram
Alias Chuhur Ram & Ors reported in (2018)18 SCC 130 as
well as in the case of United India Insurance Company
Limited vs. Satinder Kaur @ Satwinder Kaur reported in
AIR 2020 SC 3076. Referring to the relevant observations of
the Hon’ble Supreme Court in the case of Pranay Sethi
(supra), learned advocate has urged this Court to adequately
enhance the amount of compensation under conventional
heads. As regards the powers conferred upon the High
Court under provisions of Order 41 Rule 33 of the Code of
Civil Procedure to grant appropriate relief and enhancement
of amount of compensation, even in absence of cross
objections being filed in order to do complete justice between
the parties, the learned advocate had relied upon the decision
of Hon’ble Supreme Court in the case of Surekha wife of
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Rajendra Nakhate versus Santosh son of Namdev Jadhav
reported in (2021) 16 SCC 467. Learned advocate had
submitted that considering the beneficial legislation the Court
has time and again emphasized that the approach of the
Claims Tribunal or the Courts should be liberal and justice
oriented, mainly focused to provide just and fair compensation
to the victims of accident. It was emphasized that the amount
of compensation towards loss of consortium may be distinctly
awarded under the head of spousal consortium, parental
consortium and filial consortium. Learned advocate has
therefore urged this Court to enhance the amount of
compensation and to dismiss the appeal of the appellant
Insurance Company.
First Appeal No.148 of 2015.
5. Learned advocate Mr. P.V. Patadiya appearing for the
respondent No.1 and other original claimants on record, has
objected to the submissions made by learned advocate on
record for the appellant- Insurance Company. On the issue of
negligence, learned advocate has supported and adopted the
submissions made by learned advocate Mr. Sindhi appearing
for the claimants in the cognate appeal. On the quantum of
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compensation, learned advocate has at the outset fairly
submitted that though no cross appeal or cross objection have
been filed by the claimants, however considering the wide
jurisdiction conferred upon the Appellate Court in view of
provisions of Order 41 Rule 33 of the Code of Civil Procedure,
considering the beneficial legislation which aims to provide
just and fair compensation to the victims of accident, this
Court in order to do complete justice, may re-appreciate and
re-determine the amount of compensation. Inviting my
attention to the findings and reasons assigned by the Tribunal
in the case of deceased Bhikubhai Ratanjibhai Tandel, learned
advocate had submitted that he was aged 37 years at the time
of accident and was in fact engaged as Captain by BD Tandel
Fisheries and was thereby earning a monthly salary of Rs.
15,000/-. In support of their case, the claimants have
examined witness who is the owner of the boat viz. Babarbhai
Dayabhai Tandel, whose evidence has been recorded at
exhibit 49. Referring to the evidence of the said witness,
learned advocate had submitted that the claimants have
established their case about the earning of deceased through
the said witness. However, the Tribunal has not appreciated
the evidence of the said witness in its right perspective merely
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on the ground that in his cross-examination he has fairly
conceded to the fact that no document worth about
registration of the boat or any accounts details has been
produced on record. The reliance was also placed on the
evidence of the other owner of the boat being recorded at
Exhibit 48 who in his cross examination has asserted that
generally a Khalasi would earn income between Rs.5000/- to
Rs. 25000/- per month. However, the Tribunal has taken note
of the admission of the said witness who in his cross
examination has fairly conceded to the fact that in rainy
season the boating would be closed for a period of three
months. The Tribunal has further taken note of the deposition
of the said witness about no evidence corroborating the fact
that the deceased was engaged as Captain on the boat has
been produced. In absence of any evidence being brought on
record establishing the fact that deceased was engaged as
Captain on the boat, the Tribunal has fixed notional income of
the deceased as Rs.6000/-. Learned advocate had further
invited my attention to the fact that the Tribunal has noted the
claimants includes the wife of the deceased, their children and
the aged mother of the deceased and has therefore,
considering three dependents in the family of the deceased,
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followed the principles laid down in the case of Sarla Verma
(supra). The tribunal has applied a deduction of 1/3rd
towards personal and living expenses of the deceased, which
according to him has rightly been applied in the facts of the
case. The tribunal has thereafter adopted a multiplier of 15,
considering the age of the deceased as 37 years, and has
thereby determined the dependency loss as Rs.7,20,000/-.
