PATEL BHARATBHAI KANTILAL SANEPARA vs. KANTILAL NANDRAMBHAI DEVMURARI

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 rIN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 5083 of 2019 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/FIRST APPEAL NO. 5083 of 2019 With R/CROSS OBJECTION NO. 130 of 2021 In FIRST APPEAL NO. 5083 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.J.DESAI

and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? =============================================================== FUTURE GENERALALI INDIA INSURANCE CO LTD Versus NAINA DEVI WD/O SANTOSH SHIVYAGNA DUBE =============================================================== Appearance: MR GC MAZMUDAR(1193) for the Appellant(s) No. 1 MR HG MAZMUDAR(1194) for the Appellant(s) No. 1 for the Defendant(s) No. 8 NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5,6,7 SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 10,9 =============================================================== Page 1 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 14/07/2022

ORAL JUDGMENT (PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT) 1. Admit. Mr. Nishit Bhalodi, learned advocate waives service of notice of admission on behalf of respondents. 2. This appeal as well as cross-objections are filed challenging the judgment and award dated 28.11.2018 passed by the Motor Accident Claims Tribunal (Aux.) at Rajpipla in MACP No. 198 of 2014. Considering the issue involved and with the consent of parties, the appeal as well as the cross objections are taken up for final hearing. 3. The Insurance Company as appellant has filed this First Appeal No.5083 of 2019 challenging the judgment and award of the Tribunal on the ground of negligence. Cross objection No.130 of 2021 is filed challenging the judgment and award of the Tribunal dated 28.11.2018 seeking enhancement. Since the appeal and cross objections are arising out of the common judgment and award of the Tribunal dated 28.11.2018 of the same accident, they both are heard and decided together. 4. Facts in brief are: Page 2 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 4.1. Santoshbhai Shivyagna Dube on 10.7.2014 at around 10:45 p.m. was going from Ankleshwar to Valia Chokdi driving his Motorcycle No.GJ-05-AC-4089 along with Amitabh Ashok Sonar as pillion rider. It was case of the claimant that the Motorcycle was driven with moderate speed after following traffic rules. On that day, Dumper bearing registration No.GJ- 16-W-4639 was parked without any parking lights, signs or reflectors and on account of dark night, the driver of the motorcycle – Santoshbhai Shivyagna Dube could not see the dumper and the motorcycle dashed with the back portion of the dumper which resulted into accident. Out of said accident Santoshbhai Shivyagna Dube died on the spot and the pillion rider received serious injuries. The present appeal is filed by the legal heirs of deceased who were original claimants. It was further case of the original claimant that the accident occurred on account of sole negligence on the part of the driver of the dumper. It was further their case that the deceased was 38 years old at the time of accident and was doing job as Stenter Supervisor in Shree Balaji Processors Company at Ankleshwar GIDC and earning Rs.30,000/- p.m. Because of untimely death of the deceased, the claimant has filed Claim Petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.40,00,000/-. 5. Upon issuance of notice, the Insurance Company appeared and filed their written statement. In the written Page 3 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 statement filed, it was case of the Insurance Company that driver of the motorcycle was equally negligent for occurrence of the said accident. 5.1. It is recorded by the Tribunal that Opponent No.1 (driver of the dumper), opponent No.2 (owner of the dumper), opponent No.3 (pillion rider of motorcycle) though served, chosen not to appear before the Tribunal. It is also on record that name of opponent No.1 (driver of the dumper) was deleted from the Claim petition. The FIR dated 17.7.2014 was filed before Ankleshwar GIDC Police Station and the panchnama was drawn. The Tribunal after hearing the parties and upon perusal of the evidence on record decided the issue of negligence by holding driver of the dumper as sole negligent. In relation to the quantum, the Tribunal awarded total compensation of Rs.8,71,400/- under different heads as under: Rs.8,06,400 For Loss of Dependency Rs.25,000/- For loss of Estate Rs.25,000/- For loss of consortium Rs.15,000/- For funeral expenses Rs.8,71,400/- Total 6. Aggrieved by the said judgment and award dated 28.11.20218, First Appeal No.5083 of 2019 and Cross Objection No. 130 of 2021 are filed. Page 4 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 7. We have heard Mr. H.G.Mazmudar, learned advocate for the appellant – Insurance Company and Mr. Nishit Bhalodi, learned advocate for the original claimants (respondents herein). As liability has not been denied, presence of other respondents is dispensed with. 8. Record and Proceedings were called for and have perused the same. 9. It is the contention of learned advocate for the appellant – Insurance Company that the Tribunal has committed serious error in holding the driver of the dumper sole negligent for occurrence of the said accident. Referring to the FIR, he submitted that it is on record that dumper was stationary on