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Judgment
Feeling aggrieved by and dissatisfied with the common judgment and award dated 07.11.2009 passed by learned Motor Accident Claims Tribunal
(Aux.) and Presiding Officer, Fast Track Court No.2, Vadodara, (hereinafter referred to as ""the Tribunal"" for short), in Motor Accident Claim Petition
Nos.1055/2004, the appellants â€" original claimants preferred First Appeal No.985/2011 for enhancement of compensation, whereas the Oriental
Insurance Company preferred First Appeal No.696/2010, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ""the Act"" for
short). Therefore, both these appeals were heard together and are hereby disposed of by this common judgment.
Heard Mr.M.T.M Hakim, learned counsel for the appellant â€" original Claimant and Ms. Karuna Rahevar, learned counsel for the Insurance
Company in First Appeal No.985/2011. Heard Ms.Karuna Rahevar, learned counsel for the appellant  Insurance Company and Mr. M.T.M Hakim,
learned counsel for respondent No.1. No one appears for other respondents in First Appeal No.696/2010. Perused the original record and
proceedings.
The following noteworthy facts emerge from the record of the appeal:Â
3.1 That the deceased Sanjaykumar Chandubhai Patel (hereinafter referred to as ""the deceased"" for short) was practicing as an advocate at
Vadodara District Court and other Taluka Courts of Vadodara District. That, on 06.05.2004, at about 5:45 to 6:00 P.M., the deceased along with his
wife Anita after completion of Court work going to their village on motorcycle and at that time, one of his relatives Mr. Thakorebhai was also passing
from there and therefore, they stopped their motorcycles and talked with each other on the left side of the road, at that time, one tempo bearing
registration No.GJÂ6ÂUÂ 7162 containing Banana, came in rash and negligent manner and driver of said tempo lost his control over the steering and
therefore, the tempo turned turtle, due to which, wife of the deceased  Anita and Thakorbhai received injuries and the deceased received severe
injuries due to hook of the tempo. In the said accident, the deceased died during the treatment. In connection with the said accident, FIR came to be
registered and chargesheet was filed before the jurisdictional magistrate.
3.2 It is the case of the original claimant that the said accident occurred due to rash and negligent driving of driver of the tempo.
3.3 It is further the case of the claimant that the deceased was aged about 30 years on the date of accident and was practicing as an advocate under
the advocate Mr.M.P.Vyas, who used to give Rs.2,000/Â p.m and the deceased was also having additional income of Rs.10,000/Â p.m from his
profession and thereby, total income of the deceased was Rs.12,000/Â p.m.
3.4 The original claimants of First Appeal No.696/2010 filed claim petition before the Tribunal under Section 166 of the Act, claiming compensation of
Rs.21,00,000/Â, wherein the Tribunal partly allowed the claim petition and awarded compensation of Rs.4,75,000/Â along with costs and interest @ 9
% per annum from the date of filing of claim petition till its realization.
3.4 The original claimant of First Appeal No.985/2011 filed claim petition before the Tribunal under Section 166 of the Act, claiming compensation of
Rs.9,999/Â, wherein the Tribunal partly allowed the claim petition and awarded compensation of Rs.5,000/Â along with costs and interest @ 9 % per
annum from the date of filing of claim petition till its realization.
Learned counsel for the appellant in First Appeal No.985/2011 contended the following main grounds :
(i) That, the deceased was practicing advocate at Vadodara District Court and other Taluka Courts of Vadodara Districts since 2001;
(ii) That the Tribunal has wrongly determined the income of the deceased at Rs.2,500/Â p.m and therefore, the Tribunal has wrongly appreciated the
evidence of advocate Mr.M.P.Vyas, under whom the deceased was practicing as a junior;
(iii) Over and above the same, amount paid by said Mr.M.P.Vyas to the deceased was around at least Rs.10,000/Â p.m as contended before the
Tribunal and according to Mr. Hakim, the Tribunal has committed an error in determining the income, which deserves to be enhanced as contended
and as prayed for;
(iv) That, the age of the deceased was 30 years old on the date of accident and therefore, as per the judgment of the Apex Court in the case of Sarla
Verma (Smt) & Ors.
Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121], appropriate multiplier would be 17, whereas the Tribunal has considered 15 multiplier,
which deserves to be enhanced;
(v) That, the original claimant would be entitled to Rs.70,000/Â as compensation under different conventional heads as per the judgment of the Apex
Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, [2017 (16) SCC 680] and hence, compensation of Rs.25,000/Â granted by
the Tribunal under different conventional heads, deserves to be enhanced.
On the aforesaid grounds, learned counsel for the appellants has submitted that, present appeal deserves to be allowed.
