Gujarat High Court
Rahimkhan Jivabhai Rathod vs Anwarbhai Bachubhai Rathod on 6 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/92/2019 JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 92 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAHIMKHAN JIVABHAI RATHOD
Versus
ANWARBHAI BACHUBHAI RATHOD
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2,3,4
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/12/2023
ORAL JUDGMENT
1. The claimants as heirs of deceased - Rashidabanu Rahimkhan Rathod, are the husband and Page 1 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined three minor children, challenging the judgment dated 13.08.2018 passed by Motor Accident Claims Tribunal (Main), Anand in M.A.C.P. No.608 of 2013 contesting the compensation amount granted, and raising the ground that the money under all the heads are on the lower side.
2. Mr.R.G. Dwivedi, learned advocate for the appellants submitted that the claimants had pleaded that the deceased was doing animal husbandry work and further was looking after the family; in spite of that only Rs.3,300/- has been assessed by the Tribunal; and further submitted that consortium loss was required to be granted to even the minor children.
3. Advocate Mr. Rathin P.Raval for the insurance company states that in absence of any documentary evidence in respect to animal husbandry work, the learned Tribunal has rightly, on the basis of assumption, considered monthly Page 2 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined income as Rs.3,300/- keeping in view the age of the deceased as 34 years at the time of accident. Thus, submitted that the compensation granted as being just and reasonable requires no interference of this Court.
4. The vehicular accident occurred on 31.05.2011 at about 6 hrs in the morning, at Mula Talavadi near Madrasa, where the deceased was travelling in Rickshaw No.GJ-23-U-1639 of the ownership of opponent no.1. The opponent no.2 is driver of rickshaw, who had driven it in rash and negligent manner, and when they approached Mula Talavadi near Madrasa, owing to bump on the road, the rickshaw driver suddenly applied brake; deceased, who was travelling in the rickshaw as a passenger sustained injuries on the head and prior to the treatment she died. The complaint was registered as I-C.R. No.108/11 at Anand Rurao Police Station.
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5. The relevant documents in the form of FIR, inquest panchnama, report in regard to the deceased, R.C. Book of the Vehicle, insurance policy, driving license and the copy of the charge sheet were produced on record in support of the affidavit in form of examination in chief at Exh. 17.
6. Learned advocate Mr. Dwivedi submitted that it is very strange and disappointing to note that 40% of negligence has been attributed to the deceased, who was travelling as a passenger in the rickshaw. During the course of trial, the driver, opponent no.2, had examined himself at Exh.34, who had admitted in the cross examination that he was driving in speed, and when he saw a bump near Madrasa, he suddenly applied brakes and as a result, the deceased sitting as a passenger was flung out.
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NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined 6.1 Mr. Dwivedi stated that the observation that the deceased had fallen from the rickshaw because of her negligence gets nullified from the evidence of the driver; in spite of that negligence has been attributed to the deceased passenger.
7. Advocate Mr. Rathin Raval submitted that pleading reflects the income of only Rs.3,000/-, and, thus states that beyond that no grace can be granted. Advocate Mr. Raval submitted that negligence aspect is decided on the evidence on record, and thus submitted that the Tribunal has rightly considered the deceased, negligent.
8. Perused the evidence of the driver of rickshaw Mahammod Khan Kalubhai Rathood. He has admitted in his cross examination of speeding the rickshaw and applying the brake at the bump near the Madrasa, and because of that the deceased sitting in his rickshaw was thrown out of the Page 5 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined vehicle who sustained injuries. The learned Tribunal has grievously erred in attributing negligence of the deceased, who was as a passenger in the vehicle. In view of the fact and evidence on record, on the admission of the rickshaw driver, 100% negligence is herein attributed to the driver of rickshaw.
9. Learned advocate Mr. Raval for the insurance company has agitated about the income, which has been pleaded. It requires to be noted that the deceased, was in animal husbandry work and the pleading was that from that works, she was earning income of Rs.3,300/- per month. It is also required to be noted that the deceased as mother was looking after the family, she is also entitled to be compensated for the contribution she makes for the welfare of the family; thus, even considering her as a housewife along with the work, stated to be of animal husbandry, this Court considers that the deceased is required to Page 6 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined be justly compensated even for her contribution in family as a housewife. The standard for compensating housewife has yet not laid down, nor any statute appreciates the work of a housewife; however, Supreme Court in various of judgments has granted compensation to the housewives; thus, keeping in view the fact that unskilled labourer, as per the minimum wages schedule, has also been granted minimum wages of Rs.4,500/- per month. This Court taking that standard in view, considers to assess the income as Rs.4,500/- of the deceased.
10. In view of the age of the deceased as 34 years at the time of accident, relying on the judgment of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, 40% prospective rise is assessed, hence, the monthly income would come to Rs.6,300/- (Rs.4,500 + Rs.1,800). Considering the dependents, 1/4th is deducted, hence, the amount would come to Page 7 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined Rs.4,725/- (6,300 - 1,575/-). Thus, yearly loss would come to Rs.56,700/- (4,725 x 12). 10.1 The multiplier applied would be 16; hence, the dependency loss would come to Rs.9,07,200/- (56,700 x 16).
11. The claimants are three minors and widower husband, as per Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782], the consortium loss to each of the claimants would be Rs.40,000/-; thus under the head of consortium loss, the amount would come to Rs.1,60,000/- (40,000 x 4).
11.1 Under the loss of estate and loss of funeral expenses, Rs.15,000/- each, under both the heads are granted.
12. In view of the above, compensation under Page 8 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined different heads would be:
Heads Amount Future loss of income Rs. 9,07,200/- Consortium loss Rs. 1,60,000/- Loss of Estate Rs. 15,000/- Funeral Expenses Rs. 15,000/- Total Rs.10,97,200/-
13. The Tribunal has granted compensation of Rs.4,41,168/-. The enhanced amount of Rs.6,56,032/- [10,97,200 - 4,41,168) be deposited within eight weeks from the date of receipt of writ of this order at the rate of 7.5%.
14. Considering that the minor claimants have turned major, 60% amount be disbursed in favour of all the claimants in proportion, as decided by the Tribunal, by Account Payee cheque, after due verification; the remaining 40% shall be invested in Fixed Deposit with any nationalized Bank in the name of the original claimant/s for a period of two years, and after Page 9 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023 NEUTRAL CITATION C/FA/92/2019 JUDGMENT DATED: 06/12/2023 undefined two years, the same be disbursed in favour of the original claimant/s with accrued interest thereon on proper verification.
15. In the result, the appeal is partly allowed. The impugned judgment and award dated 13.08.2018 passed by Motor Accident Claims Tribunal (Main), Anand in M.A.C.P. No.608 of 2013, stands modified to the aforesaid extent. No order as to costs. Record & Proceedings, if any, be sent back to the concerned tribunal.
(GITA GOPI,J) Pankaj Page 10 of 10 Downloaded on : Wed Dec 13 20:31:44 IST 2023