the side of the road. The driver of the motorcycle is expected to drive the motorcycle with a reasonable speed so that it can see the stationed vehicle. Therefore, it can be easily presumed that the driver of the motorcycle was coming in speed and could not see the stationed vehicle and the accident occurred. The driver of motorcycle was thus equally negligent. He further contended that, from the panchnama, it can be seen that the impact of the motorcycle was so high that it can be easily inferred that the deceased was travelling at night with high speed and therefore he is also equally negligent for occurrence of the accident. He thus submitted that the Tribunal is in error in holding the driver of the dumper as sole Page 5 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 negligent for occurrence of the accident and therefore, fastening the liability solely on the Insurance Company of the dumper is erroneous. He thus, contended that the judgment and award being erroneous, this appeal is required to be allowed by equally (50%) holding the driver of the motorcycle as negligent. In support of his submission, he relied upon the decision of the Hon’ble Supreme Court in the case of Nishan Singh & Ors. vs. Oriental Insurance Co. Ltd. & Ors. reported in 2018 ACJ 1466, and submitted that the driver of the vehicle is required to keep safe distance by following the traffic rules. In this case, if the safe distance could have been maintained by the motorcycle, then dumper could have been seen by the deceased. 10. Per contra, Mr. Nishit Bhalodi, learned advocate for the original claimants submitted that the Tribunal is correct in holding the driver of the dumper sole negligent for the said accident. He submitted that from the panchnama, it is seen that the dumper was stationary on the road without any sign, signals or reflectors. It was dark night at 10:45 p.m. in the month of July and, therefore, it was very difficult for any person to visualize the stationary vehicle which is without any sign, signals or reflectors. Therefore, the Tribunal is correct in holding that the driver of the dumper was sole negligent as he has failed in observing traffic rules. Page 6 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 11. In relation to quantum, Mr. Bhalodi, learned advocate submitted that the Tribunal is in error in awarding total compensation of Rs.8,71,400/-. He contended that it is on record that the deceased was working as a Stenter Supervisor in Shree Balaji Processors Company at Ankleshwar GIDC and was earning Rs.30,000/- p.m. In support of his submission, he relied upon income tax returns for AY 2012-2013 at Exh.48, AY 2013-2014 at Exh.49 and AY 2014-15 at Exh.50 and submitted that the Tribunal ought to have considered the income of the deceased at Rs.30,000/- p.m. He further submitted that deceased was 38 years at the time of accident and therefore, 50% as future prospective income would be applicable. As he was survived by 6 dependents, deduction of 1/4th towards personal expenses would take place and multiplier of 15 would be applicable in view decision of the Hon’ble Apex Court in the case National Insurance Co. Ltd. vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 and Sarla Verma (Smt) & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121. In relation to consortium, he submitted that as the deceased was survived by 6 dependents, with 10% rise as observed by the Hon’ble Supreme Court in the case of Pranay Sethi & Ors. (supra), the claimant would be entitled to total consortium of Rs.2,64,000/-. In relation to 10% rise in consortium after three years, he relied upon the decision of Hon’ble Supreme Court in the case of N. Jayasree & Ors. vs. Cholamandalam MS General Insurance Co. Ltd. in Page 7 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 Civil Appeal No.6451 of 2021. Same 10% rise in the compensation for loss of estate and funeral expenses is claimed. He thus contended that the appeal of the Insurance Company being meritless may be rejected and cross objections be allowed. 12. Having heard learned advocates appearing for the parties and on perusal of the judgment and award passed by the Tribunal as well as the record and proceedings of the Tribunal, we are of the considered view that the following points would arise for our consideration. (i) Whether Tribunal was correct and justified in arriving at a conclusion that the driver of the dumper was sole negligent for the accident and therefore, the Insurance Company of the dumper is liable to pay the compensation? (ii) Whether compensation awarded by the Tribunal in sum of Rs.1,53,200/- is just and reasonable compensation and if not, to what extent it requires to be answered and under what heads claimants would be entitled for enhancement? (iii) What order? 