Per contra, Ms. Karuna Rahevar, learned counsel for the respondent  Insurance Company in First Appeal No.985/2011 has opposed this appeal
filed by the original claimant and contended that except the oral deposition of Mr.M.P.Pandya, advocate, no evidence was adduced by the original
claimant as regards the income of the deceased and therefore, the Tribunal has rightly determined the income of the deceased at Rs.2,500/Â p.m,
which does not require any alteration. She further contended that, considering the date of accident being 06.05.2004, the Tribunal has rightly applied
multiplier of 15, which also does not require any modification. She also contended that, the compensation awarded under different conventional heads
also is appropriate and the same does not require any alteration. It was also contended that as such the original claimant  Anita, wife of the
deceased has remarried and therefore, she cannot be termed as “dependent†of the deceased and therefore, the impugned award passed in
favour of the appellant deserves to be quashed and set aside.
Ms. Rahevar, relied upon the judgment of the Apex Court in the case of Anju Mukhi & Anr. Vs. Satish K. Bhatia & Ors. [(2010) 15 SCC 630] and
contended that, status of widow of the deceased change after remarriage and hence, the original claimant is not entitled to any compensation.
On the aforesaid contentions, learned counsel for the Insurance Company submitted that the appeal filed by the original claimant being meritless,
deserves to be dismissed and the appeal filed by the Insurance Company deserves to be allowed, as prayed for.
Mr. M.T.M Hakim, learned counsel for the original claimant in First Appeal No.696/2010 contended that the appeal filed by the Insurance
Company is totally meritless because the accident has occurred on 06.05.2004 and the status of dependent is to be considered as it existed on the date
of accident and any subsequent event or development in the life and even if the original claimant has married at later stage, her right to represent the
estate of the claimant for claiming compensation, is not extinguished. Relying upon the judgment of the Division Bench of this Court in the case of
Jagruti Shishir Banugariya (Patel) Vs. Rajvi Kanthan Ahir & Ors. 2016 (2) G.L.H 113 as well as the judgment of the Hon'ble Supreme Court in the
case of Anju Mukhi & Anr. (supra), contended that the very contention raised by the Insurance Company in its appeal is squarely covered and the
Division Bench of this Court has also considered the very judgment relied upon by the Insurance Company. Mr. Hakim, therefore, contended that the
appeal filed by the Insurance Company being meritless, deserves to be dismissed.
No other or further submissions have been made by learned counsel for the parties.
Having heard learned counsel for the parties, it would be appropriate to deal with the contention raised by the Insurance company in its appeal to
the effect that the original claimant has remarried after the accident and therefore, she cannot be termed as dependent and she loses her right to
represent the estate for claiming compensation.
At this stage, it is also important to note that the original claim petition No.1055/2004 was filed under Section 166 of the Act by original claimants
viz. Anita being wife of the deceased and Chandubhai Chhotalal Patel and Shardaben Chanubhai Patel being parents of the deceased. Her status on
the date of accident was that of wife and therefore, even as per the judgment of the Apex Court in the case of Anju Mukhi & Anr. (supra), it cannot
be said that on remarriage, she loses her right to represent the estate.
The Apex Court in the said judgment of Anju Mukhi & Anr. (supra) has considered that the wife of the deceased would be entitled to
compensation till the date of remarriage. The Division Bench of this Court in the case of Jagruti Shishir Banugariya (Patel) (supra) has considered the
similar issue and also after considering the judgment of the Apex Court, has observed thus:
“9. On the aspect of remarriage by the appellant, we may record that this Court [(Jayant Patel, J.) (one of us)] had an occasion to consider the
issue in First Appeal No. 4492/07 in the case of National Insurance Company Ltd. vs. Bhartiben Bhupatbhai and others decided on 07.09.2007. This
Court in the said decision, at paras 3 to 5, observed as under Â
The learned counsel for the appellant first contended that the wife of the deceased would not be entitled to the compensation because she has
remarried after the incident and in furtherance to his submission, he contended that as per the deposition of the motherÂinÂlaw, who is one of the
claimant, the accident occurred one day after the marriage and after about three months, she has remarried and since she has remarried, she cannot
be said as dependent entitled for compensation. The learned counsel further contended that the mother of the deceased would only be entitled to the
compensation and not the widow of the deceased who has remarried. The learned counsel further contended that as per Section 166 of the Motor
Vehicles Act, only legal representative is entitled to file a claim petition. If the wife has remarried, she would cease to be the legal representative and
therefore, not entitled to claim the compensation as per the Act. The aforesaid aspects are not considered by the Tribunal and there is an error
committed by the Tribunal.