However, following the judgment of the Hon’ble Supreme
Court in the case of Sarla Verma (supra), more particularly
para 11, the Tribunal has considered a 50% addition towards
future rise of income and has thereby computed the
dependency loss as Rs.10,80,000/- (Rs.7,20,000 +
Rs.3,60,000). Since, the deceased was a motorcyclist who is
found to be negligent to the extent of 50% towards the
occurrence of the accident has held the original claimants
entitled to a dependency loss of the sum of Rs.5,40,000/-.
Referring to the aforesaid approach of the Tribunal, the
learned advocate had submitted that the dependency loss is
required to be enhanced by considering the income of the
deceased as Rs.15,000/- instead of Rs.6,000/-. The future loss
of income is required to be enhanced to Rs.27 lakhs instead of
Rs.10,80,000/- as determined, and considering 50% deduction
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towards contributory negligence, the claimants may be held
entitled to loss of dependency of Rs.13,50,000/- instead of Rs.
5,40,000/-. As submitted by the learned advocate for the
original claimants in the cognate appeal, the learned advocate
had also urged to reconsider the amount of compensation
awarded under conventional heads. According to him,
considering well-settled principles laid down by the Honorable
Supreme Court in the case of Pranay Sethi (supra), the
amount of compensation awarded under the head of loss of
consortium is required to be revisited, considering the fact
that each of the claimants shall be entitled to a distinct
amount of compensation towards spousal consortium, filial
consortium, and parental consortium of Rs.48,400/- each. As
regards the amount awarded under the head of loss of estate
as determined by the Tribunal of Rs. 25,000/-, it may be
revisited and be fixed as Rs.18,150/-. Similarly, the amount of
compensation under the head of funeral expenses may also be
enhanced from Rs.10,000/- to Rs. 18,150/-. The learned
advocate has therefore urged this Court to discuss the appeal
and to invoke the powers conferred under Order 41 Rule 33 of
the Code of Civil Procedure in order to determine a just and
fair amount of compensation in the facts of the case and the
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evidence brought on record by modifying the impugned
judgment and award passed by the Tribunal.
6. Learned advocate Ms. Ninjal Varghese has appeared on
behalf of Ms. Aditi Raval, appearing on behalf of respondent
No.10 in First Appeal Nos.147 of 2015 and respondent No.8
in First Appeal No.148 of 2015. The learned advocate at the
outset has fairly submitted that the respondent Insurance
Company of the motorcycle involved in the accident has not
preferred any appeal or cross-objections, however, has urged
this Court to reappreciate the issue of negligence. As
according to her, on bare appreciation of findings and reasons
assigned by the Tribunal, no reason has been assigned by the
Tribunal while holding the deceased motorcyclist to have
contributed to the occurrence of the accident. Referring to the
Panchnama at Exh. 76, she has submitted that it is noted in
the Panchnama that the side lights of the driver side of the
truck were not in working condition as they were found
broken. It has been specifically noted by the investigating
officer who had drawn the Panchnama that it was not freshly
broken. The attention of this Court was invited to the contents
of the FIR to point out that the accident had taken place at
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around 19:45 PM and therefore, in the absence of adequate
light, it can be inferred that the motorcyclist had no occasion
to control his vehicle in the absence of the side light
indication given by the driver of the truck, which had
suddenly stopped in the middle of the highway road. She has
therefore submitted that considering the fact that the root
cause of the accident was due to sudden brakes being applied
by the driver of the truck, the Tribunal ought to have held the
driver of the truck solely negligent towards the occurrence of
the accident. She has alternatively submitted that considering
the issue of safe distance, at the most, the deceased
motorcyclist could have been considered contributory
negligent to the extent of 20% instead of 50% as held by the
Tribunal. She has further submitted that since the deceased
motorcyclist was also found contributory negligent towards
the occurrence of the accident, the Tribunal has rightly
exonerated her insurance company from liability to pay
compensation in MACP No.41 of 2006. She had also submitted
that in the absence of any appeal or cross-objections being
filed by the claimants of MACP No.41 of 2006, the aforesaid
findings of the Tribunal exonerating the original opponent
no.6-Insurance Company attained finality. She has therefore
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urged this Court to pass appropriate orders..
