Partly allowed

Iffco Tokio General Insurance Company Ltd. v. Sukhiben @ Sukaliben Wd/O Bhalabhai Baria

Gujarat HC1 May 2018FA/1207/2018

Case brief

AI extract

What is this about?

The High Court modified the Motor Accident Claims Tribunal's award in a motor accident death case. It reduced the deceased's assessed monthly income from the Tribunal's Rs.6,580/- to Rs.6,000/- as no documentary evidence supported higher claims. The Court applied a 25% future prospectus addition per the Supreme Court in Pranay Sethi, resulting in a total compensation of Rs.8,50,000/-.

What did the court decide?

Compensation reduced to Rs.8,50,000/-; Tribunal directed to refund the difference to the appellant with interest.

Iffco Tokio General Insurance Company Ltd. Vs Sukhiben… — Motor Accident Claims | Gujarat HC (2018)

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C/FA/1207/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 1207 of 2018 With CIVIL APPLICATION NO. 2 of 2018

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

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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD

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Versus

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SUKHIBEN @ SUKALIBEN WD/O BHALABHAI BARIA

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========================================================== Appearance:

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MR NILESH A PANDYA(549) for the PETITIONER(s) No. 1 CHETANKUMAR K SHAH(7364) for the RESPONDENT(s) No. 1

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========================================================== CORAM: HONOURABLE MR.JUSTICE C.L. SONI

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Date : 01/05/2018

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ORAL ORDER

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Learned advocate Mr. Pandya for the appellant states that since the appeal is to be decided on the question of quantum, the appeal could be disposed of finally as the claimant- respondent No.1 is represented by learned advocate Mr. Shah. Mr. Shah states that he has no objection if the appeal is taken up for final disposal. Hence, ADMIT . Learned advocate Mr. Shah waives service of notice of admission of the appeal for respondent No.1. No notice to the respondent Nos.2 and 3 is required to be issued. At the request of learned advocates for the appellant and the original claimant, the appeal is taken up for final hearing and disposal.

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The appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (‘the Act’) against the judgment and award dated 10.8.2017 passed by the Motor Accident Claims Tribunal (Aux.), District Panchmahal at Godhra in Motor Accident Claim Petition No.416 of 2014 filed by the respondent No.1.

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The respondent No.1 filed the claim petition under Section 166 of the Act claiming compensation of Rs.17 lac in connection

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Page 1 of 6

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C/FA/1207/2018 ORDER

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with the death of her husband Bhalabhai Baria (to be referred as ‘deceased’) in the accident happened on 27.11.2013 allegedly on account of rash and negligent driving of the motor vehicle by the driver of the vehicle- the respondent No.2. As per the case of the claimant and as per the deposition of the claimant in support of the claim petition, the deceased was earning Rs.8,000/- per month by doing tailoring work, agriculture work and from seasonal mango business and on the date of accident, he was aged 50 years. The Tribunal has recorded that the claimant has not produced any evidence in support of her oral evidence to establish that the deceased was earning Rs.8,000/- per month. The Tribunal further observed that when there is no proof of income of the deceased, the income of the deceased could be assessed by taking into consideration the prevailing minimum wages. The Tribunal considered the notification for minimum wages and recorded that Rs.5,580/- per month would be as per minimum wages in the year in which the accident had happened, i.e. 2013, and also considered Rs.1,000/- towards agriculture income and assessed monthly income of the deceased at the rate of Rs.6,580/-. To such monthly income of the deceased, the Tribunal added 30% thereof towards future prospectus and arrived at Rs.8,554/- per month and deducted one-third towards personal expenditure of the deceased and assessed Rs.5,702.67 as dependency loss of the claimant per month. Such figure is when multiplied by 12, it came to Rs.68,432.04 as dependency loss per year. Considering the age of the deceased, the Tribunal applied multiplier of 13 and arrived at Rs.8,89,617/- as total loss of dependency to the claimant. The Tribunal then added Rs.1,00,000/- towards consortium, Rs.25,000/towards funeral expenses and Rs.1,00,000/- towards loss of love, affection and care and held the claimant entitled to total compensation of Rs.11,14,617/-, to be recovered from the appellant,

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Page 2 of 6

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C/FA/1207/2018 ORDER

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respondent Nos.2 and 3 jointly and severally with interest at the rate of 9% from the date of the claim petition till its realization.

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Learned advocate Mr. Nilesh Pandya submitted that in absence of any proof for the income of the deceased, when the Tribunal relied on the minimum wages prevailing in the year 2013, the Tribunal could not have further considered Rs.1,000/- from agriculture income to assess the income of the deceased. Mr. Pandya submitted that as per the case of the claimant, the deceased was self-employed and aged 50 years and therefore, addition of 25% to the established income of the deceased was warranted towards future prospectus instead the Tribunal has added 30% which is contrary to the law laid down by Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in 2017(3) GLH 536 . Mr. Pandya submitted that for awarding the amounts on conventional heads also, the Tribunal serious erred in relying on the decision of Hon’ble Supreme Court in the case of Rajesh Vs. Rajbir Singh reported in (2013)9 SCC 54 , which is held to be not valid law by Hon’ble Supreme Court in the case of Pranay Sethi (supra). He submitted that as per the decision in the case of Pranay Sethi (supra), the claimant shall be entitled to total Rs.70,000/- on conventional heads. Mr. Pandya submitted that since the Tribunal has awarded excess compensation than the entitlement of the claimant, the judgment and award of the Tribunal is required to be modified to the extent the Tribunal has awarded excess amount to the claimant.

