National Insurance Company Ltd. vs Dineshbhai G. Patel

M.R. Shah, J.—Mr. Maulik Shelat, learned Advocate appearing on behalf of the appellant seeks permission to delete respondent No. 2. Permission as prayed for is granted. The respondent No. 2 stands deleted.

In the facts and circumstances of the case and with the consent of the learned Advocates appearing on behalf of the respective parties and as the controversy involved in the present appeal is in a very narrow compass and relevant evidence is placed before the Court before the Court for the perusal of the Court, present appeal is taken up for final hearing today.

Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Gandhinagar in Motor Accident Claim Petition No. 303 of 2005, by which the learned Tribunal has partly allowed the said claim petition and has awarded total sum of Rs. 15,13,700/-, to the original claimants towards the compensation for the death of the deceased Dineshbhai Gopalbhai Patel, appellant herein-original opponent No. 2-National Insurance Company Limited has preferred the present First Appeal.

Facts leading to the present First Appeal, in nutshell, are as under:

4.1 That in a vehicular accident which took place on 30-5-2005 at about 2-00 p.m. near village Vavdi on Himmatnagar-Talod Road between Maruti Wagon-R Car bearing registration No. GJ-1-HA-8280, which was driven by the deceased and motor Truck bearing registration No. CG-04G-5011, driven by the original opponent No. 1, deceased Dineshbhai Gopalbhai Patel sustained serious injuries and thereafter died during the treatment on the next day. Therefore, the original claimants - respondent Nos. 1/1 to 1/5 herein filed claim petition before the learned Tribunal claiming Rs. 40 Lacs towards compensation for the death of the deceased.

4.2 It was the case on behalf of the original claimants that the driver of the motor truck involved in the accident was rash and negligent. It was the case on behalf of the original claimants that the deceased at the relevant time was aged 47 years of age and he was serving in the Revenue Department, Sachivalaya, Gandhinagar and was getting monthly salary of Rs. 16,874/-. It was the case on behalf of the original claimants that after taking voluntary retirement from the Government service, the deceased was doing business of running petrol pump of his own and was having income of Rs. 30,000/- per month. It was me case on behalf of the original claimants that the deceased was the only bread-winner of in the family and because of untimely death of the deceased, the family has suffered a great economic loss. Therefore, it was requested to award total sum of Rs. 40 Lacs towards compensation with interest at the rate of 15% per annum.

4.3 The claim petition was opposed by the appellant herein-original opponent No. 2-Insurance Company by filing Written Statement at Exh. 12. It was denied that the accident has taken place due to the rash and negligent driving of the opponent No. 1. It was submitted that the accident has occurred due to the sheer negligence on the part of the deceased. The Insurance Company also pleaded contributory negligence in the alternative. It was also specifically denied that there was any loss of income and/or economic loss to the family members/claimants.

4.4 That the learned Tribunal framed the issue at Exh. 15. The claimants lead evidence both oral as well as documentary. The son of the deceased - one of the claimants namely Ravibhai Dineshbhai came to be examined at Exh. 50.

4.5 The claimants also produced the following documentary evidence:

4.6 On appreciation of evidence, the learned Tribunal has held the opponent No. 2 driver of the truck sole negligent for the accident.

4.7 The learned Tribunal considered dependency/loss of income to the family of the deceased - claimants at Rs. 14,000/- per month, and thereafter, deducting 1/3rd amount towards personal expenses of the deceased, considered family dependency/loss at Rs. 9,350/- per month and applying multiplier of 13, awarded total sum of Rs. 14,58,600/- towards future economic loss and awarded a sum of Rs. 10,000/- towards the pain, shock and suffering, Rs. 10,000/- towards loss of expectation of life; Rs. 10,000/- towards consortium and loss to the estate; Rs. 3,000/- towards future economic loss; Rs. 22,100/- towards medical expenses, and thus, by the impugned judgment and award has awarded a total sum of Rs. 15,13,700/- under all the heads and towards compensation for the death of the deceased along with interest at the rate of 9% per annum from the date of filing of the claim petition till realisation.

4.8 Feeling aggrieved by and dissatisfied with the aforesaid impugned judgment and award passed by the learned Tribunal, appellant-Insurance Company has preferred present First Appeal.

Mr. Maulik Shelat, learned Advocate appearing on behalf of the appellant-Insurance Company has vehemently submitted that the learned Tribunal has materially erred in awarding Rs. 14,58,600/- under the head of future economic loss. It is submitted that the learned Tribunal has materially erred in considering Rs. 10,000/- per month towards economic loss to the claimants. It is further submitted by Mr. Shelat, learned Advocate appearing on behalf of the appellant-Insurance Company that as such, and even after the death of the deceased, there was no loss of income to the family members of the deceased/claimants, as petrol pump run by the deceased was subsequently continued by the widow of the deceased-Manjulaben. It is submitted that the aforesaid is admitted by the son of the deceased in his cross-examination. It is submitted that even from the documentary evidences on record, it has come on record that the income which the deceased was receiving by running petrol pump has been continued and there is no loss of income at all to the claimants from the said business. It is further submitted by Mr. Shelat, learned Advocate appearing on behalf of the appellant-Insurance Company that in the cross-examination, the son of the deceased has categorically admitted that the business of running petrol pump has been continued and after the death of the deceased, they were required to engage one person for supervision and administration of the petrol pump who has been paid Rs. 2,000/- to Rs. 2,500/- per month. It is submitted that therefore at the most the claimants would be entitled to Rs. 2,500/- per month towards salary paid to the person engaged for administration and management of the petrol pump as well as Rs. 2,500/- towards supervision by Manjulaben - widow of the deceased to run the petrol pump after the death of the deceased.

