C/FA/1715/2010 JUDGMENT DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1715 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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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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HINABEN JAMANBHAI & 3 other(s)
Versus
RELIANCE PETROLEUM LTD & 3 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1,2,3,4
MR ANAL S SHAH(3988) for the Defendant(s) No. 2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR PR NANAVATI(508) for the Defendant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/03/2023
ORAL JUDGMENT
1. The appellants - original claimants have preferred this appeal under section 173 of the Motor Vehicles Act Page 1 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 1988 (hereinafter referred to as "the Act") being aggrieved and dissatisfied by the judgment and award dated 9.1.2009 passed by learned Motor Accident Claims Tribunal (Aux.), Jamnagar in Motor Accident Claims Petition No.919 of 2000.
2. The brief facts of the case that emerge from the record of the appeal are as under.
2.1 That on 2.9.2000 deceased Jamanbhai Vallabhdas was travelling as a pillion rider on a Hero Honda bearing registration No.GJ 10 E 1502 which was driven by his nephew Naresh Navinchandra and they were travelling from Sikka village to Jamnagar. That when they reached near village Bed, the traffic had stopped and a truck was in front of them and as they were waiting for traffic to move on, the opponent No.1 came driving Dumper bearing registration No.GJ 10 V 3641 rashly and negligently in full speed and dashed against Matador bearing registration No.GJ 10 B 4796 and as both these vehicles collided with each other, they hit the Hero Honda and deceased Page 2 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 Jamanbhai Vallabhdas and his nephew were injured and they were rushed to G.G.Hospital, Jamnagar for treatment where Jamanbhai Vallabhdas succumbed to his injuries. The offence was registered at Panchkoshi "B" Division Police Station, Jamnagar being CR No. I - 161 of 2000.
3. The claimants i.e. wife, children and mother of deceased Jamanbhai preferred the claim petition mainly contending that they had lost their bread earner and the deceased was working in Jalaram Transport as an Assistant Manager and was earning Rs.4600/- per month and was also doing wholesale business of tea and earning around Rs.2000/- per month from that business and hence, the deceased was earning around Rs.6000/- per month. That the claimants have spent a huge amount for funeral and last rites of the deceased and the deceased was healthy and would live upto 80 years, but due to his sad demise, they have lost their source of income and hence, the claimants have claimed compensation of Rs.7,00,000/- jointly and severally from the opponents.
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C/FA/1715/2010 JUDGMENT DATED: 24/03/2023
4. The opponents - insurance companies appeared before the learned Tribunal and after the evidence was recorded, the learned Tribunal was pleased to award an amount of Rs.6,13,800/- to the claimants as compensation by a judgment and award dated 9.1.2009.
5. Being aggrieved and dissatisfied with the said judgment and award, the claimants have preferred the present appeal mainly contending that the amount awarded has resulted in miscarriage of justice as the learned Tribunal has failed to appreciate the future prospects of advancement in life and career of the deceased while computing the total amount of just and appropriate compensation. That the learned Tribunal has considered the amount of income of the deceased at Rs.4600/- per month but has not considered his future prospective income which ought to have been considered at Rs.6900/- per month and hence, the quantum of compensation awarded is on lower side. That the learned Tribunal ought to have awarded the entire amount of Rs.7,00,000/- to the Page 4 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 claimants and hence, the appellants have prayed that the amount of compensation be enhanced with interest from the date of filing of the claim petition till the deposit of enhanced amount before the learned Tribunal.
6. I have heard Mr.Premal S.Rachh, learned advocate for the appellants, Mr.Aditya Chaudhary, learned advocate for Mr.Anal Shah, learned advocate for respondent No.2 and Mr.G.C.Mazmudar, learned advocate for respondent No.4.