The examination of the said contention shows that the basis of the contention is on the wrong premise. The tortuous liability would accrue on the
date of accident. Merely because the adjudication has taken place on a later stage is not a relevant circumstance to get away from the liability or to
repudiate the liability of the tortfeaser. Therefore, if such principles are applied on the date of the accident, the lawfully wedded wife or the widow of
the deceased would be entitled to the compensation. Merely because at a later stage she remarried, is absolutely not justifiable ground to deprive her
from the compensation nor the insurance company which is otherwise liable to pay the compensation can get away from the liability. This Court had
considered the similar question in the First Appeal No.3299 of 2007 which came to be decided on 10.08.2007 in which the Court has observed as
under:
The learned Counsel for the appellant raised the only contention that the claimants were only father and mother of the deceased since the wife of
the deceased has remarried and on account of her abandonment of the claim pending the claim petition and, therefore, the Tribunal ought to have
awarded 1/3rd of the amount of dependency benefit, instead of 2/3rd of the benefits and, therefore, there is an error committed by the Tribunal in
awarding the compensation to the extent of 2/3rd dependency benefit.
The learned Counsel for the original claimants, during the course of hearing placed on record the application for deletion, the order passed by this
Court and the affidavit of the wife of the deceased and also the recent affidavit dated 18.7.2007 for the declaration by the wife, who has remarried to
the effect that she has abandoned the right in favour of the parents of the deceased.
It appears that as per the principles of tortuous liability the relevant event is the date of the accident and no the subsequent circumstances of the
dependent members of the deceased, who expired in the accident. It is not in dispute that on the date of the accident the deceased was married and
the wife as well as the parents namely; father and mother both were dependents of the deceased. Therefore, the liability, if any, in accordance with
law did accrue for the appellant Insurance Company or the other tort feasors, as the case may be. It is true that in the present case, pending the claim
petition, the wife of the deceased has abandoned the claim and on account of the same, her name was deleted, but under such circumstances, the
reasonable construction would be that the wife is not interested to succeed the property or the dependency benefit realised therefrom of the deceased.
Even as a successor of any person, who is governed by Hindu Succession Act, wife, father and mother are in the first degree of the successor. On
account of either nonÂexistence of any of the members of successor in the first degree, the properties are to be enjoyed by the remaining members
falling in the category of first degree succession. It may be that the number of persons, who are dependent upon the deceased may have the
relevance while ascertaining the compensation, but after the accident, if the wife has remarried or that one of the parents, either father or mother has
expired, would not be a justifiable ground to contend that the Insurance Company would not be liable to pay the compensation, though liability already
accrued in accordance with law on the date of accident.
Therefore, keeping in view the aforesaid aspects, if the present case is considered, it cannot be said that the Tribunal has committed error in
awarding 2/3rd amount as compensation. As observed earlier, the appellant Insurance Company would not be entitled to take any benefit of the
deletion of the name of the wife. Further, it also deserves to be recorded that the affidavit is filed, which shows that the wife has abandoned her right
in favour of the parents of the deceased. Such circumstances are not unknown in cases where on account of the accident the person concerned has
expired and the wife has remarried. It appears that if the legal liability based on the principles of law of tort read with the provisions of the Motor
Vehicle Act has accrued on the date of accident, the Insurance Company cannot validly contended that the Tribunal ought not to have awarded the
compensation merely because the wife has remarried or she has abandoned her right or got herself deleted by abandoning the right in favour of the
parents of the deceased.
The reference may also be made to the decision of the Division Bench of this Court in case of New Indian Insurance Company Limited v. Ramsinh
Abhesinh Rathod & Ors."", reported in 2006(0) GLHEL 217371, wherein the Division Bench of this Court, on account of the death of one of the
parents, observed that the quantum of compensation would continue, if subsequent to the date of the accident, even if one of the surviving parents has
continued to hold the interest.
In view of the above, it cannot be said that the Tribunal has committed error in awarding the compensation of 2/3rd of the dependency benefit.
Hence, the appeal is meritless and, therefore, deserves to be dismissed.
Therefore, the contention as sought to be canvassed cannot be accepted. The attempt on the part of the learned counsel to contend that the
marriage was only for one day and the wife is now not dependent upon the income of the deceased on account of the remarriage, cannot be
countenanced at the instance of the Insurance Company and this Court is not called upon to decide the inter se dispute between the motherÂin law
and the wife. So far as the insurance company is concerned, as the tortuous liability has accrued, it is not absolved or cannot get away from the
liability to pay the compensation as per the Act to the legal heirs of the deceased. Wife of the deceased, even if married at a later stage would
continue to represent the estate for claiming the compensation under Section 166 of the Act which is based on the cause of action on the date of the
accident and therefore, the said contention cannot be accepted and is rejected.
The aforesaid observations show that this Court by relying upon the earlier decision, wherein the reference of another decision of the Division Bench
is also made, the contention raised by the Insurance company to avoid liability on account of remarriage of wife of the deceased was expressly
negatived.