Findings:
7. I have heard the learned advocates appearing for the
respective parties and have carefully considered their
arguments in light of the findings and reasons assigned by the
Tribunal. I have also re-appreciated the entire evidence on
record. Considering the submissions made by the learned
advocates appearing for the respective parties, the short
question which arises for consideration of this Court in the
present appeal is as to whether the Tribunal committed any
error in passing the impugned judgment and award in the
facts of the case and evidence on record while deciding the
claim petition preferred under Section 166 of the Motor
Vehicles Act, 1988?
Negligence:
8. At the outset, it would be appropriate to revisit the case
of the claimants as regards the occurrence of the accident
pleaded in the original claim petition. It was pleaded that the
accident had occurred on the 20 th January, 2006, when the
deceased Kirankumar (MACP No.40 of 2006), who was seated
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as a pillion rider on the motorcycle bearing registration
number GJ-15-KK-5472, had accompanied deceased
Bhikhubhai Tandel (MACP No.41 of 2006) who was driving
the said motorcycle. They had started from Dandi and were on
their way to reach Khaparvada to distribute marriage
invitation cards. It was pleaded that the motorcyclist
Bhikhubhai Ratanjibhai Tandel was driving his motorcycle at a
moderate speed and following the traffic regulations and
when they had reached near the place of the accident, the
original opponent No.1, who was driving the truck bearing
registration No.GRY 4319 in rash and negligent manner,
without applying a signal brake, had suddenly applied brakes
in the middle of the highway road. As a result, the motorcycle
had dashed with the rear back portion of the truck, resulting
in fatal injuries to the motorcyclist as well as to the pillion
rider. Having appreciated the aforesaid case put forward by
the original claimants in the claim petition as against the
evidence of the respective claimants who are admittedly not
eyewitnesses to the accident, however, they have reiterated
the case pleaded in the original claim petition. In support of
their aforesaid contention, the claimants have produced on
record the FIR registered against the driver of the truck with
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the Dungri Police Station. The certified copy of the FIR has
been produced on record at Exhibit 76. On bare appreciation
of the contents of the said Panchnama, it is evident that the
First Information Report was registered on the 21 st January,
2006, wherein the occurrence of the accident is reported to be
on the 20th January, 2006, at around 19:45 hours. The FIR was
registered against the driver of the truck for the offenses
alleged under Sections 279, 337, 338, 304-A of the Indian
Penal Code and under Sections 177 and 184 of the Motor
Vehicles Act. The said complaint has given by Sunilbhai
Kantibhai Patel, who is the owner of the truck involved in the
accident. It was reported that the driver of the truck, in order
to attend nature’s call, had stopped his truck. At that time, the
motorcyclist along with an unknown pillion rider had dashed
on the back rear portion of the stagnant truck. On further
verification, the names of the deceased motorcyclist and the
pillion rider were identified, who had unfortunately
succumbed to the fatal injuries sustained in the accident and
one of them being hospitalized. The aforesaid FIR was
investigated by the Dungri Police Station and during the
course of the investigation, the Investigating Officer had
visited the place of the accident and had drawn a Panchnama
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of the place of the accident. The certified copy of which has
been produced on record at Exhibit 76. On appreciation of the
contents of the said Panchnama, it is evident that the accident
had taken place in the middle of the coastal highway road.
The investigating officer has noted the position of the truck
bearing registration No.GRY 4319 on the place of the
accident. The damages sustained by the truck suggest that
there were abrasion marks noticed on the driver’s side rear
portion of the truck. The Pulsar motorcycle bearing
registration No.GJ-15-KK 5472 was also found on the place of
the accident in a damaged condition. It has been noted by the
investigating officer that the front portion of the said
motorcycle has been substantially damaged. Apart from the
aforesaid damages sustained by the respective vehicles, the
investigating officer has noted that the brake light on the
driver’s side of the Truck were not in working condition as
they were broken; however, the same was not broken
recently. Considering the aforesaid evidence on record, if one
looks at the evidence of the investigating officer namely
Chhaganbhai Babarbhai Ahir, retired ASI, who has been
examined as a witness pursuant to the witness summons
sought for by the appellant Insurance Company, he has
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deposed before the Tribunal that the driver of the truck was
not holding any license and therefore has filed a charge sheet
against the driver of the truck. It was further deposed that the
appropriate offence has also been incorporated in this regard
in the charge sheet. However, in his cross-examination, he has
fairly admitted to the fact that he has not verified the
aforesaid aspect of non-holding of license from the RTO office.
