FA/328/2005 of NATIONAL INSURANCE CO. Vs VARSHABEN BHOPABHAI on 30 December 2008

Issues

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA)

1. Record shows that all the respondents are duly served. Ms. Amrita Ajmera, learned advocate appears on behalf of the original claimants. So far as the other respondents are concerned, though served, they have not chosen to remain present personally or through Advocate.

2. Learned advocates for the respective parties are having the papers and therefore, with their consent, the matter is taken up for final hearing. R & P is also received by the court.

3. Heard the learned advocates for the respective parties. The present appellant-original respondent No.2 of MACP No.307 of 1998, has preferred this appeal against the award passed by the learned Motor Accident Claims Tribunal (Main), Surendranagar. The Tribunal passed the award in two MACPs being MACP No.307/98 and MACP 308/98. So far as MACP 308/98 is concerned, the same has not been challenged by the other side.

The short facts of the case are as under:

4. On 10.4.1998, deceased Bhopabhai Jagabhai was travelling on a motor cycle, bearing registration No. GJ-13 C-8327, as pillion rider. The said motor cycle was driven by Bhailalbhai Narshibhai, claimant of MACP No.308/98. According to the claimant, Bhailalbhai was driving the motor cycle at a moderate speed and on the correct side and they were going to Fulgram from Chuda. When they reached near Patiya of village Morvad on Ahmedabad-Rajkot Highway, a truck, bearing registration No.GJ-17 X-2624 came from the opposite side in a rash and negligent manner with an excessive speed and dashed with the motor cycle of Bhailalbhai. As a result of that, Bhopabhai Jagabhai sustained serious bodily injuries and died on the spot whereas driver of the motor cycle Bhailalbhai also sustained grievous hurt.

5. It is the case of the claimant that deceased Bhopabhai was hardly 23 years old at the time of the accident and that he was hale and hearty and had no vices. It was further contended that he was serving as a qualified Teacher in Baxipanch Ashramshala, Fulgram and was getting salary of Rs.5,000/- per month including all benefits. He was very good at his studies and was taking much interest in different faculties and as such he was likely to get higher pay hike.

6. After giving reasonable opportunity of hearing to all the parties concerned, the learned Tribunal has awarded total compensation of Rs. 10,49,336/- to the claimants-present respondents. Being aggrieved and dissatisfied by the said award, the present appeal has been preferred.

7. We have heard the learned counsel for the respective parties. Learned counsel for the appellant-Insurance Company has mainly argued on two points. Firstly, that there is contributory negligence on the part of deceased Bhopabhai and secondly, on the ground of quantum. It has been has been argued by him that though it is claimed that the deceased was getting a salary of Rs.5,000/- per

5/9JUDGMENT

month, according to him, as per the salary certificate Exh.21, his total salary was 3,685/- including all benefits. So, according to the learned advocate for the appellant, the Tribunal has considered the monthly income of the deceased as Rs.9,190/- which is unjust and improper. He also took us to the relevant Exhibits from the record which are dealt with by the learned Tribunal in its judgment.

8. As far as the contributory negligence part is concerned, at the time of the argument, learned counsel for the appellant was not in a position to sustain the above contention that the deceased had not contributed towards the accident in question as he was a pillion rider of the motor cycle. We also do not find any reason to interfere with the award on the ground of contributory negligence. However, at the cost of repetition, it is to be noted that the deceased has not contributed anything towards the accident in question.

9. The next point is with regard to quantum of

compensation. As far as the quantum is concerned, it reflects from the award that at the time of the trial, the Insurance company has submitted application under section 170 – Exh.33. The same has been allowed by the Tribunal. For passing a reasoned order, the Insurance company was permitted to take all possible legal defence. But the fact remains that as per the Certificate Exh.63, the revised salary of the deceased is Rs.4,670/- details of which are given in page 11 of the judgment of the Tribunal. The court has further considered the future income of the deceased mainly on the ground that if the deceased had not met with the accident, then at the time of his retirement he would have earned Rs.13,710/- per month and for which the Tribunal has placed reliance upon the statement of the probable income of the deceased at Exh.65. So, keeping in mind the above facts of the matter and after discussing the same in detail, the Tribunal has presumed that the probable income of the deceased as Rs.13,710/- per month. Also keeping in mind the age of the deceased which as per the evidence on record, at the time of the accident,

was 23 years old and hence, the court has also applied a multiplier of 14.

10. This court cannot ignore the fact that in Government services, more particularly, Education department, the retirement age is 58 or 60 and if we consider the same, he would have further earned for a considerable period of 21 years. But the said fact has not been considered by the Tribunal. We are not entering into the above aspects. The fact remains that the Tribunal has considered the income of the deceased as Rs. 13,710/- but simultaneously has added the actual income of Rs. 4,670/- to it. After taking into consideration the case reported in Sarla Dixit and Anr. v. Balvant Yadav & Ors. (1996 ACJ 581) and also in the case of Rafia Sultan v. ONGC(1986 ACJ 616) and after taking into consideration the amount of proportionate income etc., the Tribunal came to the conclusion that for the purpose of calculating the income, the amount of Rs.18,380/- is required to be taken into consideration. Thereafter the Tribunal has divided the said amount by two and came to the conclusion

that the average gross monthly income spread over the entire future career, worked out to Rs.9,190/-. Not only that, but thereafter the Tribunal has deducted 1/3[rd] amount towards his personal up-keep and pocket expenses and came to the conclusion that the net dependency amount would be Rs. 6,127/- per month. This fact is to be taken into consideration. The Tribunal has applied multiplier of 14 years which we say, is on a lower side, but we are not entering into that issue. The calculation of Rs.6,127 x 12 x 14 years = Rs. 10,29,336/- according to us is just and proper and legal calculation based on sound principles laid down by the Hon'ble Apex Court.

11. For the foregoing reasons, we do not find any reason to interfere with the impugned award dated 8.10.2004 passed by the Motor Accident Claims Tribunal (Main), Surendranagar in MACP No. 307 of 1998. This appeal is accordingly dismissed and the impugned award dated 8.10.2004 passed by the Motor Accident Claims Tribunal (Main), Surendranagar in MACP No. 307 of 1998 is confirmed.No order as to costs.

[R P DHOLAKIA, J.]

msp

[M.D. SHAH, J.]