7. Mr.Premal Rachh, learned advocate for the appellants has submitted that the learned Tribunal has not considered the future prospective income of the deceased which ought to have been at 40% of Rs.4600/- and after applying multiplier of 16, dependency loss would come to Rs.8,24,320/-. Moreover, the learned Tribunal has also not considered the loss of estate which is at Rs.15000/- and funeral expenses of only Rs.5000/- have been granted, whereas the claimants are entitled to funeral expenses at Rs.15,000/-. The learned Tribunal has also grossly erred in Page 5 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 granting Rs.20,000/- towards loss of consortium when in fact, there are three dependents, the amount of Rs.40000 x 3 = Rs.1,20,000/- ought to have been granted to the claimants and instead of the amount of Rs.6,13,800/-, an amount of Rs.9,74,320/- ought to have been granted to the claimants in view of the settled law of the Honourable Supreme Court in the case of National Insurance Company Limited Vs Pranay Sethi and others, reported in (2017) 16 SCC 680.
8. Mr.Aditya Chaudhary, learned advocate for respondent No.2 - insurance company of the Dumper bearing registration No.GJ 10 V 3641 and Mr.Mazmudar, learned advocate for respondent No.4 - insurance company of the Matador bearing registration No.GJ 10 V 4796 have opposed the present appeal and they have jointly submitted that learned Tribunal has considered all the aspects and if ultimately this Court comes to the conclusion that the amount of compensation is to be enhanced in favour of the claimants, interest at the rate of 6% per annum may be Page 6 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 granted on the same.
9. The Honourable Apex Court in Pranay Sethi (supra) has observed thus :
"59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4 In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
10. In view of the above cited judgment, it appears that learned Tribunal has not considered future prospective income of the deceased and 40% rise in income of Rs.4600/- per month is required to be added as the deceased was self employed and after deducting 1/3rd Page 7 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 amount for personal expenses of the deceased, total dependency loss would come to Rs.8,24,320/-, the learned Tribunal has also not granted any amount towards the loss of estate and funeral expenses only Rs.5000/- have been granted, but in fact, the claimants are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, the learned Tribunal has also awarded the amount of Rs.20,000/- towards loss of consortium, but as per the settled law in the case of Pranay Sethi (supra), the wife is entitled to Rs.40,000/- as spousal consortium and minor children are also entitled to Rs.40,000/- each as parental consortium and accordingly, the claimants are entitled to Rs.1,20,000/- towards loss of consortium. There is no challenge with regard to the age of the deceased and application of the multiplier of 16 applied by the learned Tribunal and also the negligence factor of both the vehicles as decided by the learned Tribunal and hence the same have not been discussed.
11. In view of the aforesaid discussion, the Page 8 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 compensation awarded by learned Tribunal is held to be not just and adequate and thereby the same deserves to be modified as under.
Sr.No Details Rs.
1 Dependency loss 8,24,320/-
2 Funeral expenses 15,000/-
3 Loss of estate 15,000/-
4 Consortium 1,20,000/-
Total 9,74,320/-
12. The learned Tribunal has awarded compensation of Rs.6,13,800/- and hence, the claimants shall be entitled for an additional amount of Rs.3,60,520/-. The learned Tribunal has awarded interest at the rate of 9% per annum on the amount awarded as compensation and the learned advocates appearing for the respective insurance companies have strongly opposed the grant of interest at the rate of 9% per annum on the enhanced amount. The accident had occurred on 2.9.2000 and the award came to be passed by the learned Tribunal on 9.1.2009 and in view of the above, this Court is of the considered opinion that if interest at the rate of 7.5% per annum on the enhanced amount is Page 9 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023 C/FA/1715/2010 JUDGMENT DATED: 24/03/2023 granted, it would meet the ends of justice.
13. Resultantly, the appeal is partly allowed. The claimants shall be entitled to an additional amount of Rs.3,60,520/- with 7.5% interest from the date of application till the realization. The respondents insurance companies are hereby directed to deposit the additional sum of Rs.3,60,520/- with 7.5% interest within a period of 12 weeks after receipt of the copy of the order. Rest of the judgment and award remains unaltered. The claimants have to deposit the court fees on the enhanced amount. The learned Tribunal, in turn, shall disburse the same in favour of the claimants after proper verification.
R & P be sent back forthwith.
(S. V. PINTO,J) H.M. PATHAN Page 10 of 10 Downloaded on : Mon Mar 27 20:39:23 IST 2023