13. The facts relating to the road accident that occurred on 10.7.2014 as well as issuance of policy of the offending vehicle having in force on date of accident not being in dispute and Page 8 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 these facts have been dealt with by the Tribunal extensively, they are not discussed to avoid repetition of facts. Point No.1 (Negligence) The Tribunal from the FIR lodged on 11.7.2014 has noted that the accident occurred on 10.7.2014 at around 10:45 p.m. It is also on record that pursuant to the FIR lodged before Ankleshwar GIDC Police Station, the investigation was carried out where the involvement of the dumper was not denied. It is not in dispute, that the dumper was parked at Valia Chokdi at night which road was open for the moving traffic. The dumper was parked without any parking lights, signs or any reflectors, due to which, the driver of the motorcycle could not see the stationary vehicle and that is how the accident occurred. The Tribunal has further noted that under the Motor Vehicles Act, no person in charge of the motor vehicle shall cause or allowed the vehicle or any dumper to remain on any side of the road in such a position or in such a condition or the circumstances as to cause or to be likely to cause danger, obstruction, undue inconvenience to other users on the road. In this case, it is clear that dumper was parked on the road without any sign, signals or reflectors and, therefore, the accident has occurred. In the decision of Hon’ble Supreme Court in the case of Nishan Singh & Ors. (supra) it is held that all the vehicle drivers are required to maintain safe distance Page 9 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 and to drive the vehicle with the moderate speed. However, in the facts of the present case, it is not in dispute that the dumper was parked on the side of the road which was free for traffic without any sign, signal or reflector, therefore the driver of the motorcycle could not see it in the dark night and dashed with the dumper. Therefore, in our opinion, the Tribunal is right in holding that the dumper of the driver was sole negligent for occurrence of the said accident. We do not find any error in the conclusion recorded by the Tribunal that the driver of the dumper was sole negligent for the said accident. In view of the above finding, we answer Point No.1 in affirmative against the appellant and in favour of the claimants by holding that the Tribunal was correct in holding that the driver of the dumper was sole negligent for occurrence of the said accident, and therefore appellant Insurance Company is liable for the payment of compensation. Point No.2 (Compensation) The Tribunal while assessing the income of the deceased has taken Rs.4,000/- p.m. As the deceased was 38 years of age at the time of accident, 50% of prospective income was taken into consideration and after deducting 1/5th of personal expenses, the Tribunal has calculated future prospective income of Rs.5,600/- p.m. The Tribunal thus calculated dependency loss at Rs.53,780/-. The Tribunal further awarded Rs.25,000/- Page 10 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 for loss of estate, Rs.25,000/- for loss of consortium and Rs.15,000/- funeral expenses. Thus in all the Tribunal awarded total compensation of Rs.8,71,400/-. 14. Upon re-appreciation of evidence, we have noticed that vide letter dated 2.11.2011 Shree Balaji Processors Company Ankleshwar GIDC has certified that deceased Santoshbhai Shivyagna Dube was working in their factory as Stenter Supervisor since last three years, however the salary certificate is not on record. The income tax return filed by the deceased in his individual capacity for Assessment Year 2012-2013 to Assessment Year 2014-2015 are on record. For AY 2012-2013, the deceased has shown net income of Rs.2,08,883/- [Rs.2,11,046 (income) - Rs.2,163 (tax)]. For AY 2013-2014 net income of Rs.2,41,357/- [Rs.2,46,109 (income) - Rs.4,752 (tax)]. For AY 2014-2015 net income of Rs.2,08,569 (income) - Nil (tax)]. The return for AY 2014-2015 was filed on 20.8.2014 which is subsequent to the date of accident therefore we deemed it appropriate not to consider the same. It is surprising that though Shree Balaji Processors Company Ankleshwar GIDC has issued certificate that he was working with their factory as Stenter supervisor since last three years nothing in relation to salary has been stated. However, the income tax returns being statutory documents and exhibited, we deem it appropriate to take into consideration the same. Therefore, taking note of the returns filed by the deceased the Page 11 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 income assessed by the Tribunal at Rs.4,000/-p.m. in our opinion is contrary to the evidence on record. However, we cannot ignore that the salary certificate is not on record. Therefore, in facts of present case, we deem it appropriate to assess income of the deceased safely at Rs.20,000/-p.m. As he was 38 years old at the time of accident, 50% would be appropriate towards future prospective income. As the deceased was survived by 5 dependents, 1/4th amount is to be deducted towards personal expenses, as the deceased was 38 years old multiplier of 15 would be applicable. Therefore, in our opinion claimant would be entitled for dependency loss as under: “Rs. 20,000 p.m. + Rs.10,000 (50% prospective income) = Rs.30,000 – Rs.75,00 (¼ personal expenses) = Rs.22,500 x 12 (p.a.) = Rs.2,70,000 x 15 (multiplier) = Rs.40,50,000/-”. 15. In relation to the contention raised for 10% rise in consortium and compensation for funeral expenses and loss of estate, the Hon’ble Supreme Court in the case of N. Jayasree & Ors. (supra) has held as under: “32. In Pranay Sethi, this Court has awarded a total sum of Rs.70,000/- (Rupees Seventy Thousand Only) under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held Page 12 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 that the said sum should be enhanced at the rate of 10% in every three years. It was held thus: 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000,

