Dismissed

New India Insurance Co. Ltd. v. Devrajbhai Kalabhai Godhani

Gujarat HC4 Jul 2018FA/2252/2014

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal. Upholding the Tribunal's finding of bus driver negligence, the court affirmed the compensation amount. It corrected the methodology for personal expenditure deduction but held the net award nearly identical to the Tribunal's award, dismissing the appeal.

What did the court decide?

First Appeal dismissed; Claim allowed as per Tribunal's calculation.

New India Insurance Co. Ltd. Vs Devrajbhai Kalabhai Godhani — Insurance | Gujarat HC (2018)

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C/FA/2252/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 2252 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE AKIL KURESHI

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and HONOURABLE MR.JUSTICE B.N. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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NEW INDIA INSURANCE CO. LTD

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Versus

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DEVRAJBHAI KALABHAI GODHANI

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

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Appearance:

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MR GC MAZMUDAR(1193) for the PETITIONER(s) No. 1,2 MR HG MAZMUDAR(1194) for the PETITIONER(s) No. 1,2 MR.HIREN M MODI(3732) for the RESPONDENT(s) No. 1,2,3 RULE SERVED(64) for the RESPONDENT(s) No. 5,6,7,8

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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI

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and

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HONOURABLE MR.JUSTICE B.N. KARIA

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Date : 04/07/2018

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ORAL JUDGMENT

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(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

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Page 1 of 10

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C/FA/2252/2014 JUDGMENT

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1.This appeal is filed by the insurance company
challenging the judgment and award passed by the
Motor Accident Claims Tribunal, Bhavnagar, dated
20.02.2014 in MACP No.897 of 2005.

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2.Facts are as under.

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3.One Bharatbhai Godhani aged about 26 years was
traveling on his motorcycle along with a pillion
rider who was his friend, on 31.10.2005. While they
were crossing a bridge on Bhavnagar-Tarapur highway
at about 2'O clock, the vehicle met with an accident
with an incoming luxury bus. The driver of the
motorcycle died. The pillion rider received bodily
injuries. Bharatbhai was married but had no children.
His wife remarried after his death and did not claim
any compensation. His parents, one elder brother and
grandfather (who died during the pendency of the
claim petition and was deleted), filed the Claim
Petition seeking compensation of Rs.32,80,000/- from
the driver, owner and the insurer of the luxury bus.

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4.The Claims Tribunal held that the accident
occurred due to the sole negligence of the bus
driver. The Tribunal assessed the income of the

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Page 2 of 10

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C/FA/2252/2014 JUDGMENT

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deceased at Rs.9,000/- per month, deducted 1/3rd for
the personal expenditure of the deceased and applied
a multiplier of 17. The Tribunal thereafter added
compensation under the conventional heads to award a

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total compensation of Rs.13,21,000/- to the
claimants. This award the insurance company of the
luxury bus has challenged in the appeal.

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5.Learned counsel for the insurance company
pressed the appeal mainly on following grounds:

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I. The involvement of the luxury bus in the

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accident was not established. At any rate, 100%
negligence of the bus driver was wrongly
believed by the Tribunal.

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II. The claimants were parents, elder brother and

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grandfather of the deceased. Brother cannot be
stated to be his dependent. The Tribunal
committed an error in deducting 1/3rd of the
income for the personal expenditure of the
deceased.

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III.Assessment of income of Rs.9,000/- per month was
not correct. There was no evidence to establish
such income.

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Page 3 of 10

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C/FA/2252/2014 JUDGMENT

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6.On the other hand, learned counsel Shri Modi for

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the claimants opposed the appeal contending;

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I. The negligence of the bus driver was established through evidence on record.

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II.Income of the deceased was proved through
leading reliable evidence.

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III. The Tribunal did not grant any future rise in income though the deceased was young man aged about 26 years.

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7.We may first address the question of involvement
of luxury bus in the accident and the level of
culpability of the driver of the bus in causing such
accident. In this respect, the claimants had
examined the pillion rider Alpesh Godhani at Exh.55.
He deposed that when he was traveling on the
motorcycle which the deceased was driving, at about
2'O clock in the afternoon on the bridge a luxury bus

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came from the opposite direction. It was being
driven at an excessive speed and negligently. It was

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because of this, that the motorcycle collided with
the bus resulting into head injuries to Bharatbhai,

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Page 4 of 10

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C/FA/2252/2014 JUDGMENT

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due to which, he died on the same day. He himself
received injuries and had to take treatment in the
hospital. This witness was also the first informant.
FIR was produced on record in which also he had
attached substantial blame for causing the accident
on the driver of the luxury bus. Upon investigation,
charge-sheet was also filed against the bus driver.
The witness was cross-examined but nothing
substantial has come out on record.

