C/FA/2367/2022 JUDGMENT DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2367 of 2022
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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SANGADA RAJESHBHAI KANJIBHAI
Versus
SABURBHAI NARSINGBHAI PASAYA
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Appearance:
MS DB ZALA for MR A A ZABUAWALA(6823) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/02/2023
ORAL JUDGMENT
1. ADMIT. Mr. Palak Thakkar, learned advocate waives service of notice of admission on behalf of respondent no.3.
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2. The facts of the case suggest that on 16.7.2011 at about 01:00 p.m., the deceased and the minor daughter were traveling in a rickshaw bearing registration no. GJ-17 U- 4553. The rickshaw was driven in a rash and negligent manner by opponent no.1, as a result of which, the deceased was thrown out of the said rickshaw and was struck down on the road and hence, sustained serious injuries. It is stated that she was admitted in the Samir Hospital, Dahod, where she succumbed to the injuries during treatment.
3. Ms. D.B. Zala, learned advocate for Mr. Zabuawala, learned advocate for the appellants submits that the challenge is given to the judgment and award dated 6.1.2016 passed in MACP no.422 of 2011 primarily with a prayer to enhance the award amount.
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4. Ms. Zala submits that the Tribunal has not considered the age of the appellant in accordance with evidence and has committed grave error in assessing the income of the deceased who was doing agriculture work and stated that the amount under the head of pain, shock and suffering and transportation expenses is on lower side and further submits that the learned Tribunal has very grievously erred in considering 20% negligence of the deceased lady who was traveling in a rickshaw. Ms. Zala submits that the learned Tribunal has considered contributory negligence of the passenger of the rickshaw observing that the deceased was required to sit properly while traveling in a rickshaw. Ms. Zala submits that the learned Tribunal has not even considered the future prospects income of the deceased when her age was considered as 40 and was doing Page 3 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 agriculture activities and earning from dairy business.
5. While countering the arguments, Mr. Palak Thakkar, learned advocate for the insurance Company submits that the learned Tribunal has considered the income factor in accordance with the evidence on record while the amount under the pain, shock and suffering and transportation charges has been granted without any evidence. Mr. Thakkar submits that no certificate has been produced to show monthly income and thus, submits that there would not be any requirement to interfere with the judgment and award passed by the Tribunal.
6. The claimants have stated that the deceased was earning income from agriculture work and was also earning from dairy business. They had urged monthly income as Rs.8,500/-. Page 4 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 However, the learned Tribunal has observed that the certificate with regard to income has not been produced. The appellants- claimants have also disputed the age. However, no cogent evidence was produced by way of birth certificate or other public document to know the age of the deceased. The learned Tribunal has relied upon the postmortem report, which reflects the age as
40. This Court also considered the same as reliable evidence to consider the age of the deceased as 40. The accident took place in the year 2011. Considering the date of accident as 16.7.2011, the skilled person would be entitled to receive Rs.4,980/-. This Court, thus, deems fit to consider the claimant as housewife as well as the skilled labourer and therefore, Rs.5,000/- is required to be considered as monthly income. The age of the deceased, being considered as Page 5 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 40, she would be entitled for 25% rise in income. There are 4 dependents of the deceased and hence, there would be one- fourth deduction as personal expenses of the deceased. Thus, the monthly income would be considered as Rs.4,688/-. The calculation would be as under:-
Rs.5,000/- Income per month + Rs.1,250/- 25% rise in income = Rs.6,250/- Income per month
- Rs.1,562/- One-fourth towards personal expenses = Rs.4,688/- Income per month
7. Considering the annual loss, applying multiplier of 15, since the deceased would fall under the age group of 36-40, the future dependency loss would be Rs.8,43,840/- (Rs.4,688/- X 12 X 15).
8. The learned Tribunal has failed to consider that the deceased had left behind her 3 minor children and husband.
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9. In the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, it has been observed as under:-
"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, Page 7 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979) Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss Page 8 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."
10. The Hon'ble Apex Court has considered the fact of consortium amount to be granted to the dependents on account of loss of family members. Thus, under the head of consortium money, the applicants would be entitled to Rs.1,60,000/- (Rs.40,000/- x 4). Following the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, under the head of funeral expenses, amount of Rs.15,000/- is granted and under the head of Page 9 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 loss to estate, amount of Rs.15,000/- is granted. The postmortem report at Exh.27 is of 18.7.2011, while the accident had occurred on 16.7.2011. Thus, taking into consideration the days of hospitalization, the amount granted under the head of pain, shock and suffering and transportation requires no interference of this Court.
11. The Tribunal has granted the amount as under:-
Rs.3,60,000/- Future dependency + Rs.7,500/- Pain, shock and suffering + Rs.7,500/- Funeral expenses + Rs.2,500/- Transportation charges = Rs.3,77,500/- Total
12. The claimants now would be entitled to receive the amount as under:-
Rs.8,43,840/- Future loss of dependency + Rs.1,60,000/- Consortium amount + Rs.7,500/- Pain, shock and suffering Page 10 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 + Rs.2,500/- Transportation charges + Rs.15,000/- Funeral expenses + Rs.15,000/- Loss of estate = Rs.10,43,840/- Total compensation
13. The claimants had restricted their claim for compensation at Rs.9,40,000/-. However, they are entitled to receive Rs.10,43,840/-. The learned Tribunal has granted the amount of Rs.3,02,000/- with interest at the rate of 7.5% per annum, which the insurance Company would have to deposit. Hence, the applicants are entitled to enhanced amount of Rs.7,41,840/- with interest at the rate of 7.5% per annum. Further, Court fee stamp appears to have been paid only on restricted amount of Rs.9,40,000/-. Since the compensation has been enhanced, the deficit Court fees shall be recovered from the appellants. The amount be deposited within eight weeks from the date of receipt of writ this judgment and order. The award be Page 11 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023 C/FA/2367/2022 JUDGMENT DATED: 16/02/2023 modified accordingly. The appeal is allowed in the above terms. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 12 of 12 Downloaded on : Mon Feb 20 20:45:14 IST 2023