New India Insurance Co. Ltd. vs Ranjanben Narshibhai and Others

M.D. Shah, J.—First Appeal No. 1282 of 2006 is filed by original opponent No. 2 - the New India Assurance Company Ltd. and First Appeal No. 1449 of 2006 is filed by the original opponent No. 4--The United India Insurance Company Ltd. Both original opponents have challenged the judgment and award dated 03.01.2006 passed by the learned M.A.C.T. (Auxi.), Rajkot in M.A.C.P. No. 2169 of 1999. The claim petition was filed by the claimants for getting compensation. Claimants are legal heirs of deceased who was killed in accident which occurred on 19.10.1999. It is the case of the claimants that deceased was proceeding in truck No. GJ-12-T-6951 towards his native Rajkot by observing Nivedh ceremony. But when the said truck reached near Gangadar at that time one offending truck No. PB-29-9997 came in rash and negligent manner and dashed on the front portion of truck in which deceased was travelling. It is alleged that the accident occurred due to negligence of both the drivers of offending vehicles. The learned Tribunal after considering oral and documentary evidence by order dated 03.01.2006 partly allowed the claim petition of the original claimants. Against the said award, the appellant-original opponents have preferred this appeals.

It is submitted by Mr. Thakkar, learned advocate for the appellant-The New India Assurance Company Ltd. that learned Tribunal has not properly appreciated evidence on record. It is also admitted fact that deceased was travelling as gratuitous passenger in the truck and Tribunal has not considered the same and by that committed error in holding that as passengers were travelling with goods of Nivedh, they are not gratuitous passengers. It is also submitted that considering the age of the deceased suitable multiplier is not applied and by that exorbitant award is passed by the Tribunal. Therefore, it is requested to allow the appeal.

It is submitted by Mr. Majmudar, learned advocate for the appellant-The United India Insurance Company Ltd. that learned Tribunal has not properly appreciated evidence on record. It is also submitted that there is ample evidence which shows that truck No. GJ-12-T-6951 was sole negligent for the accident, inspite of that Tribunal has committed error in holding that driver of truck No. PB-29-9997 is 25% negligent for the accident. It is also submitted that Tribunal has committed error in deducting 1/8th towards personal expenses of the deceased instead of 1/5th. Therefore, it is requested to allow the appeal.

It is submitted by Mr. Paul, learned advocate for the respondents-original claimant 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.

Heard learned advocates for the respective parties. This Court has gone through the judgment and award dated 03.01.2006 passed by the learned Tribunal together with oral as well as documentary evidence on record.

It is not in dispute that in the accident, deceased died. This Court is in agreement with the submission of Mr. Thakkar, learned advocate that passengers were travelling as gratuitous passengers prima facie they were not travelling with goods. In opinion of this Court, Nivedh (used for religious ceremony) is not considered as goods as defined in section 2(13) of the M.V. Act. So far as point of negligence is concerned, in opinion of this Court, Tribunal has not committed any error. After discussing oral and documentary evidence on record, Tribunal has rightly come to the conclusion that it is a case of composite negligence and both the drivers are negligent for the accident. This Court has gone through the decision of Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, Tribunal has committed error in deducting 1/8th amount towards personal expenses of the deceased instead of 1/5. Considering the age of the deceased, Tribunal has committed error in applying 16 multiplier instead of 15. So far as income of the deceased is concerned, he was government servant and ample evidence is produced. Tribunal has also committed error in awarding Rs. 10,000/- under the head of funeral expenses. The same is enhanced to Rs. 25,000/-.

Considering the facts and circumstances and considering the income of the deceased, age of the deceased and considering the evidence on record and ratio laid down by the Hon''ble Supreme Court in Sarla Verma (supra), in opinion of this Court, it would be just and proper to award Rs. 10,03,475/- as compensation to the appellants-original claimants instead of Rs. 14,16,752/- awarded by the Tribunal. In view of above, the First Appeal No. 1382 of 2006 preferred by The New India Assurance Company Ltd. is partly allowed. It is held that New India Assurance Company Ltd. is not liable to pay compensation as deceased was travelling as gratuitous passenger. First Appeal No. 1449 of 2006 preferred by the United India Insurance Company Ltd. is dismissed. This Court is not disturbing the findings regarding point of negligence as it is held by the Tribunal that it is a case of composite negligence. It is further held that original claimants are entitled to get compensation of Rs. 10,03,475/- with 9% interest per annum on the compensation from the date of filing of the claim petition instead of Rs. 14,16,752/- awarded by the Tribunal. Judgment and award dated 03.01.2006 passed by the learned M.A.C.T.(Auxi.), Rajkot in M.A.C.P. No. 2169 of 1999 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 and lying with the bank in fixed deposit will be refunded to the present appellant-insurance company with interest.