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8.As against this, the insurance company would
rely on the deposition of the bus driver Yunus Sipai,
Exh.81. He deposed that at the place of incident he
was traveling in an empty bus since there were no
passengers. He was not aware if the motorcycle in
any manner has collided with his vehicle. He came to
know about the accident only later on. In the cross-
examination, he was confronted with his written
statement in which apparently he had admitted the
accident. He agreed that he had engaged an advocate
who had prepared the reply as per his instructions.

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9.From the evidence on record thus, it emerges
that there was clear and reliable evidence of an

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Page 5 of 10

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C/FA/2252/2014 JUDGMENT

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eyewitness, the pillion rider himself would depose
before the Court in which manner the accident took
place. The driver of the bus simply claimed
ignorance about the accident. He however, admitted
that his bus did pass the area where the accident had
taken place around the time the accident was reported
to have occurred. His written statement was filed by
his advocate in which, he had admitted the factum of
accident. Combined effect of this evidence would be
that we have no hesitation in accepting the finding
of the Claims Tribunal that the bus driver was solely
negligent in causing the accident.

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10.Coming to the computation of compensation, the
claimants had brought on record that deceased was
B.Sc. (Botany) with DMLT degree. He was a partner in

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a pathological laboratory. The partner of the
laboratory one Asmita Balar was examined at Exh.62/A.
She herself was B.Sc.(Micro) and DMLT degree holder.
She stated that she and Bharat had started this
laboratory about three years back. They would share
the profit in 50% each. They had maintained notebooks
and diaries which contained details of the medical

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investigations carried out. Such notebooks and

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Page 6 of 10

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C/FA/2252/2014 JUDGMENT

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diaries were produced before the Court. They were
written in the handwriting of the deceased which was
duly identified by this witness. She further stated
that initially from the business, each partner would
earn about Rs.5,000/- to Rs.7,000/- per month, which
later on, increase to Rs.15,000/- to Rs.17,000/- per
month each. She also produced a visiting card of
Bharatbhai and a letter pad carrying her and
Bharatbhai's name.

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11.From such evidence on record, it can be seen
that the deceased was qualified with a degree of
B.Sc. in Botany. He had partnered with another
person having the qualifications of B.Sc.(Micro).
They were running a pathological laboratory on equal
profit sharing basis. Even if therefore the claim of
the witness that their individual income was
Rs.15,000/- to Rs.17,000/- was excessive, the
Tribunal having scaled down the income estimate to
Rs.9,000/- per month, we see no reason for further
reduction.

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12.Counsel for the claimants is correct in pointing
out that the Claims Tribunal did not provide future

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Page 7 of 10

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C/FA/2252/2014 JUDGMENT

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rise in income looking to the age and the occupation
of the deceased. Such rise would be 40% as provided
by the Supreme Court in case of National Insurance
Company Ltd. v. Pranay Sethi and Ors. reported in
2017 (3) GLR 536. At the same time, in our opinion,
the Tribunal committed an error in deducting only
1/3rd for the personal expenditure of the deceased.
It is by now well settled that if the deceased is
unmarried and claimants are parents, 50% of the
prospective income of the deceased should be set
apart for his personal expenditure. This principle
is premised on two considerations. One, that being
an unmarried person, the deceased would be likely to
spend larger share of his income on himself and
secondly that if the deceased is young person, there
would be a distinct possibility of him getting
married in future which would considerably reduce his
contribution for his parents.

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13.We are conscious that in the present case,
deceased was married. However, the logic discussed
above would apply in the present case also. This is

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so because wife of the deceased did not claim
compensation since she had already remarried. If the

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Page 8 of 10

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C/FA/2252/2014 JUDGMENT

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widow of the deceased was one of the claimants,
entire consideration would be different. When before
us therefore only the parents of the deceased are the
claimants (the elder brother not being a dependent,
shall have to be discarded from consideration), one
half (½) of the income would have to be set apart for
the expenditure of the deceased.

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14.The compensation to be awarded to the claimants
is worked out thus. Current income of the deceased
is taken at Rs.9,000/- p.m. Future rise of income by
40% would bring the prospective income to
Rs.12,600/-. Setting apart 50% for his personal
expenditure would leave Rs.6,300/- for dependency
benefit or Rs.75,600/- per annum. Adopting
multiplier of 17, the loss of dependency benefit
would to Rs.12,85,200/-.

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15.Hence, the total compensation is worked out as
under.

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Loss of dependency benefits: Rs.12,85,200/-
Conventional heads: Rs.40,000/-
 Rs. 13,25,200/-

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16.This amount is very close to what the Tribunal

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Page 9 of 10

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C/FA/2252/2014 JUDGMENT

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has already granted. We therefore do not propose any
modification. First Appeal is dismissed. R & P to

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be transmitted back to the trial Court.

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(AKIL KURESHI, J)

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(B.N. KARIA, J)

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ANKIT SHAH

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Page 10 of 10

New India Insurance Co. Ltd. v. Devrajbhai Kalabhai Godhani

Case brief

What is this about?

What did the court decide?

New India Insurance Co. Ltd. v. Devrajbhai Kalabhai Godhani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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