It is required to be noted that the certified copy of the extract
of the charge sheet counter has also been brought on record
at Exh. 94. On bare appreciation of the said charge-sheet
counter, it is evident that at the end of the investigation, the
charge sheet has been filed against the driver of the truck-
original opponent No.1 for the offence punishable under
Section 279, 337, 338, 304A of the Indian Penal Code and
Section 3, 177, and 184 of the Motor Vehicle Act. It has been
reported that because of the rash and negligent driving of the
driver of the truck, the motorcyclist and the pillion rider have
met with the accident and had sustained fatal injuries.
Considering the aforesaid evidence on record, if one looks at
the findings and reasons assigned by the Tribunal, the
Tribunal has mainly taken into consideration the panchnama
produced on record at Exhibit 76 and has noted that the rear
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back side of the truck and the front portion of the motorcycle
are found damaged. After considering the manner in which
the accident has been reported, the nature of the vehicle
involved and the damages sustained by the respective
vehicles, the Tribunal has held the driver of both the vehicles
equally negligent towards the occurrence of the accident. As
rightly submitted by learned advocates for the respondents-
original claimants, no reason worth has been assigned by the
Tribunal for fixing the 50% negligence of the deceased
motorcyclist towards the occurrence of the accident.
9. Considering the overall evidence on record, the
claimants have substantiated their case by leading cogent
material in the nature of the FIR, the panchnama, the
evidence of the investigating officer and the charge sheet
being filed against the driver of the truck, as against, the
respondent Insurance Company has failed to examine the
driver of the truck as a witness who was otherwise an
eyewitness to the accident. As regards the involvement of the
vehicle and the injuries sustained by the deceased persons in
the motor accident is concerned, the claimants have been able
to establish their case against the respondents. However, as
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regards apportionment of negligence is concerned, if one
appreciates the contents of the FIR wherein the owner of the
truck has reported that the driver had stopped the truck in
the middle of the road to attend a nature call, if one looks at
the copy of the panchnama, it is found that the truck was
stopped in the middle of the road. Admittedly, the side light of
the truck on the driver side were not found to be in working
condition. Additionally, it is the case of the appellant –
Insurance Company that the driver of the truck was not
holding any license at the time of the accident. The heavy
reliance is placed on the fact that the statement of the driver
and owner of the truck were recorded by the investigating
officer during the course of investigation of the FIR who have
admitted to the aforesaid fact. Considering the aforesaid
circumstances being brought on record, in my view the
claimants have established their case about the negligence of
the driver of the truck.
9.1 This brings me to the issue of contributory negligence as
raised by original opponent No.3-Insurance Company. It is an
admitted fact that the accident has taken place in the middle
of the highway road. Though, the evidence on record suggests
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that the driver of the truck had suddenly stopped the truck in
the middle of the road and in the absence of the side light
indicators, the general presumption would be that the driver
of the vehicle following the vehicle would have no occasion to
control his vehicle in a short distance. It is required to be
noted that no cross-objections or any appeal has been filed by
the original claimants disputing the issue of contributory
negligence or the extent of the negligence attributed to the
deceased motorcyclist. At the same time, considering the fact
that the motorcyclist was driving on a highway road, it was
expected from the driver following the vehicle going ahead to
maintain a safe distance so as to avoid the occurrence of an
accident in case of sudden brakes being applied by the vehicle
going ahead. Considering the damages sustained by the
respective vehicles, it can be inferred that because of the
excessive speed of the motorcycle on a highway road, and
since the safe distance was not maintained by the deceased
motorcyclist, he was therefore unable to control his vehicle.
The aforesaid fact can also be inferred from the panchnama
produced on record wherein no brake marks have been
noticed on the road. Considering overall circumstances
brought on record, this Court is not inclined to interfere with
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the findings and reasons assigned by the Tribunal fixing the
negligence of the respective drivers involved in the accident
to the extent of 50%.