Rs.40,000

and

Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 33. The judgment in Pranay Sethi was rendered in the year 2017. Therefore, the claimants are entitled for 10% enhancement. Thus, a sum of Rs.16,500/- each is awarded towards loss of estate and funeral expenses. 34. A three-Judge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors12, after considering Pranay Sethi, has awarded spousal 12 (2020) SCC Online SC 410 : AIR 2020 SC 3076 25 consortium at the rate of Rs.40,000/- (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/- (Rupees forty thousand only). Page 13 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 The compensation under these heads also needs to be increased by 10%. Thus,the spousal consortium is awarded at Rs.44,000/- (Forty- four thousand only), and towards parental consortium at the rate of Rs.44,000/- each (Total Rs.88,000/-) is awarded to the two children.” 16. Applying the same principle, in our opinion as the deceased was survived by six dependents, he would be entitled for total consortium of Rs.2,64,000/-. Further, for loss of estate and funeral expenses Rs.16,500/- each would be appropriate. Thus the appellant would be entitled to total compensation as under:- Loss of dependency Rs.40,50,000/- Loss of Consortium Rs.2,64,000/- Loss of Estate Rs.16,500/- Funeral Expenses Rs.16,500/- Total Rs.43,47,000/- 17. In view of the above, we proceed to pass following order O R D E R (i) The appeal of Insurance Company is dismissed and the Cross Objection of the original claimants are partly allowed. Page 14 of 15

C/FA/5083/2019 JUDGMENT DATED: 14/07/2022 (ii) Thus, original claimants would be entitled to total compensation of Rs.43,47,000/-. As the Tribunal has awarded an amount of Rs.8,71,400/-, the respondent – Insurance Company shall deposit the balance amount of compensation of Rs.34,75,600/- (Rs.43,47,000 – Rs.8,71,400) with 6% interest p.a. from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. If the aforesaid amount is not deposited as directed herein above, appellants would be entitled for interest at the rate of 9% from the date of filing of the petition till its realization. (iii) The rest of the judgment and award passed by the learned Tribunal has remained unaltered. (iv) Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs. (A.J.DESAI, J) (MAUNA M. BHATT,J) NAIR SMITA V. Page 15 of 15