Nikunj Thakorbhai Prajapati vs Bipinchandra Rashiklal Jayhswal

     C/FA/2933/2021                                ORDER DATED: 06/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2933 of 2021

================================================================
                         NIKUNJ THAKORBHAI PRAJAPATI
                                    Versus
                      BIPINCHANDRA RASHIKLAL JAYHSWAL
================================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 5
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 2
MR. HEMAL SHAH(6960) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,4
================================================================
 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 06/03/2023
                                ORAL ORDER

1. The challenge is given to judgment and award in Motor Accident Claims Petition No.490 of 2015 dated 13.3.2020 by Motor Accident Claims Tribunal (Aux), Vadodara.

2. Mr.Nishit Bhalodi, learned advocate for the claimant submitted that income has not been assessed in accordance with the date of accident and inflation index of the relevant time. He stated that learned Tribunal ought to have taken into consideration the minimum wages schedule to take the assistance for assessing monthly income.

3. While Mr.Chirayu Mehta stated that learned Tribunal has considered the income in accordance with the evidence so produced and considering the fact that the deceased was selling earthern-wares, while no documentary evidence to support the same was produced on record of the Tribunal and, therefore, the monthly income as considered by the Tribunal is just and reasonable.

C/FA/2933/2021 ORDER DATED: 06/03/2023

4. The facts of the case suggest that the deceased and his daughter-Dr.Rashmikaben, claimant No.2, were going towards Village-Sarasavani in Chhakado Rickshaw bearing No. GJ-6 AU- 8272, which was driven by opponent no.1. It is stated that opponent no.1 was driving the vehicle rashly and negligently in full speed. When the chhakado rickshaw reached near cross- road of Sarasavani Village, one car bearing registration no.GJ-5 CH-5173 came in full speed and in rash and negligent manner from the opposite side and both the vehicles collided and the deceased Thakorbhai sustained fatal injuries and died during the treatment. An FIR was lodged by his daughter Rashmikaben against driver of the car. It is stated that the deceased was 52 years of age at the time of the accident and was selling earthern-wares and earning Rs.10,000/- per month.

5. Learned Tribunal, while assessing the negligence aspect has decided that drivers of both the vehicles were equally responsible for the accident, which had taken life of the deceased. No observation of the Tribunal with regard to the negligence has been challenged and this Court also does not find any reason to go into said finding. However, considering the date of accident being 10.4.2015 and the fact that the deceased was aged about 52 years and was selling earthern- wares, his income is not assessed rightly. Learned Tribunal should have taken into considered the minimum wages schedule on the date of the accident. As per the prevalent minimum wages schedule in the State at the time of accident, income of the deceased would be required to be considered as Rs.7,239/- per month. Considering the age of the deceased and in view of decision in the case of National Insurance Page 2 of 4 Downloaded on : Mon Mar 06 20:48:26 IST 2023 C/FA/2933/2021 ORDER DATED: 06/03/2023 Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 10% rise prospective income is required to be considered, as the deceased was in the age group of 50- 60 years. Therefore, the monthly prospective income of the deceased can be treated to be Rs.7,963/- [Rs.7239 + Rs.724 (10% increase)]. As per the decision in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, 1/3rd amount is required to be deducted towards personal expenses, considering the dependent members of the deceased. Therefore, the monthly prospective income would be Rs.5,309/- (Rs.7,963/- - Rs.2,654/-). Considering the age of the deceased to be 52 years, multiplier of 11 would be applicable. Therefore, the amount towards loss of dependency would be Rs.5,309x12x 11 = Rs.7,00,788/-.

6. Following the decision in the case of Pranay Sethi (supra), an amount of Rs.15,000/- each is required to be granted under the head of "loss of estate" and "funeral expenses".

7. The claimants would be thus entitled to the following amounts under various heads.

Dependency loss                                         Rs.7,00,788/-
Loss of Estate                                             Rs.15,000/-
Funeral expenses                                           Rs.15,000/-
Total                                                   Rs.7,30,788/-

8. Learned Tribunal has awarded Rs.5,62,356/- with interest at the rate of 9% p.a., therefore, the insurance company would Page 3 of 4 Downloaded on : Mon Mar 06 20:48:26 IST 2023 C/FA/2933/2021 ORDER DATED: 06/03/2023 be required to pay enhanced compensation of Rs.1,68,432/- with interest at the rate of 7.5% p.a. within a period of six weeks, from the date of petition till payment.

9. Accordingly, this First Appeal is partly allowed. The impugned judgment and award dated 13.3.2020 passed by by Motor Accident Claims Tribunal (Aux), Vadodara, in Motor Accident Claims Petition No.490 of 2015 is modified to above extent. Registry is directed to send the record and proceedings back to the Tribunal, if received.

(GITA GOPI,J) R.S. MALEK Page 4 of 4 Downloaded on : Mon Mar 06 20:48:26 IST 2023