Quantum of compensation: (First Appeal No.147 of
2015):
10. This brings me to the issue of quantum of compensation
as determined by the Tribunal. At the outset, it is required to
be noted that though the claimants have pressed for
enhancement of amount of compensation, no appeal or cross-
objections have been filed by either of the claimants of the
respective First appeals. The learned advocates have pressed
for invoking powers conferred on the Appellate Court in view
of provisions of Order 41 Rule 33 of the Code of Civil
Procedure. At this stage, it would be appropriate to revisit the
judgment of the Hon’ble Supreme Court in the case of
Surekha wife of Rajendra Nakhate (supra). The Hon’ble
Supreme Court has categorically held that the Court should
not take a hyper-technical approach and ensure that just
compensation is awarded to the affected person or claimants
even in absence of cross-objection being filed by resorting to
the power conferred under Order 41 Rule 33 of the Code of
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Civil Procedure in order to grant appropriate relief. The Court
has mainly taken into consideration the Motor Vehicles Act
being beneficial legislation which intend to provide just and
proper compensation and has therefore, expected the Courts
to be liberal and justice oriented. Bearing in mind the
aforesaid principles in the facts of the case, at the outset, as
regards the issue of income being determined on the lower
side is concerned, I have carefully considered the evidence of
the respective claimants as well as the evidence of the
witnesses who are the owners of the boat in which the
deceased were engaged as Khalasi and Captain. Considering
the evidence of the aforesaid witnesses, the Tribunal has
believed the case of the claimants that the deceased was
engaged as Khalasi on the boat. However, the Tribunal has
taken note of the fact that the aforesaid witnesses have fairly
conceded to the fact that no documentary evidence has been
brought on record establishing the claim of income of
deceased as Rs.15,000/-. As submitted by learned advocates
for the claimant in First Appeal No. 147 of 2015, the income
certificate of the deceased has been produced on record at
Exhibit 48, it has been proved through the evidence of the
witness whose evidence has been recorded at Exhibit 47.
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Even on appreciation of the evidence of the aforesaid
witnesses and the income certificate produced on record, this
Court cannot ignore the cross-examination of the said
witnesses who have fairly conceded to the fact that no
corroborative material in the nature of the account details,
the passes issued by the competent authority to sail, the
registration of the boat, etc., has been produced on record. On
overall appreciation of the nature of evidence, this Court is of
the view that the Tribunal ought to have taken into
consideration the minimum wages prevailing at the time of
accident in absence of any documentary proof of income being
produced on record. It is also required to be noted that the
nature of job was not permanent as can be borne out from the
cross-examination of the witness that the sailing was
prohibited during monsoon season for almost a period of four
months. In such circumstances, considering the minimum
wages notified by the State of Gujarat during the period of
accident which has occurred on 20th January 2006, it would be
appropriate to fix the monthly income of the deceased as
Rs.2,400/- per month.
11. This brings me to the issue of methodology of calculation
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being adopted by the Tribunal while determining the
dependency loss. As is evident from the findings and reasons
assigned by the Tribunal as rightly submitted by the learned
advocate for the appellant -Insurance Company, the Tribunal
committed a grave error in proceeding with the determination
of loss of dependency by taking into consideration the
addition of 50% future rise after the deduction towards the
personal and living expenses of the deceased. Considering the
judgments of the Hon’ble Supreme Court in the case of Sarla
Verma (Supra) as well as in the case of Pranay Sethi
(Supra), the right approach of the Tribunal was to first
ascertain the age of the deceased followed by the income of
the deceased and the number of dependents. After
considering the aforesaid foundational facts the issue which
was required to be determined by the Tribunal was to arrive
at the loss of dependency which would mainly include the
steps of addition / deductions to be made for arriving at the
income of the deceased following the deduction to be made
towards personal living expenses of the deceased and
thereafter to apply the multiplier with reference to the age of
the deceased. Considering the judgment of Hon’ble Supreme
Court in the case of Pranay Sethi (Supra), while arriving at
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the stage of determination of income of deceased, the
prospective income of the deceased was appropriately
required to be considered before proceeding with the
dependency loss.
