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Parvatbhai Tofanbhai Gavava & 3 Defendants

High Court Of Gujarat|18 September, 2013
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 284 of 2008 With FIRST APPEAL NO. 285 of 2008 TO FIRST APPEAL NO. 286 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.D. SHAH =============================================
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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================= NATIONAL INSURANCE CO.LTD Appellant(s) Versus PARVATBHAI TOFANBHAI GAVAVA & 3 Defendant(s) ============================================= Appearance:
MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1 MR ARPIT A KAPADIA, ADVOCATE for the Defendant(s) No. 1 RULE NOT RECD BACK for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 3 ­ 4 ============================================= CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 18/09/2013 ORAL JUDGMENT
[1] By this first appeals, the appellant herein – original opponent no.2 has challenged the judgment and award dated 10.08.2005 passed by the learned M.A.C.T. (Auxi.), Fast Track Court No.1, Dahod in M.A.C.P. No.1545 of 2004, M.A.C.P.No.1546 of 2004 and M.A.C.P.No.1547 of 2004.
[2] Claim petition was filed by the claimants on account of accident which took place on 18.05.1996 at Village Dungari on Limdi Limkheda Highway road. Complainant and his friend were travelleing from Surat to Banswada luxury bus to reach their village. There were other passengers in the bus and when the bus reached near Dungari Village, the driver of the luxury bus had driven the bus in rash and negligent manner and thereby dashed with the truck and as a result accident took place. Therefore, claimants filed claim petition for getting compensation from the all the original respondents. After recording evidence, learned Tribunal by judgment dated 10.08.2005 partly allowed the claim petition and awarded compensation of Rs48,000/­ in favour of the original claimant of M.A.C.P.No.1545 of 2004, Rs.5,71,416/­ in favour of the original claimant of M.A.C.P.No.1546 of 2004 and Rs.5,26,100/­ in favour of the original claimant of M.A.C.P.No.1547 of 2004. Against the said award, original opponent no.2 – insurance has preferred this appeal.
[3] It is submitted by learned advocate for the appellant herein
– Insurance Company that so far as M.A.C.P.No.1545 of 2004 is concerned Tribunal has not properly considered and appreciated the evidence on record. It is also submitted that Tribunal has erred in awarding Rs.30,000/­ to the original claimant towards mental pain shock and suffering. It is also submitted that Tribunal has erred in awarding Rs.10,000/­ to the claimants towards actual loss of income. Therefore, it is requested to allow first appeal.
[3.1] It is submitted by learned advocate for the appellant herein
– Insurance Company that so far as M.A.C.P.No.1546 of 2004 is concerned Tribunal has not properly considered and appreciated the evidence on record. It is also submitted that Tribunal has erred in awarding Rs.5,46,048 towards loss of dependency. It is also submitted that Tribunal has erred in adopting multiplier of 17. Therefore, it is requested to allow first appeal.
[3.2] It is submitted by learned advocate for the appellant herein
– Insurance Company that so far as M.A.C.P.No.1547 of 2004 is concerned Tribunal has not properly considered and appreciated the evidence on record. It is also submitted that Tribunal has erred in awarding Rs.4,80,000/­ towards future loss of income. It is also submitted that Tribunal has erred in awarding Rs.50,000/­ towards loss of better benefits of marriage. It is also submitted that Tribunal has erred in considering the income of the deceased at Rs.3000/­ per month though there is no evidence produced by the original claimant. Therefore, it is requested to allow first appeal.
[4] It is submitted by learned advocate for the respondent – original claimants that award passed by the Tribunal is just and proper and not required to be interfered by this Court and so it is requested to dismiss the appeals.
[5] This Court has gone through the judgment and award dated 10.08.2005 passed by the learned Tribunal together with oral as well as documentary evidence on record.
[6] It is not in dispute that in the accident, some got injured and some died. So far as M.A.C.P.No.1545 of 2004 (First Appeal No.284 of 2008) is concerned considering the injury received by the injured person, in opinion of this Court, Tribunal has awarded Rs.30,000/­ at higher rate under the head of pain, shock and suffering. This Court has gone through the decision of Hon’ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SSC 121.
[6.1] Considering the age of the claimant and considering the evidence on record and income of the deceased and ratio laid down by the Hon’ble Supreme Court in the case of Sarla Verma (supra), in opinion of this Court, original claimants of M.A.C.P.No.1545 of 2004 are entitled to get Rs.15,000/­ under the head of pain, shock and suffering and in all the claimants are entitled to get Rs.33,000/­ as compensation under all heads instead of Rs.48,000/­ awarded by the Tribunal.
[7] So far as M.A.C.P.No.1546 of 2004 (First Appeal No.285 of 2008) is concerned, considering the age of the deceased 35 years, proper multiplier should be 15 and Tribunal has applied 17 multiplier by that committed error. Considering the evidence on record and income of the deceased and ratio laid down by the Hon’ble Supreme Court in the case of Sarla Verma (supra), in opinion of this Court, original claimants of M.A.C.P.No.1546 of 2004 are entitled to get Rs.4,90,000/­ under the all heads as compensation instead of Rs.5,71,416/­ awarded by the Tribunal.
[8] So far as M.A.C.P.No.1547 of 2004 (First Appeal No.286 of 2008) is concerned, considering the age of the minor and considering disability certificate issued by the Doctor and other relevant factors and nature of injury and considering ratio laid down by the Hon’ble Supreme Court in the case of Sarla Verma (supra), in opinion of this Court, original claimants of M.A.C.P.No.1547 of 2004 are entitled to get Rs.3,00,000/­ as compensation under the all heads instead of Rs.5,26,100/­ awarded by the Tribunal.
[9] In view of above, the first appeals are partly allowed. The original claimants of M.A.C.P.No.1545 of 2004 (First Appeal No.284 of 2008) are entitled to get compensation of Rs.33,000/­ with interest @ 9% per annum on the said amount as compensation under all heads instead of Rs.48,000/­ awarded by the Tribunal. The original claimants of M.A.C.P.No.1546 of 2004 (First Appeal No.285 of 2008) are entitled to get Rs.4,90,000/­ with interest @ 9% per annum on the said amount as compensation under the all heads instead of Rs.5,71,416/­ awarded by the Tribunal. The original claimants of M.A.C.P.No.1547 of 2004 (First Appeal No.286 of 2008) are entitled to get Rs.3,00,000/­ with interest @ 9% per annum on the said amount as compensation under all heads instead of Rs.5,26,100/­ awarded by the Tribunal. Judgment and award dated 10.08.2005 passed by the learned M.A.C.T. (Auxi.), Fast Track Court No.1, Dahod in M.A.C.P. No.1545 of 2004, M.A.C.P.No.1546 of 2004 and M.A.C.P.No.1547 of 2004 is modified to the aforesaid extent. The remaining part of the judgment and award would remain unaltered. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith. The excess amount deposited by the insurance company in pursuance of the order passed by this Court and lying with the bank in fixed deposit will be refunded to the present appellant­insurance company with interest.
(M.D.SHAH, J.)
satish
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