New India Assurance Co Ltd vs Narmadaben Kiranbhai Tandel on 8 April, 2026

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    Gujarat High Court

    New India Assurance Co Ltd vs Narmadaben Kiranbhai Tandel on 8 April, 2026

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                                 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
                           =============================================
                            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

    SPONSORED

    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
    
    
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                              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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