12. Following the aforesaid principles in the facts of the case
having considered the income of the deceased as Rs.2,400/-
per month, in First Appeal No 147 of 2015 (MACP No 40 of
2006), the addition of 40% rise is required to be considered
for the determination of prospective income of the deceased
who was reported to be aged 32 years and being earning fixed
salary, addition of 40% rise is required to be considered
towards prospective income. The prospective income of the
deceased in case of First Appeal No. 147 of 2015 is
determined as Rs3360/-. It is an undisputed fact that the
deceased was survived by wife of widow, two minor children
and aged parents. Thus, at the time of accident there were
five dependents in the family. Considering the principles laid
down by the Hon’ble Supreme Court in the case of Sarla
Verma (Supra), as observed in para 30, in case where the
deceased was married, the deduction towards personal and
living expenses of the deceased should be considered as one-
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fourth where the number of dependent family members are
between 4 to 6, it would be appropriate to consider 1/4th
deduction towards personal and living expenses of the
deceased. Thus, the dependency loss suffered by the claimant
is computed as Rs.3360/- X 1/4 which would come to Rs 840/-
i.e. (Rs.3360/- Minus Rs. 840/-) = Rs.2,520/-. Considering the
age of the deceased as 32 years, applying the principles laid
down by the Hon’ble Supreme Court in the case of Sarla
Verma (Supra) in the case of age group of the deceased
between 31 to 35 years, it would be appropriate to adopt
multiplier of 16. Thus, considering the aforesaid components
the dependency loss is redetermined as Rs. 4,83,840/-
(Rs.2520/- X 12 X 16 (Multiplier) instead of Rs.8,64,000/- as
awarded by the Tribunal.
13. As regards the amount of compensation under
conventional heads are concerned, though the original
claimants have failed to prefer an appeal or cross objections
praying for enhancement of amount of compensation however
considering the subsequent decision of Hon’ble Supreme
Court in the case of Pranay Sethi (supra) and as reiterated
in the case of Magma General Insurance Company
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Limited (Supra), this Court is inclined to reconsider the
amount of compensation under conventional heads even in
absence of any appeal or cross objections being filed. Taking
into consideration the beneficial legislation and the principle
of just and fair amount of compensation to be awarded, the
amount of compensation under loss of consortium is
redetermined as Rs.48,400/- to be awarded to each of the
claimants under the distinct heads of spousal consortium, filial
consortium and parental consortium. The total amount of
compensation under the head of loss of consortium is modified
from Rs. 50,000/- as awarded by the Tribunal under the
distinct head of love and affection to claimant No.1 only by
enhancing to Rs.48,400/- X 5 = Rs.2,42,000/-. Similarly, the
amount of compensation under the head of loss of estate is
redetermined as Rs.18,150/- instead of Rs.25,000/- as
awarded by the Tribunal. The amount of compensation under
head of funeral expenses is enhanced from Rs.10,000/- to
Rs.18,150/-.
14. The total amount of compensation is therefore modified
from Rs. 13,81,000/- to Rs 7,62,140/- with interest at the rate
of 7.5% from the date of filing of claim petition till its actual
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realization with proportionate cost. To be realized from the
original opponents.
Quantum of compensation (First Appeal No.148 of
2015):
15. Having held so, as regards the quantum of compensation
in the case of First Appeal No. 148 of 2015 is concerned, for
the reasons recorded earlier and the evidence appreciated of
the claimant as well as of the owner of the boat who has been
examined as witness, in absence of any other corroborative
material with regard to proof of income being produced on
record, no error can be found with the approach of the
Tribunal in not accepting the case of the claimant of the
income to be assessed as Rs.15,000/-. However, at the same
time the Tribunal though having satisfied on the above aspect
has exercised its discretion to fix the notional income of the
deceased as Rs.6,000/-. Having appreciated the findings and
reasons assigned by the Tribunal on the aforesaid issue, the
Tribunal committed grave error in not following the principles
laid down by the Hon’ble Supreme Court in the case of
Govind Yadav vs. New India Assurance Company Limited
reported in 2012 ACJ 28 (SC) in absence of any proof of
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income being produced on record and considering the nature
of avocation of the deceased, more particularly, when it is
found that the during season of monsoon they were not
permitted to sail across the sea, at the most the Tribunal
ought to have followed the yardstick of minimum wages. The
rates of minimum wages notified by the State of Gujarat at the
as prevailing at the time of accident suggest Rs.2,400/- per
month in case of skilled workmen. Following the aforesaid
rates in the facts of the case, where the Tribunal has accepted
the case of the claimant to the extent of deceased being
earning his livelihood as Khalasi, it would be appropriate to
fix the income of the deceased as Rs.2,400/- per month instead
of Rs.6,000/- as determined by the Tribunal. Having held so,
for the reasons recorded earlier the methodology adopted by
the Tribunal is also not correct in view of the principles laid
down by the Hon’ble Supreme Court in the case of Sarla
Verma (Supra) and Pranay Sethi (Supra). Following the
aforesaid principles for the purpose of determination of
dependency loss, considering the age of the deceased as 37
years at the time of accident and the nature of avocation, the
case of the claimant can be considered under the category of
persons of fixed salary. It would be appropriate to consider
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addition of 40% rise towards determination of prospective
income of the deceased. Thus, the prospective income of the
deceased is determined as Rs.2,400/- X 40% =Rs.960 i.e. (Rs.
