Mahinaben Babubhai Prajapati vs Mohmad Idrish Abdulhamid Pathan

                                                                                           NEUTRAL CITATION




     C/FA/1453/2008                                       JUDGMENT DATED: 04/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1453 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO                    Sd/-

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 1     Whether Reporters of Local Papers may be allowed to see the                Yes
       judgment ?

 2     To be referred to the Reporter or not ?                                     No

 3     Whether their Lordships wish to see the fair copy of the judgment ?         No

 4     Whether this case involves a substantial question of law as to the          No
       interpretation of the Constitution of India or any order made
       thereunder ?


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              MAHINABEN BABUBHAI PRAJAPATI & 4 other(s)
                              Versus
             MOHMAD IDRISH ABDULHAMID PATHAN & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
MR MITESH L RANGRAS(3324) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                  Date : 04/08/2023

                                 ORAL JUDGMENT

1. This appeal has been filed by the appellants - original claimants against the respondents - original opponents under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) against the judgment and award passed by the learned Motor Accident Claims Tribunal Page 1 of 7 Downloaded on : Sun Sep 17 00:16:28 IST 2023 NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined (Auxi.)Vadodara in MACP No. 867 of 1991 on 25.06.2007. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.

2. The brief facts that emerge from the record of the case are as under:

2.1. That on 27.02.1991 at about 5.30pm, Babubhai Jerambhai Prajapati was driving Jeep bearing registration No.GBW-650 and was returning his home by driving the said jeep in a slow and moderate speed on the correct side of the road on Fertilizer Bye-pass leading to Golden Tobacco Crossing and when he reached near Chhayapuri Godhra Railway Line Crossing on National Highway No.8, at that time, the opponent No.1 came driving Swaraj Mazada Tempo bearing Registration No.GJ-6-T-4729 in a rash and negligent manner and with full speed from the opposite direction and dashed with the jeep, as a result of which, deceased Babubhai Prajapati was thrown on the road and the jeep rolled down by the side of the road and dashed with a tree. The deceased sustained grievous injuries on the face and head and succumbed to his injuries on the spot. The offence was registered with Chhani Police Station being I-C.R.No. 57 of 1991.

NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined 2.2. The claimants, who are the widow, children and parents of deceased Babubhai Prajapati, have filed the claim petition mainly claiming that the deceased was aged about 28 years, was hale and hearty, was a hard working person and was doing business of truck parts and bricks and was also a partner of M/s. Jerambhai Ranchhodbhai Prajapati and had 13% share in M/s. Jerambhai Ranchhodbhai Prajapati and was looking after the business and was also a managing and active partner of M/s. Arun Transport and had 35% share in M/s. Arun Transport and was earning Rs.50,000/- per annum from above referred two firms. That all the claimants were dependent upon the earning of the deceased and have lost their sole bread winner and have claimed an amount of Rs.10 Lakhs with interest at the rate of 18% from the opponents jointly and severally under all the available heads.

3. The opponents were duly served with the summons and the opponent Nos. 1 and 2 appeared and filed the written statement at Exh.20 and the opponent No. 3 filed the reply at Exh. 23. The opponents have denied all the allegations made in the claim petition and have urged the learned Tribunal to dismiss the claim petition.

4. The learned Tribunal, considering the income of the deceased at Rs.16,825/- per month, added the prospective income and Page 3 of 7 Downloaded on : Sun Sep 17 00:16:28 IST 2023 NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined after deducting 1/3 amount and as the deceased was aged about 29 years, applied the multiplier of 16 and awarded an amount of Rs.2,69,200/- towards the future loss of income, Rs.20,000/- towards loss of consortium and Rs.5,000/- towards funeral expenses and in all, awarded an amount of Rs.2,94,200/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till realization.

