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National Insurance Co. Ltd. v/s Manjulaben Jayantibhai Usadadiya


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

    First Appeal No. 4922 of 2019

    Decided On, 18 February 2020

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MS. JUSTICE HARSHA DEVANI & THE HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

    For the Appearing Parties: Lilu K Bhaya, Karna H. Dhomse, Advocates.



Judgment Text


Harsha Devani, J.

1. By this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), the appellant insurance company has challenged the judgment and award dated 30.11.2018 passed by the Motor Accident Claims Tribunal (Main), Surat (hereinafter referred to as "the Claims Tribunal") in M.A.C. Petition No.531 of 2014, whereby it has partly allowed the claim petition and awarded compensation of Rs.23,69,400/- along with interest at the rate of 9% per annum from the date of claim petition till realisation, to the respondents No.1 to 6 (original claimants).

2. The facts stated briefly are that, the respondents No.1 to 6 (original claimants) filed a claim petition under section 166 of the Act against the appellant and the respondents No.7 and 8 claiming compensation of Rs.28,00,000/- on account of the death of Jayantibhai Usadadiya, who passed away in an accident between his motor-cycle No.GJ-5-FD-1979 and Ashok Leyland Highway Dumper No.GJ-21-V-971. The Claims Tribunal, after considering the oral as well as documentary evidence adduced by the parties, held that the driver of dumper No. GJ-21-V-971 was rash and negligent in driving the dumper and was solely responsible for causing the accident in question. To the extent, the said issue has been decided in favour of the claimants, the same has not been challenged in the appeal.

3. The Claims Tribunal has calculated the average yearly income of the deceased at Rs.1,88,663/- per annum. It has thereafter, held that the deceased had six dependents at the time of the accident and, therefore, in terms of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 , one-fourth of the amount, that is, Rs.58,957/- is required to be deducted towards personal and living expenses of the deceased and after deducting the said amount, the dependency comes to Rs.1,76,872/-. Applying a multiplier of 13, the Claims Tribunal has come to the conclusion that the loss of dependency would come to Rs.22,99,336/-. To the extent, the Claims Tribunal has considered that the deceased had six dependents, the appellant is aggrieved.

4. Ms. Lilu Bhaya, learned advocate for the appellant invited the attention of the court to the cause-title of the award of the Claims Tribunal, to point out that the occupation of claimant No.2 Alpesh Jayantibhai Usadadiya and claimant No.3 Gulabben Jayantibhai Usadadiya is shown to be business. The attention of the court was invited to the cross-examination of the claimant No.2 Alpesh Jayantibhai Usadadiya, to point out that he has admitted that at the time of the accident, he was serving. It was pointed out that he has further admitted that his grandfather and grandmother were alive and were residing with his uncle in the village. He has also admitted that in the claim petition his as well as his sister's occupation is shown to be business. It was submitted that, therefore, claimants No.2 and 3 were not dependent upon the deceased. It was also submitted that claimants No.5 and 6, who are the parents of the deceased, were not dependents of the deceased, inasmuch as, they were residing with the brother of the deceased. Therefore, the Tribunal was not justified in holding that there were six dependents and deducting only one-fourth towards the personal and living expenses of the deceased.

4.1 In support of her submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 3 GLH 536 . In the facts of the said case the deceased was a bachelor and the claimants were the parents, the court held that the deduction follows different principles. The court observed that in regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also a possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. The court held that in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Ms. Bhaya accordingly submitted that in view of the principles laid down in the above decision of the Supreme Court, it was for the claimants to adduce evidence to establish that they were dependents on the deceased, in absence of which they could not have been considered as dependents by the Claims Tribunal. It was accordingly urged that the appeal requires consideration.

5. This court has also heard Mr. Karna Dhomse, learned advocate for Mr. Hiren Modi, learned advocate for the respondents, who submitted that the impugned order of the Tribunal is just, legal and proper and does not warrant interference.

6. In the aforesaid backdrop, the following points arise for determination:

(i) Whether the Claims Tribunal was justified in holding that the deceased Jayantibhai Usadadiya had six dependents?

