Thakor Jyostnaben Wd/O Lavjiji ... vs Decd Abhabhai Muljibhai ...

     C/FA/734/2023                                      ORDER DATED: 22/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 734 of 2023

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           THAKOR JYOSTNABEN WD/O LAVJIJI GAMBHIRJI
                            Versus
          DECD ABHABHAI MULJIBHAI CHAUDHARY DELETED
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,2,4,5,7
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 6
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 22/02/2023

                               ORAL ORDER

1. By referring to impugned judgment and award dated 2.7.2018 passed in MACP No.181 of 2014 by Motor Accident Claims Tribunal (Aux), Arvalli at Modasa, Mr.Prajapati, learned advocate for the appellants submitted that the claimants have not been granted compensation money in accordance with the proposition of law laid down in various judgments of Honourable Supreme Court. He states that the claimants are four in number, which includes widow and two minors, who would be entitled to receive consortium money because of death of sole earning member of the family. He further submitted that if the claimants could not produce any cogent evidence to substantiate the factum of income then learned Tribunal should have granted amount in accordance with minimum wage schedule, considering inflation index and living standard.

C/FA/734/2023 ORDER DATED: 22/02/2023

2. The facts of the case suggest that the accident had occurred on 14.7.2014 at about 3.30 in the afternoon, when the deceased was standing at the outskirts of Village- Kesharpura. At that time, opponent no.1 started his dumper bearing registration no.GJ-2 VV-4478 suddenly and was driving it in excessive speed and in a rash and negligent manner and collided with the deceased. As a result thereof, the dumper clenched the deceased with another stationary dumper bearing registration No.GJ-18 AV-4620, which was parked in front of the offending vehicle. Learned Tribunal, after appreciating the evidence, had found driver of dumper bearing registration No.GJ-2 VV-4478 solely negligent for the accident, due to which the deceased succumbed to the injuries. Two vehicles are involved in the accident and insurance company of other vehicle is exonerated as no negligence was attributed to the driver of that vehicle.

3. It was deposed before learned Tribunal that the deceased, at the time of accident, was a driver, he was also supervising agricultural work and he was also earning from animal husbandry and the claimants had claimed monthly income of Rs.10,000/-. However, learned Tribunal has observed that no documentary evidence was produced on record to show the income of the deceased. The age of the deceased at the time of accident is urged to be 32 years, however, as per Postmortem Note, learned Tribunal has considered the same to be 35 years. Hence, the deceased falls in the age group of 31- 35 years and multiplier of 16 was made applicable.

      C/FA/734/2023                                  ORDER DATED: 22/02/2023




4.      The   date   of   accident    is      14.7.2014      and       since       no

documentary evidence was produced on record, and since the deceased the maintaining the family members, keeping in mind, minimum wages schedule, Rs.6000/- monthly income is required to be assessed. Taking into consideration the age of the deceased and considering the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 40% rise in prospective income is required to be considered. Thus, the monthly income would come to Rs.8400/- (Rs.6000 + Rs.2400). Therefore, future loss of dependency of the deceased comes to Rs.8400/-. 1/4th of this amount is to be deducted as personal expenditure, considering the dependency left behind by the deceased. Hence, the contributory amount to the family would come to Rs.6300/- (Rs.8400/- - Rs.2100/- = Rs.6300/-) and considering the age of the deceased, at the time of accident, multiplier of 16 is required to be applied. Therefore, loss of dependency would come to Rs.6300 X 12 months X 16 = Rs12,09,600/-.

5. The deceased has left behind him aged parents, widow and two minor children. Following proposition of law as laid down in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, the claimants would be entitled to Rs.40,000/- per person towards consortium and as the appellants before this Court are four in number, they are entitled to get Rs.40,000/- X 4 = Rs.1,60,000/-.

C/FA/734/2023 ORDER DATED: 22/02/2023

6. As per the case of Pranay Shetty (supra), amount under the loss of estate and funeral expenses is required to be granted to Rs.15,000/- each. Thus, the claimants would be entitled to the following amounts:-

Dependency loss                                          Rs.12,09,600/-

consortium money                                           Rs.1,60,000/-

Loss of Estate                                                Rs.15,000/-

Funeral Expenses                                              Rs.15,000/-

Total                                                    Rs.13,99,600/-

7. The Tribunal has granted Rs.7,75,600/- with interest at the rate of 9% p.a., however, in view of above discussion, the claimants would be entitled to enhanced amount of Rs.6,24,000/- with interest at the rate of 7.5% p.a. Rest of the award shall remain unchanged. The insurance company is directed to deposit the amount, as aforesaid, within a period of six weeks from today.

8. Interest accrued on the amount awarded in favour of the minor claimants, which is deposited in FDR, shall be paid to the mother of the claimants. Such amount shall be used for the education and welfare of the children.

9. Out of the total amount of compensation, 70% of the amount be invested in a Fixed Deposit with any nationalized Bank, initially, for a period of two years, (which shall be renewed from time to time) without any reference to this Page 4 of 5 Downloaded on : Fri Feb 24 20:47:43 IST 2023 C/FA/734/2023 ORDER DATED: 22/02/2023 Court, or till the final disposal of the Appeal, if any, whichever is earlier. Interest accruing on such Fixed Deposit shall be accumulated, except for the minors, as directed herein above. Insofar as remaining 30% amount is concerned, the same shall be disbursed in favour of the original claimant(s), after proper verification.

10. Accordingly, this First Appeal is partly allowed. The impugned judgment and award dated 2.7.2018 passed in MACP No.181 of 2014 by Motor Accident Claims Tribunal (Aux), Arvalli at Modasa is modified accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.

(GITA GOPI,J) R.S. MALEK Page 5 of 5 Downloaded on : Fri Feb 24 20:47:43 IST 2023