5.1 Mr. Shelat learned Advocate appearing on behalf of the appellant-Insurance Company has heavily relied upon the decision of the Hon''ble Supreme Court in the case of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) ACJ 1800 : AIR 2003 SC 3696 : (2003) 1 JT 601 Supp : (2003) 135 PLR 414 : (2003) 6 SCALE 113 : (2003) 7 SCC 484 : (2003) 2 SCR 245 Supp : (2003) 2 UJ 1527 : (2003) AIRSCW 4198 : (2003) 6 Supreme 206 as well as in the case of New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) ACJ 702 : AIR 2012 SC 945 : (2012) 114 CLT 305 : (2012) 2 JT 265 : (2012) 2 SCALE 409 : (2012) 3 SCC 613 : (2012) 2 TAC 1 : (2012) AIRSCW 1519 : (2012) 2 Supreme 284 .

Making above submissions and relying upon above decisions, it is requested to allow the present appeal accordingly.

Present appeal is opposed by Mr. Hiren Modi, learned Advocate appearing on behalf of the original claimants. He has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has not committed any error in awarding Rs. 14,58,600/- towards future economic loss to the family members of the deceased considering dependency loss at Rs. 9,350/- per month.

6.1 Mr. Hiren Modi, learned Advocate appearing on behalf of the original claimants has further submitted that merely because after the death of the deceased, his widow continued with the business of running petrol pump and was earning, the same is no ground to deny the future economic loss to the claimants. It is submitted that as it was found that the deceased was earning Rs. 14,000/- per month by doing business of running petrol pump and on his death there would be a loss to the family members to the extent of Rs. 14,000/- per month, despite the fact that after the death of the deceased, the business of running petrol pump has been continued, the claimants shall be entitled to future economic loss, and therefore, the learned Tribunal is justified in awarding future economic loss considering dependency loss at Rs. 9,350/- per month (after considering monthly income of the deceased at Rs. 14,000/- per month).

6.2 Mr. Hiren Modi, learned Advocate appearing on behalf of the original claimants has heavily relied upon the decision of the Division Bench of this Court rendered in First Appeal No. 3353 of 2012 in support of his submission that despite the fact that after the death of the deceased business of running petrol pump has been continued, the claimants are entitled to future economic loss considering the income of the deceased. No other submissions have been made.

Making above submissions and relying upon above decision, it is requested to dismiss the present appeal.

Heard the learned Advocates appearing on behalf of the respective parties and considered the impugned judgment and award passed by the learned Tribunal. We have also scanned, appreciated and re-appreciated the entire evidence on record produced by the learned Advocate appearing on behalf of the appellant-Insurance Company.

7.1 At the outset, it is required to be noted that the controversy/issue involved in the present case, is in a very narrow compass and the only issue required to be considered by this Court is whether in the facts and circumstances of the case the learned Tribunal is justified in awarding Rs. 14,58,600/- to the original claimants under the head of future economic loss considering the dependency/loss to the family at Rs. 9,350/- per month?

7.2 It is required to be noted that while considering the dependency loss at Rs. 9,350/- per month, the learned Tribunal has considered the family income of the deceased at Rs. 14,000/- per month and thereafter deducting 1/3rd amount towards personal expenses of the deceased, the learned Tribunal has determined family dependency loss at Rs. 9,350/- per month. That the learned Tribunal has considered family dependency loss considering the income of the deceased at Rs. 14,000/- per month which the deceased was getting by doing business of running petrol pump. However, it is required to be noted and it is not in dispute that after the death of the deceased, dealership of petrol pump came to be transferred in the name of the widow of the deceased-Manjulaben and the business of running petrol pump has been continued and the family members/claimants are receiving the same income, rather some more income by running the petrol pump which the deceased was running. Therefore, as such there is no loss of income from the business of the petrol pump to the family members of the deceased. Therefore, as such the learned Tribunal has materially erred in awarding future economic loss considering family dependency at Rs. 9,350/- per month considering the income of the deceased at Rs. 14,000/- per month. However, at the same time it cannot be lost sight that after the death of the deceased and for the purpose of running petrol pump and even as admitted by the son of the deceased in his cross-examination that for the purpose of running petrol pump they were required to engage one person for administration and management of the business of running petrol pump, who has been paid Rs. 2,000/- to Rs. 2,500/- per month, and therefore, the claimants would be entitled to the said amount.