5. Being aggrieved and dissatisfied with the judgment and award, the claimants have filed the claim petition mainly stating that the learned Tribunal has erred in considering the income of the deceased at Rs.16,825/- per month and has also erred in adopting the multiplier of 16 and has awarded very less amount under the head of loss of consortium, loss of estate, funeral expenses and has urged this Court to modify the order of the learned Tribunal and to enhance the amount of compensation.

7. Heard learned advocate Mr.M.T.M.Hakim for the appellants, learned advocate Mr.Mitesh Rangras for the respondent No.3. Though served, the other respondents have not appeared.

8. Learned advocate Mr.M.T.M.Hakim for the appellants has reiterated the contents of the appeal memo and has stated that the amount of compensation is required to be enhanced Page 4 of 7 Downloaded on : Sun Sep 17 00:16:28 IST 2023 NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined in view of decisions of the Hon'ble Apex Court in the cases of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211, National Insurance Company Limited Vs. Pranay Sethi reported in (2017) 16 SCC 680 and also Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram reported in (2018) 18 SCC 130, and accordingly, the amount of compensation may be enhanced.

9. Learned advocate Mr.Mitesh Rangras for respondent No.3 has stated that the learned Tribunal has not erred in any manner and has properly appreciated the evidence regarding income of the deceased and there is no merits in the appeal, and hence, the appeal may be dismissed.

10. On perusal of record, the claimant No.1 - widow of deceased Babubhai Prajapati has been examined at Exh.35 and she has narrated all the facts made in the claim petition. She has categorically stated that the deceased was doing the business of bricks and was also partners of above referred two firms and had 35% and 13% share respectively in both the firms. In support of the claim petition, the claimants have produced the Income Tax Returns for the assessment year 1987-88, 1989-90, 1991-92. The claimants have also produced the copy of the complaint at Exh.37, panchnama at Exh. 38 and P.M.Note of the deceased at Exh. 39.

NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined

11. On perusal of the records, it appears that the learned Tribunal has considered the income of the deceased to be 25,285/- per annum and the same seems to be just and proper considering the Income Tax Return produced on record. As per the judgment of the Apex Court in the case of Sarla Verma (Supra), as the deceased was 29 years old on the date of the accident, 40% future prospective income must be added and the income would be Rs.35,399/- per annum, out of which, as there are three dependents, ¼ amount must be deducted for personal expenses and annual loss of dependency would be Rs.26,550/-. The deceased was admittedly 29 years old on the date of accident and the multiplier of 17 must be applied and accordingly, total loss of dependency would be 4,51,350/-. The learned Tribunal has awarded annual amount of Rs.10,000/- towards the loss of consortium to the claimant No.1 - widow but, as per the decision of the Apex Court in the case of Magma General Insurance Co. Ltd. (Supra), the claimants are entitled to Rs.1,60,000 towards loss of spousal, parental and filial consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, and in all, the claimants are entitled to Rs.6,41,350/-. The learned Tribunal has already awarded an amount of Rs.2,94,200/- and hence, the claimants are entitled to an additional amount of Page 6 of 7 Downloaded on : Sun Sep 17 00:16:28 IST 2023 NEUTRAL CITATION C/FA/1453/2008 JUDGMENT DATED: 04/08/2023 undefined Rs.3,47,150/- with 6% interest from the date of filing of the claim petition till realization.

12. For the foregoing reasons, the appeal is allowed and the judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.)Vadodara in MACP No. 867 of 1991 on 25.06.2007 is hereby modified and in addition, the claimants are entitled to receive Rs.3,47,150/- as an additional amount with interest at the rate of 6% per annum on the enhanced amount til realization. The insurance company is directed to deposit the additional amount of compensation with 6% interest as early as possible within an outer limit of eight weeks from the date of receipt of certified copy of this order. After depositing of the additional amount of compensation, the same shall be disbursed in favour of the claimants through NEFT / RTGS, after proper verification.

13. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.

Sd/-

(S. V. PINTO, J) F.S.KAZI.....