ORIENTAL INSURANCE COMPANY LIMITED Vs. RAMAN PURSHOTHAMAN NAIR

JUDGEMENT

(1.) The present First Appeal is preferred by the Oriental Insurance Company Ltd. under Sec. 173 of the Motor Vehicles Act, 1988 , by being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claims Petition No.1597 of 1998, Vadodara dtd. 27/6/2015, by which the Tribunal has awarded the amount of compensation Rs.5,38,468.00 with 9% interest p.a. from the date of the claim petition to the claimants by holding the Opponent Nos.1, 2 and 3 jointly and severely liable and against the Opponent Nos. 4 and 5, the claim is rejected. Therefore, the present appeal is preferred by the Insurance Company.

(2.) The brief facts of the case are as such that, on 4/2/1998, the Deceased-Raman Sundaresan Pillai was one of the occupants in the Jeep bearing registration No. GJ-16- C-4202 proceeding towards Rajpipla from GSL (India) Limited, from its work and registered office at Amletha village, Taluka Rajpipla, and the driver of the said Jeep was driving the Jeep at a moderate speed and on the correct side of the road to Rajpipla and when, they had reached near Taropa village bus stand board, the Opponent No.1 had come from the opposite direction by driving the truck bearing registration No.GJ-3-U-5020 in rash and negligent manner and also in excessive speed which resulted into the accident as the Opponent No.1 has lost his control over the steering of the truck. Therefore, the truck rushed on the wrong side of the road and dashed against the right front portion of the Jeep. Therefore, the Jeep was turned turtle resultantly, the Deceased-Raman sustained serious injuries and ultimately succumbed to the injuries. Therefore, legal representatives of the deceased has filed the claim petition to get compensation. F.I.R is filed against the Opponent No.1 and charge-sheet is also filed against the Opponent No.1 before the concerned Court. The Deceased -Raman was aged about 30 years at the time of accident and he was serving as a Steno cum typist with GSL (India) Ltd. Amletha, Taluka Rajpipla and he was paid a monthly salary of Rs.3200.00 plus HRA at the rate of 20%, PF at the rate of 10% of basic salary, LTA at the rate of 4% of the basic salary, medical allowance at the rate of 5% of the basic salary and he was also entitled to bonus at the rate of 8.33% of basic salary. Therefore, it is averred by the claimants in the petition that his salary can be considered at least Rs.3,500.00 p.m. and his annual income would be Rs.63,515.00 and the prospective annual income could be easily assessed to the tune of Rs.90,000.00 p.a. Therefore, the claim petition is filed to get compensation of Rs.6,00,000.00.

(3.) Learned advocate Mr. Rathin P. Raval for the Appellant-Insurance Company has contended that the present appeal is filed mainly on the ground of aspect that the claimants are not dependents of the deceased. He has submitted that examination-in- chief of one of the claimants, which is carried out at Exh.14 and in the cross-examination, the claimant has admitted that he is not dependent. Therefore, though they can be considered as legal representative, the claimants are not entitled to get the compensation as dependent. He has further submitted that, therefore, only on this count, his appeal is required to be allowed. He has relied upon the judgment rendered in the First Appeal No.2188 of 2002 dtd. 22/1/2016, more particularly, Paras 10 and 32 of that judgment. He has submitted that the claimants in the present case cannot be considered as dependent. Therefore, the claim petition is required to be dismissed on that ground only. He has further relied upon the judgment of Hon'ble Supreme Court in Civil Appeal No.3397 of 2012 dtd. 4/4/2012, by indicating that the Hon'ble Supreme Court has considered the aspect of personal and living expenses of the deceased in that judgment. Accordingly, that judgment is required to be considered by this Court. He has also relied on the judgment of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, reported in (2009) 6 SCC 121, by indicating that by this judgment, the mode of calculation of dependency loss is fixed, which is now followed by many Courts. Therefore, he has submitted that the Tribunal has committed gross error in considering the deduction in the personal expenses. He has also submitted that sisters and brothers would not be considered as dependent in view of the above mentioned judgment. Mr. Raval has also submitted that by relying on the judgment reported in 2015 2 GLH 715 by contending that on the negligence aspect, the Tribunal has committed error by holding truck as solely negligent as accident had occurred on the middle of the road. Therefore, this Court in that judgment has considered negligence to the extent of 80% of the truck driver and to the extent of 20% of the car driver. Therefore, he has submitted that in the present case also, looking to the panchanama and F.I.R., some part of negligence should be awarded to the driver of the Jeep also. He has also relied upon one more judgment in support of his contention that the brothers could not be said to be dependent on the earning of the deceased by relying on the judgment of the Hon'ble Apex Court in the case of Gyan Chand v. Gulab Singh. reported in 2016 (16) SCC 590