However, Mr.Parikh, learned counsel appearing for the respondent insurance company by relying upon the decision of the Apex Court in the case
of Anju Mukhi & Anr. v. Satish K. Bhatia & Ors. reported at (2010) 15 SCC 630 contended that the Apex Court had approved the view of the High
Court of Madhya Pradesh in the case of parties before the High Court reported at 1998 ACJ 400.
The examination of the said contention shows that the High Court of Madhya Pradesh in its decision at paragraph 3, recorded the fact that the
income of the husband was Rs.1,500/Â per month and further took note of the fact that the wife of the deceased had admitted in the crossÂ‐
examination that she is happy with the marital life. It is in light of the facts and circumstances, the view was taken by the High Court was not
interfered with by the Apex Court. In the present case, no evidence has come on record about the income of the husband nor the satisfaction of the
wife of the deceased about the quality of life after remarriage. Under these circumstances, the said decisions are of no help to the learned counsel for
the insurance company.â€
In the case on hand also, there is no evidence on record to establish the income of the husband or satisfaction of wife of the deceased about
quality life for remarriage. Similar view is taken by the Division Bench of this Court in the case of Indiraben Bankimchandra Ravjibhai Patel & Ors.
Vs. Ranchhodbhai Vitthalbhai Chauhah & Ors. [First Appeal No.788/2009] following the judgment of the Apex Court in the case of Anju Mukhi &
Anr. (supra).
In light of the aforesaid facts and circumstances of the case, it cannot be said that on remarriage, right of wifeÂAnita, who was one of the original
claimants is extinguished and therefore, First Appeal No.696/2010 deserves to be dismissed.
Upon reappreciation of the evidence on record, it is no doubt true that no supportive evidence except oral evidence in form of deposition of the
claimants as well as bare statement of advocate Mr. M.P.Vyas, is on record. However, the fact remains that the deceased was a practicing advocate
and had put practice at least 3 years on the date of accident. The Tribunal having believed the version of advocate Mr.M.P.Vyas, has not considered
that the additional income of the deceased was only Rs.500/Â p.m and on the said basis, determined the income at Rs.2,500/Â p.m. The Apex Court
even in the case of housewife in absence of any evidence has determined the income considering the date of accident, at Rs.3,000/Â p.m. It is an
admitted position that the deceased was B.Com, LL.B (special) and was practicing advocate. Upon considering the evidence as a whole, this Court is
of the opinion that the income of the deceased can safely be determined at Rs.4,000/Â p.m, more particularly considering the fact that 'Sanad' of the
deceased was issued in the year 2001 and thus, the deceased had put in practice at least 3 years.
Even we find from the impugned judgment and award that the Tribunal has considered prospective income to the tune of 50 %. However,
considering the judgment of the Apex Court in the case of Pranay Sethi (supra) as the deceased was self employed, would be entitled to increase in
income by way of prospective income to the tune of 40%.
Similarly, we also find that the Tribunal has not granted appropriate multiplier. Further, school leaving certificate at Exh:48 clearly indicates that the
deceased was 30 years old on the date of accident and hence, following the judgment of Sarla Verma (Smt) & Ors.
(supra), appropriate multiplier would be 17.
Having come to the aforesaid conclusion, the original claimant would be entitled to compensation under the head of loss of dependency :
Rs.4,000/Â Income p.m
+ Rs.1,600/Â 40 % future prospects income
ÂÂÂÂÂÂÂÂÂ
Rs.5,600/Â
 Rs.1867/ 1/3 towards personal expenses
ÂÂÂÂÂÂÂÂÂÂ
Rs.3,733/Â
x 12 months
ÂÂÂÂÂÂÂÂ
Rs.44,796/Â
X 17
ÂÂÂÂÂÂÂÂÂÂ
Rs.7,61,532/Â Rounded to Rs.7,61,600/Â.
As far as compensation under the conventional heads is concerned, following the ratio laid down by the Apex Court in the case of Pranay Sethi
(supra), the appellants would be entitled to Rs.70,000/Â under the conventional heads. Thus, the appellants would be entitled to get total compensation
of Rs.8,31,600/Â.
As Rs.4,75,000/Â is already awarded by the Tribunal, the Insurance Company shall deposit a sum of Rs.3,56,600/Â before the Tribunal with
proportionate costs and interest at the rate 9 % from the date of filing of claim petition till its realization.
Hence, First Appeal No.985/2011 is partly allowed. First Appeal No.696/2010 is dismissed. The impugned judgment and award dated 07.11.2009
stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. Respondent No.3 â€" Oriental Insurance Company shall
deposit said additional amount of Rs.3,56,600/Â with interest at the rate 9 % from the date of filing of claim petition till its realization before the
Tribunal within a period of four months from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal
forthwith. However, in the facts of the case, no order as to costs. oaded on : Tue Apr 14 16:57:44 IST 2020