2,400/- plus Rs.960/-) =Rs 3,360/-.
16. The record suggests that the deceased was survived by
the widow, the minor daughter and aged parents, however it
further transpires that the father of the deceased had expired
and he he has been deleted from the array of parties.
Considering the fact that the deceased was considering the
fact that there are 3 dependents in the family, it would be
appropriate to consider 1/3rd deduction towards personal and
living expenses of the deceased which comes to Rs. 2,240/-
(Rs.3,360/- minus Rs.1120/- (1/3). In the facts of the case, it
would be appropriate to adopt multiplier of 15. Considering
the aforesaid components, the dependency loss in First Appeal
No. 148 of 2015 (MACP No 41 of 2006) is determined as Rs.
4,03,200/- (Rs.2240/- X 12 X 15).
17. Having held so, the amount of compensation under
conventional heads is also required to be redetermined in
view of the subsequent decisions of the Hon’ble Supreme
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Court in the case of Pranay Sethi (Supra) as well as in the
case of Magma General Insurance Company Limited
(Supra). Applying the aforesaid principles in the facts of the
case, the amount of compensation under the head of loss of
consortium is revisited by awarding Rs.48,400/- to each of the
claimants i.e. Rs 48,400/- X 3 = Rs.1,45,200/-. Thus, the
amount of compensation under the head of loss of consortium
is enhanced from Rs.50,000/- to Rs.1,45,200/-. Similarly, the
amount of compensation under the head of loss of estate is
also required to be revisited and is reduced from Rs.25,000/-
to Rs.18,150/-. The amount of compensation under the head of
funeral expenses is enhanced from Rs.10,000/- to Rs.18,150/-.
18. Considering the amount of compensation as determined
under the various heads, the total amount of compensation is
determined as Rs.5,84,700/- instead of Rs.6,25,000/- awarded
by the Tribunal. Considering the fact that the deceased had
attributed to the occurrence of accident to the extent of 50%
the total dependency is fixed as Rs.2,92,350/- (Rs.5,84,700/- -X
50%) with interest at the rate of 7.5% from the date of filing of
claim petition till its actual realization with proportionate cost.
To be realized from the original opponents no. 1 to 3 jointly
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and severally. At the same time, the directions issued by the
Tribunal exonerating the original opponent Nos.5 and 6 from
their liability to pay compensation is hereby confirmed.