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Learned advocate Mr. Shah appearing for the claimant submitted that the oral evidence of the claimant on the aspect of the income of the deceased could not be dislodged by the appellant and the other opponents in the claim petition. Mr. Shah submitted that in absence of any contrary evidence by the appellant and other

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Page 3 of 6

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C/FA/1207/2018 ORDER

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opponents, the Tribunal was required to take income of the deceased at Rs.8,000/- per month, however the Tribunal adopted conservative approach of taking minimum wages prevailing in the year 2013 and added only Rs.1,000/- towards agriculture income. Mr. Shah submitted that when the claimant established by oral evidence that the deceased was earning Rs.8,000/- per month from different businesses, there is no reason to interfere with the income of the deceased assessed by the Tribunal. However, on the aspect of considering the future prospectus of the deceased as also on the aspect of awarding the amounts on conventional heads, Mr. Shah could not dispute that as per the decision of Hon’ble Supreme Court in the case of Pranay Sethi (supra), the Tribunal ought to have added 25% to the income assessed by the Tribunal towards future prospectus of the deceased as the deceased was self-employed and aged 50 years and that Rs.70,000/- in all, i.e. on the heads of consortium, funeral expenses and love, affection and care, could have been awarded instead of Rs.2,25,000/-.

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The Court, having heard learned advocates, finds that as rightly observed by the Tribunal, the claimant had not adduced any evidence in support of her oral evidence to establish the income of the deceased and therefore the Tribunal took minimum wages prevailing in the year 2013 into consideration to decide the income of the deceased. The Tribunal however has further considered Rs.1,000/- per month as agriculture income of the deceased and adding such Rs.1,000/- to Rs.5,580/-, which was taken as minimum wages per month, the Tribunal assessed Rs.6,580/- as monthly income of the deceased. Learned advocate Mr. Shah submitted that since by the evidence of the claimant, it was established that the deceased was doing different kinds of activities to earn livelihood, his income could have been assessed higher to Rs.6,580/- per month. On the other hand, there also appears to be substance in the

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C/FA/1207/2018 ORDER

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argument of Mr. Pandya that once the Tribunal decided to consider the minimum wages to arrive at income of the deceased, no other source of income could have been considered by the Tribunal. In view of such submissions from both the sides, the Court finds that if a figure of Rs.6,000/- per month is taken as income per month of the deceased, the same would serve the cause of justice. Accordingly, the income of the deceased is assessed at Rs.6,000/- per month at the time when the accident occurred. The deceased being selfemployed and aged 50 years, as per the decision in the case of Pranay Sethi (supra), 25% of the income assessed shall be required to be added towards the future prospectus of the deceased. Such adding of 25% would bring figure of Rs.7,500/-. From such amount, it 1/3^rd (one-third) towards personal expenses of the deceased is deducted, Rs.5,000/- per month could be arrived as the loss of dependency per month to the claimant and if multiplied by 12, loss of dependency to the claimant per year would come to Rs.60,000/-. Applying multiplier of 13 considering the age of the deceased, Rs.7,80,000/- could be arrived as future loss of dependency to the claimant and to such amount, if Rs.70,000/- on conventional heads as per the decision in the case of Pranay Sethi (supra) is added, the claimant- respondent No.1 could be held entitled for total compensation of Rs.8,50,000/-, to be recovered from the appellant with interest at the rate of 9% from the date of the claim petition till its realization. This amount of compensation since is less than the amount of compensation awarded by the Tribunal, the impugned judgment and award of the Tribunal shall be required to be modified by partly allowing the appeal and the Tribunal shall be required to be directed to refund the difference of amount, if the appellant has already deposited the total amount of compensation with proportionate amount of interest.

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C/FA/1207/2018 ORDER

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In the result, the appeal is partly allowed. The respondent No.1- the claimant is held entitled to Rs.8,50,000/- as compensation to be recovered from the appellant and the respondent Nos.2 and 3 jointly and severally with interest at the rate of 9% from the date of the claim petition till its realization. If the appellant has already deposited the full amount of compensation with the Tribunal, the Tribunal shall refund difference of amount, i.e. (Rs.11,14,617 – Rs.8,50,000) with proportionate interest to the appellant within a period of FOUR WEEKS from the date of receipt of this order. The judgment and award of the Tribunal shall stand modified to the above extent.

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Since the appeal is disposed, the Civil Application for stay shall not survive. Hence, disposed of accordingly.

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OMKAR

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Iffco Tokio General Insurance Company Ltd. v. Sukhiben @ Sukaliben Wd/O Bhalabhai Baria

Case brief

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Iffco Tokio General Insurance Company Ltd. v. Sukhiben @ Sukaliben Wd/O Bhalabhai Baria

Case brief

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