7.3 Similarly, when Manjulaben-widow of the deceased is running petrol pump after the death of the deceased, she would be entitled to reasonable amount towards supervision also, considering the fact that one another person was engaged for supervision and management of the petrol pump on payment of salary at Rs. 2,000/- to Rs. 2,500/- per month, and therefore, if an amount of Rs. 2,500/- per month is awarded towards the supervision by Manjulaben-widow of the deceased, it will meet the ends of justice.

7.4 Identical question came to be considered by the Hon''ble Supreme Court in the case of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) ACJ 1800 : AIR 2003 SC 3696 : (2003) 1 JT 601 Supp : (2003) 135 PLR 414 : (2003) 6 SCALE 113 : (2003) 7 SCC 484 : (2003) 2 SCR 245 Supp : (2003) 2 UJ 1527 : (2003) AIRSCW 4198 : (2003) 6 Supreme 206 as well as in the case of New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) ACJ 702 : AIR 2012 SC 945 : (2012) 114 CLT 305 : (2012) 2 JT 265 : (2012) 2 SCALE 409 : (2012) 3 SCC 613 : (2012) 2 TAC 1 : (2012) AIRSCW 1519 : (2012) 2 Supreme 284 .

In the case of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) ACJ 1800 : AIR 2003 SC 3696 : (2003) 1 JT 601 Supp : (2003) 135 PLR 414 : (2003) 6 SCALE 113 : (2003) 7 SCC 484 : (2003) 2 SCR 245 Supp : (2003) 2 UJ 1527 : (2003) AIRSCW 4198 : (2003) 6 Supreme 206 the Hon''ble Supreme Court has held that the compensation must be "just and reasonable" i.e. proportionate to "damages" in the real sense. It is further held that it should neither be bonanza nor a source of profit nor a pittance. It is further observed and held that compensation to be quantified taking into consideration the facts and circumstances and attending peculiar or special features which requires judicial and rational approach. In the case before the Hon''ble Supreme Court the deceased was an agriculturist and while determining the compensation for the death of the deceased agriculturist, it is observed and held by the Hon''ble Supreme Court that normal rule of deprivation of income would not be applicable in such cases since land owned by such deceased is inherited by the claimants.

A similar view has been taken by the Hon''ble Supreme Court in the recent decision in the case of New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) ACJ 702 : AIR 2012 SC 945 : (2012) 114 CLT 305 : (2012) 2 JT 265 : (2012) 2 SCALE 409 : (2012) 3 SCC 613 : (2012) 2 TAC 1 : (2012) AIRSCW 1519 : (2012) 2 Supreme 284 .

7.5 Thus, it can be said that the claimants shall be entitled to at least Rs. 5,000/- per month towards dependency loss/future economic loss. Considering the decision of the Hon''ble Supreme Court in the case Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , as the deceased was aged 47 years of age at the time of accident, multiplier of 13 is required to be applied.

7.6 Now, so far as reliance placed upon decision of the Division Bench of this Court rendered in First Appeal No. 3353 of 2012 is concerned, on considering the same, we are of the view that on the facts of the case on hand, the said decision would not be applicable to the facts of the case on hand. On the contrary, the aforesaid decision of the Hon''ble Supreme Court takes the view that the claimants shall be entitled to compensation for loss of supervision. In the facts and circumstances of the case, the decisions of the Hon''ble Supreme Court in the case of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) ACJ 1800 : AIR 2003 SC 3696 : (2003) 1 JT 601 Supp : (2003) 135 PLR 414 : (2003) 6 SCALE 113 : (2003) 7 SCC 484 : (2003) 2 SCR 245 Supp : (2003) 2 UJ 1527 : (2003) AIRSCW 4198 : (2003) 6 Supreme 206 and in the case of New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) ACJ 702 : AIR 2012 SC 945 : (2012) 114 CLT 305 : (2012) 2 JT 265 : (2012) 2 SCALE 409 : (2012) 3 SCC 613 : (2012) 2 TAC 1 : (2012) AIRSCW 1519 : (2012) 2 Supreme 284 would be applicable.

7.7 Under the circumstances, the claimants shall be entitled to Rs. 7,80,000/- under the head of future economic loss. The learned Tribunal has awarded Rs. 10,000/- only under the head of expectation of life; Rs. 10,000/- under the head of consortium and loss of estate. Considering the catena of decisions of the Hon''ble Supreme Court as well as this Court and as the accident occurred in the year 2005, we are of the opinion that the claimants shall be entitled to Rs. 25,000/- under the head of expectation of life and Rs. 25,000/- under the head of consortium and loss of estate.

In view of the above and for the reasons stated hereinabove, present appeal succeeds in part. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal in Motor Accident Claim Petition No. 303 of 2005 is hereby modified to the extent, and it is held that the original claimants are entitled to total compensation of Rs. 8,65,100/- under following different heads with 9% interest from the date of claim petition till realization instead of Rs. 15,13,300/- as awarded by the learned Motor Accident Claims Tribunal:

The appellant-Insurance Company shall be entitled to refund the amount deposited in excess to the aforesaid and the same shall be refunded/returned to the appellant-Insurance Company from the amount deposited by the appellant-Insurance Company and kept in Fixed Deposit with proportionate interest accrued thereon and if still there is deficit, from the original claimants. Present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.