19. For the reasons recorded above, the total amount of
compensation is redetermined as under:
First Appeal No.147 of 2015 (MACP No.40 of 2006)
Particulars Awarded by Awarded by this
Tribunal (Rs.) Court
Loss of dependency 12,96,000/- 4,83,840/-
Loss of consortium 50,000/- 2,42,000/-
Loss of estate 25,000/- 18,150/-
Funeral expenses 10,000/- 18,150/-
Total Compensation 13,81,000/- 7,62,140/-
Refund amount of 6,18,860/-
compensation
First Appeal No.148 of 2015 (MACP No.41 of 2006)
Particulars Awarded by Awarded by this
Tribunal (Rs.) Court
Loss of dependency 5,40,000/- ( 50% 4,03,200/-
negligence
10,80,000/-)
Loss of consortium 50,000/- 1,45,200/-
Loss of estate 25,000/- 18,150/-
Funeral expenses 10,000/- 18,150/-
Total Compensation 6,25,000/- 5,84,700/-
50% negligence 2,92,350/- 2,92,350/-
Refund compensation 3,32,650/-
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Liability:
20. At this stage, it is required to be noted that as regards
the challenge made by the appellant Insurance Company on
the issue of liability is concerned, though the appellant-
Insurance Company has contended that cogent material has
been brought on record establishing the fact that the driver of
the offending truck was not holding any license at the time of
accident in view of the evidence of the investigating officer,
however the evidence of the investigating officer is not
required to be appreciated in piecemeal. This Court cannot
ignore the challenge made by the original claimants of the
evidence of the investigating officer in cross-examination who
has admitted the fact that he has not verified the holding of
the driving license of the driver of the offending truck from
the records of the RTO office. In such circumstances, it cannot
be said that the appellant Insurance Company has clearly
established on record that the driver of the offending truck
was not holding any license on the date of accident. I have
carefully considered the principles laid down by the Hon’ble
Supreme Court in the case of Swaran Singh (Supra) as
relied upon by learned advocate for the appellant Insurance
Company. Considering the summary of findings of the Hon’ble
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Supreme Court in the case of Swaran Singh (Supra), the
heavy burden has been placed on the Insurance Company to
not only establish the available defences raised in the claim
proceedings but also to establish “breach” on the part of the
owner of the vehicle though it has been left open to the
concerned Courts to consider the criteria as to in what
manner such burden would be discharged as it would depend
on the facts and circumstances of the case. It is required to be
noted that the chargesheet counter has been produced on
record at Exh. 94 wherein at the end of the investigation
though the offense punishable under Section 3 of the Motor
Vehicle Act has also been incorporated, however there is no
reference of provisions of the offense punishable under
Section 181 of the Act of 1988 being noted in the chargesheet.
Considering overall evidence on record this Court is of the
view that the tribunal has rightly not exonerated the appellant
Insurance Company from its liability to pay compensation.
21. For the reasons recorded earlier while examining the
issue of negligence, since the deceased motorcyclist also been
held equally negligent towards occurrence of accident, 50% of
the aforesaid amount of compensation determined is required
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to be reduced. Thus, the original claimant of First Appeal
No.148 of 2015 shall be entitled to total amount of
compensation to the tune of Rs.2,92,350/- with interest at the
rate of 7.5% to be realized from the original opponent nos. 1
to 3. At the same time, the directions issued by the Tribunal
exonerating the original opponent Nos.5 and 6 from the from
their liability to pay compensation is hereby confirmed.
Conclusion:
22. For the foregoing reasons the respective First Appeals
preferred by the appellant- Insurance Company is partly
allowed. The common impugned judgment and award dated
15th October 2014 passed by the Motor Accident Claim
Tribunal (Auxi), Valsad in MACP Nos. 40 of 2006 and 41 of
2006 is hereby modified by holding the respective claimants of
MACP No. 40 of 2006 to be entitled to seek recovery of claim
of compensation of Rs.7,62,140/- with interest at the rate of
7.5% from the date of filing of claim petition till its actual
realization,from the original opponents jointly and severally
and in MACP No. 41 of 2006, the original claimants are
hereby held entitled to seek recovery of total amount of
compensation of Rs.2,92,350/- with interest at the rate of
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7.5% from the date of filing of claim petition till its actual
realization, from the original opponents No.1, 2, 3 jointly and
severally with proportionate costs. The directions of the
Tribunal exonerating the original opponents No.5 and 6 are
hereby confirmed. Having held so, the appellant Insurance
Company shall be entitled to refund of amount of
Rs.6,18,860/- in First Appeal No 147 of 2015 and
Rs.3,32,650/- in First Appeal No. 148 of 2015 respectively
with interest at the rate of 7.5%. As can be noticed from the
record, the amount lying in the fixed deposit receipts in the
accounts of respective claimants shall be released and
disbursed in favour of the respective claimants as per the
apportionment made by the Tribunal in its impugned
judgment and award. However, before proceeding with the
release and disbursement of the award amount in favour of
the respective claimants, the Tribunal shall refund the amount
as determined by this order in favour of the appellant
Insurance Company. The Tribunal shall duly verify the identity
of the respective claimants and shall adhere to the guidelines
of the Hon’ble Supreme Court in this regard. Let the aforesaid
exercise be undertaken by the Tribunal within period of six
weeks from the date of receipt of the certified copy of this
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order.
23. With these observations, both the First Appeals stand
disposed of. Registry is directed to send back the Record and
proceedings of the case to the concerned Court forthwith.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
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