C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1669 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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HETALBEN GHANSHYAMBHAI PATEL
Versus
RAJESHBHAI M PATEL
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 3
MS LILU K BHAYA(1705) for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/03/2023
ORAL JUDGMENT
1. Challenge is given to the judgment and award dated 26.3.2018 passed by the MACT (Aux), Kheda at Nadiad in MACP no.831 of 2013. Page 1 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
2. The ground raised is that the income has not been considered in accordance to the minimum wages schedule and consortium amount has not been granted as per the decision in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130. Mr. Bhalodi, referring to the facts of the case, states that the deceased was working as driver in J.K. Transport Company. Mr. Bhalodi submits that since the concerned person could not be examined, but to satisfy the fact prima facie of he being the driver, it could not be proved. Mr. Bhalodi submits that the Tribunal ought to have taken judicial notice of the said fact and should have at least considered him as a skilled worker and could have granted money in accordance to the minimum wages schedule and thus, states that the income assessed is on lower side. Page 2 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023 Further, the consortium money was required to be granted in accordance to the decision in the case of Magma General Insurance Company Limited (supra), since the deceased left dependents being widow, two minor children and aged parents.
3. Countering the arguments, Advocates Mr. Thomas as well as Ms. Bhaya for both the insurance Companies submit that since no income was proved, the learned Tribunal has granted Rs.4,000/- per month considering as the income of the deceased, which is just and reasonable and thus, urged that the same be considered.
4. The facts of the case suggest that the deceased was traveling in a Qualis car bearing registration no. GJ-6 AH-8898. The deceased was plying the vehicle and suddenly from opposite direction, the driver of Page 3 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023 tanker bearing registration no. GJ-7 Z-7160 came in an excessive speed in a rash and negligent manner and dashed Qualis car, as a result, he sustained serious injuries and succumbed to death. The learned Tribunal, after discussing the facts on record of two involved vehicles of the deceased driving the Qualis car bearing registration no. GJ-6 AH-8898, attributed negligence of 20% to the deceased, while 80% negligence was assessed of the driver of the tanker bearing registration no. GJ-7 Z-7160. The negligence aspect has not been challenged by any of the parties on record. No contrary fact has been shown to this Court for taking any contrary view. Thus, this Court considers that the ratio as apportioned for the negligence of drivers of both the vehicles is in accordance to the evidence on record. Page 4 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
5. It is an admitted fact that the deceased himself was driving the Qualis car and it has been stated that he was driver with one J.K. Transport Company. However, the fact could not be proved by the documents on record or by examining any authorized person of J.K. Transport Company. However, considering the deceased as unskilled worker, the learned Tribunal ought to have granted the money in accordance to the minimum wages schedule which on the date of the accident being 14.5.2013, the Tribunal ought to have considered at Rs.5,300/-. The learned Tribunal has granted 40% rise in income, which is in accordance to the judgment of the Hon'ble Apex Court considering the age of the deceased as 29 years at the time of the death, the dependents are widow, two children, parents and one grand mother, hence, one-fourth is Page 5 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023 required to be deducted. Thus, future dependency loss per annum would be Rs.66,780/- (Rs.5,300/- + 40% - 1/4 X 12).
6. The multiplier applied is 17 by the learned Tribunal, which is in accordance to the age and the decision in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. Hence, applying multiplier of 17 to the future dependency loss, the future loss of income would come to Rs.11,35,260/- (Rs.66,780/- X 17).
7. 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 and loss of estate, Rs.15,000/- under each head has been granted by the Tribunal, which are just and proper.
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8. However, the consortium money is not in accordance to the decision in the case of Magma General Insurance Company Limited (supra), where the widow and minor children and even the aged parents would be entitled to consortium loss and thus, considering 5 aggrieved persons at Rs.40,000/- per head, total amount comes to Rs.2,00,000/-. Hence, the computation would be as under:- Future loss of income Rs.11,35,260/-
Funeral expenses + Rs.15,000/-
Loss to estate + Rs.15,000/-
Loss of consortium + Rs.2,00,000/-
Total compensation = Rs.13,65,260/-
9. As the Tribunal has granted compensation of Rs.9,26,800/- with interest at the rate of 9% per annum, the appellants would be entitled to enhanced amount of compensation of Rs.4,38,460/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Page 7 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023 C/FA/1669/2019 JUDGMENT DATED: 27/03/2023 Both the insurance Companies are directed to deposit an amount of Rs.4,38,460/- as per the proportion so fixed by the Tribunal with interest at the rate of 7.5% per annum within six weeks from the date of receipt of writ of this Court.
10. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 8 of 8 Downloaded on : Mon Mar 27 20:49:18 IST 2023