(ii) If the above point is answered in the affirmative, what consequential order is required to be passed?

7. While it is true that in the cause-title of the claim petition, the occupation of applicant No.3 Gulabben Jayantibhai Usadadiya has been shown to be business, in the cross-examination of the claimant No.2, it has been brought out that the said claimant was doing household work and that she was not carrying on any business. Moreover, a perusal of the cause-title of the claim petition indicates that claimant No.3 Gulabben was only 21 years of age at the relevant time. Under the circumstances, merely because in the cause-title her occupation is shown to be business, it cannot be said that she was not dependent on the deceased who was her father.

8. Insofar as claimants No.5 and 6 are concerned, they are aged 68 years and 70 years respectively. The deceased was their son. On behalf of the appellant it has been contended that in the cross-examination of the claimant No.2 it has been brought out that claimants No.5 and 6 were residing with his uncle in their village; however, there is nothing on record to indicate that claimants No.5 and 6 at the relevant time were not residing with the deceased. Moreover, it is quite possible at times that when there are two brothers, the parents may reside with the brother residing in the village, however, the brother living in the city may be financially supporting them. Considering the age of the claimants No.5 and 6, it cannot be said that they were not dependent on the deceased merely because they have another son. Under the circumstances, the contention raised on behalf of the appellant to the extent the same relates to claimants No.3, 5 and 6 is concerned, does not merit acceptance.

9. Insofar as the decision of the Supreme Court in Pranay Sethi (supra) is concerned, the principles laid down in the paragraph referred to by the learned advocate for the appellant relate to deduction in case of a bachelor where the claimants are parents and brothers and sisters; whereas in the present case, the deceased is a middle aged married man and the claimants are his sons and daughter and his aged parents. In the opinion of this court, the principles applicable for deduction in case of a bachelor would not be applicable to the case of a middle aged married man, inasmuch as ordinarily a bachelor would be young and hence, the likelihood of his father being dependent on him would be less and hence, the father is required to prove that he is dependent upon his son. Insofar as brothers and sisters of a bachelor are concerned, if at all they are dependent, they would normally be dependent on their father, if he is alive, and not on their brother and therefore, they too are required to prove that they are dependent on their brother. However, in a case where the deceased is a middle-aged married man with children, and whose parents are also alive, his unemployed children and his aged parents would normally be dependent on him, and hence, in the absence of any evidence to the contrary they would be considered to be dependents of the deceased. Reliance placed on the above decision is, therefore, misconceived.

10. As discussed earlier, in the facts of the present case, the claimant No.3 is an unmarried daughter who was 21 years of age at the time of the incident, and there is no evidence to show that she was gainfully employed anywhere. The mere fact that in the cause title of the claim petition, the occupation of the claimant No.3 is shown to be business, would not establish that she was not dependent on the deceased. Insofar as the parents of the deceased are concerned, they are both aged. The mere fact that at the time when the deposition of the claimant No.2 was recorded, they were residing with their other son in the village, does not establish that they were not residing with the deceased at the time of the accident or that they were not dependent on him. It is quite possible that at the time of the accident they may have been residing with the deceased, inasmuch as, in the cause-title of the claim petition, they are shown to be residing at the address of the deceased. Therefore, in all probabilities, after the death of their son, they may have gone to the village to reside with their other son. Therefore, it cannot be said that t

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hey were not dependent on the deceased. 11. Thus, out of the six dependents, at best the appellant can claim that claimant No.2 was not dependent on the deceased. If that be so the deceased can be said to have five dependents. In terms of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 , where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one third where the number of dependent family members is two to three, one-fourth where the number of dependent family members is four to six, and one-fifth where the number of dependent family members exceeds six. Therefore, even if the number of dependents is considered to be five instead of six, the deduction towards personal and living expenses of the deceased would still be one-fourth. Under the circumstances, no useful purpose would be served in interfering with the judgment and award passed by the Claims Tribunal. 12. In the light of the above discussion, the appeal fails and is summarily dismissed.
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