ICICI LOMBARD GENERAL INSURANCE CO LTD Vs. DAYANAND GANGA PANDIT
LAWS(GJH)-2014-10-49
HIGH COURT OF GUJARAT
Decided on October 08,2014

ICICI LOMBARD GENERAL INSURANCE CO LTD Appellant
VERSUS
Dayanand Ganga Pandit Respondents

JUDGEMENT

M.R.SHAH, J. - (1.) FEELING aggrieved and dissatisfied with the impugned judgement and award dated 18/6/2014 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Bhavnagar passed in Motor Accident Claim Petition No.123 of 2011, by which the learned tribunal has partly allowed the said claim petition and awarded Rs.29,72,000/ - to the original claimants towards compensation for the death of the deceased holding the driver of the CBZ Motorcycle CBZ Motorcycle No.GJ -4 -BB -7898 contributory negligent to the extent of 85% and holding the deceased driver of the moped scooter contributory negligent to the extent of 15% only, appellant herein original opponent No.3 Insurance Company has preferred the present First Appeal.
(2.) FACTS leading to the present First Appeal in nutshell are as under : - 2.1. That on 8/12/2010 deceased Dayanand Ganga Pandit was coming towards his home driving his Moped scooter from Ambawadi Road and was going towards Yashvantrai Natyagruh and at that time between 1.0 PM and 1.30 PM original opponent No.1 driver of the CBZ Motorcycle came with excessive speed in rash and negligent manner and dashed with the moped being driven by the deceased and as a result of which the deceased sustained grievous injuries on his head and also sustained several bodily injuries and abrasion all over the body. That immediately after the incident, the deceased was taken to the hospital and he was admitted as an indoor patient for 28 days. However, ultimately he succumbed to the injuries and died after a period of 28 days. Therefore, the original claimants filed claim petition before the learned tribunal claiming Rs.31,08,252/ - towards compensation for the death of the deceased. 2.2. It was the case on behalf of the original claimants that the accident took place due to the sole negligence on the part of the original opponent No.1 driver of the CBZ Motorcycle No.GJ -4 -BB -7898. So far as quantum of amount of compensation is concerned, it was the case on behalf of the original claimants that deceased was aged 27 years and was hale and hearty; he was very clever in his study from the very beginning and having bright future; that he has completed graduation in science stream with First Class; and completed M.Sc. in Industrial Chemistry and; he was emerging as a Research Scientist; that the deceased had done course of Basic Fire Prevention and Fighting; that deceased was serving as a Research Associates in Lupin Bio Research and thereafter he was serving with Lambda Therapeutic Research. It was also the case on behalf of the claimants that the deceased then got better offer and he was serving with Macleods Pharmaceuticals Limited as a Research Scientist where the deceased was earning Rs.2,71,008/ - per annum by way of salary. Therefore it was requested to award the compensation as prayed for. 2.3. The claim petition was opposed by the original opponent Nos.1 and 2 driver and owner of the Motorcycle involved in the accident by filing common Written Statement at Ex.16. The original opponent No.3 appellant herein Insurance Company also opposed the claim petition by filing Written Statement at Ex.19. It was the case on behalf of the opponents that the deceased who was driving the moped, was sole negligent in driving the vehicle due to which the accident took place. 2.4. That the learned trial court framed the issues at Ex.29. To prove the negligence on the part of the opponent No.1, the claimants produced documentary evidences FIR Ex.32; Chargesheet filed against the opponent No.1 Ex.42; Panchnama of the place of incident Ex.33. At this stage, it is required to be noted that initially the opponents as such denied the involvement of CBZ motorcycle driven by the original opponent No.1. 2.5. That on appreciation of evidence, documentary as well as oral, the learned tribunal held that the CBZ Motorcycle No.GJ -4 -BB -7898 driven by the original opponent No.1 was involved in the accident and that opponent No.1 was contributory negligent to the extent of 85% and held the deceased contributory negligent to the extent of 15%. 2.6. That on appreciation of evidence and considering the age of the deceased at 27 years and income of the deceased at Rs.2,71,008/ - per annum, the learned tribunal has considered the income of the deceased at Rs.32,706/ - per month for the purpose of future economic loss and considering the fact that the deceased was unmarried, deducting 50% towards his personal expenditure as per the judgement of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, 2009 6 SCC 121, and thereafter applying multiplier of 17, the learned tribunal has held that the claimants shall be entitled to Rs.33,36,000/ - under the head of future loss of income, however, as the deceased was held 15% contributory negligent for the accident, the learned tribunal has deducted 15% of the amount, and has awarded in all Rs.29,72,000/ - under the different heads i.e. under the head of future economical loss; medical treatment expenditure; loss of consortium; loss of estate and Rs.8000/ - towards funeral expenses, with running interest at the rate of 9% per annum from the date of petition till realization. 2.7. Feeling aggrieved and dissatisfied with the aforesaid impugned judgement and awards passed by the learned tribunal, appellant herein original opponent No.3 Insurance Company has preferred the present First Appeal.
(3.) MR .Nikunt Raval, learned advocate appearing on behalf of the appellant Insurance Company has vehemently submitted that the learned tribunal has materially erred in holding the driver of the CBZ Motorcycle No.GJ -4 -BB -7898 - opponent No.1 contributory negligent to the extent of 85% and in holding the deceased contributory negligent to the extent of 15% only. 3.1. It is further submitted by Mr.Raval, learned advocate appearing on behalf of the appellant that the learned tribunal has materially erred in awarding future economical loss applying multiplier of 17 considering the age of the deceased. 3.2. It is submitted that in the facts and circumstances of the case and when the deceased was unmarried and the claimants are parents aged 60 years and 52 years, the learned tribunal ought to have awarded future economical loss considering the age of the claimants and not the age of the deceased. No other submissions have been made. By making above submissions it is requested to admit and allow the present appeal. Present appeal is opposed by Mr.B.T.Rao, learned advocate appearing on behalf of the original claimants. He has submitted that so far as the issue with respect to negligence is concerned, the learned tribunal, on appreciation of evidence has rightly held the deceased contributory negligence to the extent of 15% and the original opponent No.1 driver of the CBZ Motorcycle contributory negligent to the extent of 85%. It is submitted that as such the original opponents have denied involvement of motorcycle driven by the original opponent No.1 at all. However, on appreciation of evidence more particularly FIR, Chargesheet filed against the opponent No.1 and Panchnama of the place of incident, the learned tribunal has rightly held the issue with respect to contributory negligence. 4.1. It is further submitted by Mr.B.T. Rao, learned advocate appearing on behalf of the original claimants that now so far as the contention on behalf of the appellant that while awarding future economical loss and applying multiplier, the learned tribunal ought to have considered the age of the claimants (parents) and not the age of the deceased is concerned, it is submitted that as such the aforesaid issue is now not res -integra in view of the decision of the Division Bench of this Court in the case of New India Assurance Company Limited Versus Girdharlal Popatlal Barae, as well as recent decision of the learned Single Judge of this Court, the then Hon'ble the Chief Justice in the case of New India Assurance Company Limited Versus Kantilal Vadilal Kamdar and others, in First Appeal No.3848 of 2006 dated 23/9/2014. Making above submissions and relying upon above decisions, it is requested to dismiss the present appeal. ;


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