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Gujarat High Court
Judgename :J.M.Panchal, M.C.PATEL
UNITED INDIA INSURANCE COMOANY LIMITED - Appellant
Versus
JYOTSNABEN Wd/o.MADHUSUDAN SHANTILAL BHATT - Respondent
C.A. 1845 of 1990
Decided On : 11/27/1998
The payment of exgratia amount is not intended to compensate the dependents of the deceased. Ex-gratia payment cannot be obtained as of right. It is discretionary and is granted after consideration of several relevant factors. Ex-gratia payment is voluntary, uncovenanted as well as discretionary and cannot be enforced as of right and the only intention of making such payment is to alleviate distress of family members of the deceased.
[Para 10]
We note that ex-gratia payment was not made to the dependents of the deceased only because the deceased died in a motor accident. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimants by accidental injury or death and not other forms of deaths. The ex-gratia payment can be made if there is natural death or death by suicide, serious illness, including even death by accident through train, air flight not involving motor vehicle and such payment would not be covered under the Motor Vehicles Act.
[Para 11]
(b) Compensation - Quantum - Amount of Compensation awardable can not exceed the amount claimed in the claim petition - Babu Mansa vs. Ahmedabad Municipality Corporation & Ors., 19 GLR 492 & Bai Nanda, wd/o Bhoi Shana Kalyan & Ors. vs. Patel Shivabhai Shankerbhai & Ors., 7 GLR 662, followed.
The claimants cannot be awarded compensation more than the amount claimed in the claim petition and, therefore, the submission that compensation assessed by the Tribunal should be paid to the claimants will have to be rejected.
Court hold that the present claimants will not be entitled to more compensation than claimed, though the compensation found payable by the Tribunal is more than what was claimed in the claim petition.
[Para 16]
(c) Evidence - Burden of proof - It is the duty of party which is in possession of document to produce the said document - Such party should not be permitted to take shelter behind the abstract doctrine of burden of proof National Insurance Co. Ltd., New Delhi vs. Jugal Kishore & Ors., AIR 1988 SC 719 relied on.
It is the duty of party which is in possession of the document with would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of the State Government and the instrumentality of the State who are under an obligation to act fairly. In all cases, where Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. However, the State Government should also have produced the copy of policy to enable the Tribunal to do complete justice between the parties.
[Para 17]
(d) Motor Vehicle Act, 1939 - Sec. 95(2)(b)(1) - Liability of Insurance Company - Determination - Deceased was carried in the vehicle by reason or in pursuance of contract of employment - Insurance Company was liable to the extent of Rs. 50,000 in all.
In view of the provisions of Sec. 95 (2) (b) (1) liability of the Insurance Comapny would be Rs. 50,000/- in all because the vehicle was the vehicle in which the deceased was carried by reason or in pursuance of contract of employment. Therefore, the submission that the liability of the Insurance Company would be limited to the extent of Rs. 15,000/- also cannot be accepted. Under the circumstances, Court hold that the liability of the Insurance Company is Rs. 50,000/- in all and the Tribunal was not justified in holding that the Insurance Company is liable to satisfy the whole award passed against the driver of the jeep and the Director General of Police, Gujarat State.
[Para 19]
( 1 ) THESE appeals, which are filed under Sec. 110-D of the motor Vehicles Act, 1939, are directed against judgment and award dated 28/05/1990 rendered by the Motor Accident Claims Tribunal (Main), Himatnagar, District - Sabarkantha in M. A. C. P. No. 439 of 1987 and, therefore, we propose to dispose of them by this common judgment.
( 2 ) THE then Chief Minister of State of Gujarat, Mr. Amarsinh Chaudhary was to visit Bhiloda on 24/06/1987. Deceased Madhusudan Shantilal Bhatt, who was serving as a Police Inspector, was in piloting jeep bearing registration No. GAD- 5834. The piloting jeep was being driven by police constable Mavjibhai Hiraji, who was impleaded as opponent No. 1 in the claim petition. When the Chief Ministers motorcade was between Hunjh and Jagatpur, the piloting jeep in which the deceased was sitting, turned turtle, as a result of which the deceased suffered several serious injuries. As the deceased had received injuries, he was removed to Civil Hospital, himatnagar, but his condition deteriorated and therefore, he was shifted to Civil hospital, Ahmedabad for intensive treatment. In spite of all the efforts made by the medical personnel, the deceased expired on 28/06/1987 at Ahmedabad. According to the appellants of Civil Appeal No. 2565 of 1992, driver of the jeep was rash and negligent in driving the same, as a result of which the accident occurred and deceased died. Under the circumstances, they instituted M. A. C. Petition No. 439 of 1987 before Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar and claimed compensation of Rs. 3 lacs in all. The claim petition was instituted against the driver of the jeep. Director General of Police, Gujarat State and United india Insurance Co. Ltd. with which the jeep was insured.
( 3 ) THE Director General of police, Gujarat State contested the claim petition by filing written statement Exh. 22. In the written statement, it was claimed by the director General of Police that the jeep driver was never rash in driving the jeep and, therefore, claim petition was liable to be dismissed. It was also stressed therein that the driver of the jeep was driving the same at moderate speed, but accidentally the rear tyre of the jeep had burst, as a result of which it had turned turtle and, therefore, it being an act of God, the claimants were not entitled to receive any compensation.
( 4 ) UNITED India Insurance Co. Ltd. with which the jeep was insured, contested the claim petition by filing written statement Exh. 27. By filing the written statement the Insurance Company, inter alia, pleaded that the deceased had not died because of rash and negligent driving of the vehicle by its driver and, therefore, the claim petition was liable to be dismissed.
( 5 ) HAVING regard to the pleadings of parties, the Tribunal raised-necessary issues for determination at Exh. 29. After taking into consideration the evidence of the driver of the jeep as well as contents of the First Information Report which was lodged with reference to the accident In question and the panchnama of the place of occurance, the Tribunal held that the accident took place because of rashness and negligence on the part of the driver in driving the jeep. Thereafter, the Tribunal took into consideration the evidence led by the claimants regarding income of the deceased and deduced that the income of the deceased was Rs. 2,420. 00 per month at the time of accident. The Tribunal deducted a sum of Rs. 200. 00 from the monthly income of the deceased as expenses which would have been incurred by the deceased on himself and thus, the Tribunal held that the dependency benefit of rs. 2,220/- per month, i. e. , Rs. 26. 640. 00 per annum was available to the claimants. Having regard to the age of the deceased, the Tribunal was of the opinion that it would be proper to apply multiplier of 12 to the facts of the case and thus, under the head of loss of income, the Tribunal awarded a sum of Rs. 3,56,680. 00
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