NEUTRAL CITATION
C/FA/4243/2022 JUDGMENT DATED: 14/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4243 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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PURIBEN WD/O BHARATSINH VECHATSINH
Versus
GIRISHBHAI BABULAL
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Appearance:
MR H M SHAH(3997) for the Appellant(s) No. 1,2,3,4
MR MEHUL M MEHTA(3416) for the Defendant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/09/2023
ORAL JUDGMENT
[1] Heard the learned advocates appearing for the respective parties.
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NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined [2] The appellants, who are heirs of Bharatsinh Vechatsinh Rathod, being aggrieved by the judgment and award dated 26.4.2019 passed by the MACT (Aux) in MACP no.141/2007, has preferred this appeal.
[3] This is a second round of litigation. Earlier the claimants had challenged the judgment and award dated 28.9.2015 in MACP no.141/2007 passed by the same Tribunal by filing First Appeal no.1786/2017 and the appeal came to be allowed quashing and setting aside the judgment and award dated 28.9.2015 and the proceedings of MACP no.141/2007 were ordered to be restored back to the MACT, Gandhinagar with a direction to the Tribunal to decide the claim petition afresh after appreciating the evidence on record as a whole.
[4] Thereafter again, the petition was heard and M.A.C.P. came to be dismissed on 26.4.2019. Page 2 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023
NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined [5] Advocate Mr. H.M. Shah for the appellants submits that the learned Tribunal had committed an error as was observed in the earlier judgment and award and on reappreciation of the evidence, the judgment and award dated 28.9.2015 was quashed and set aside and was sent back for decision afresh. However, the very fact which was brought to the notice of the Court and was reappreciated in First Appeal no.1786/2017 was again erroneously committed by the Tribunal and the vital evidence on record were ignored and the Tribunal had laid down heavy burden on the claimants to prove the case beyond reasonable doubt where though reference has been made of the principle of preponderance of probability, the same error came to be committed. Mr. Shah submits that the driver was not joined as party following the judgment in the case of United India Insurance Company Ltd. v. Moghiben widow of Baldevbhai Devabhai Bharvad Page 3 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined & Ors., reported in 2009 (4) GLR 2881 but had the Tribunal any doubt, could have joined the driver as party respondent or could have called the driver as its own witness to rebut or the insurance company could have called the driver as its own witness to prove by giving any rebuttal evidence, to the evidence led by the claimants by way of FIR, Panchnama and had also proved the case by the fact of charge- sheet being filed against the driver at Exh.69. Advocate Mr. Shah submits that the certified copy of the FIR was produced at Exh.64, Panchanma at Exh.59, inquest Panchnama at Exh.66, Panchnama of vehicle no. GJ-1 HA- 6541 at Exh.65, complaint at Exh.58, accident report at Exh.68 and the charge-sheet at Exh.69. The applicant no.1 examined herself at Exhs.24 and 52 and witness - Rangaji Bhimaji Thakor examined himself at Exh.35 and witness- Rajuji Jamaji Thakor was examined at Exh.62. Page 4 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023
NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined [6] Mr. Shah submits that Rangaji Bhimaji Thakor was a witness who was walking along with the deceased as a pedestrian. They were going to Dwarka on correct side of Kachcha road and according to his evidence who was an eye- witness to the incident had stated that at about 10:00 a.m. vehicle no. GJ-1 HA-6541 came from the back side and had hit the deceased, as a result, the deceased was flung from the road and he sustained injuries on neck, face and other body parts and became unconscious. Advocate Mr. Shah submits that the FIR was given by Rangaji. However, in the FIR, he gave vehicle no. GJ-1 CJ-6541 which Mr. Shah stated that there was some error in the middle series of the vehicle number where actual vehicle as per the charge-sheet was GJ-1 HA-6541. Mr. Shah submits that it is not always possible for the person to remember the vehicle number where he himself becomes an eye-witness and on him, the responsibility of taking care of the Page 5 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined needs of the injured would be primary and predominant and it would not be expected of the person to remember the exact vehicle number to get reflected in the FIR. Advocate Mr. Shah submits that FIR was filed on 19.2.2007 and on the very next day i.e. on 20.2.2007, Panchnama of the scene of accident was drawn and the number of Maruti car was correctly mentioned as GJ-1 HA-6541. Panchnama dated 1.3.2007 also refers to white Maruti car bearing registration no. GJ-1 - HA-6541. [7] In the earlier round of litigation, the matter was ordered to be restored on the file to be considered afresh where the fact of the vehicle number being the actual vehicle number was reflected in both Panchnamas was observed. The evidence to the effect was also given that the vehicle was GJ-1 HA-6541 and the fact of charge-sheet as noted in the record and proceedings was also reflecting the observation of the First Appeal and this Court Page 6 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined while quashing and setting aside the judgment dated 28.9.2015 has specifically observed that the vital evidence has not been dealt with. [8] Record and proceedings of the present matter was called by this Court. The claimant no.1 had examined herself at Exhs.24 and 52 while Rangaji Bhimaji Thakor was examined at Exh.35. As per his evidence on 16.2.2007, they were going to Dwarka. They had night stay at Kali Village on 17.2.2007 and again on 18.2.2007 at about 6.00 a.m., they had started from Iyava Vasna, Taluka Sanand towards Viramgam. He along with Pintuji Govindji Thakore and the deceased Bharatbhai all 3 were going towards Sachana Village walking on the correct side of the road. As per his evidence, Bharatbhai was on Kachcha road on the side and 1 km. from Sachana towards Sanand near Dharanendra factory at about 10:00 to 10:30 a.m., they reached at highway road and suddenly vehicle bearing registration no. GJ-1 HA-6541 came in Page 7 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined full speed in a rash and negligent manner and dashed with the deceased Bharatbhai from the back side. As per his evidence, Bharatbhai was flung from the road and had fallen near stone on the side of the road. He has described about injury and the deceased had been unconscious. As per his evidence, the person who was along with them Pintuji had seen the colour of the vehicle being white but he states that the driver of the vehicle had gone ahead and had stopped the vehicle. When they reached there, he informed that his name was Alpesh and was from Bopal, Ahmedabad who had also stated before them about his mistake in the accident. The driver himself had recommended for the treatment of the deceased at Viramgam Village and therefore, for further treatment, the deceased was taken in an Ambulance at Vadilal Hospital, Ahmedabad and on 19.2.2007, he came to know that Bharatbhai had died in the morning at about 6.30. The Page 8 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined witness states that the driver of the vehicle had given his vehicle number as GJ-1 CJ-6541 and therefore, in the complaint, he has referred the number before the police but thereafter in the investigation, the original number was found as GJ-1 HA-6541. The witness
- Rangaji Thakor is an eye-witness to the incident. He had referred to his communication with the driver of the vehicle and under what circumstances, the vehicle no. GJ-1 CJ-6541 was noted in the FIR. While it is stated that in the investigation, it was found that the original number was GJ-1 HA-6541. This error in the FIR cannot be considered as fatal and in alphanumerical registration number, such error would not go to the root of the case, more so in the claim compensation for it to be rejected. The learned Tribunal has failed to appreciate that the charge-sheet was filed against the driver of GJ-1 HA-6541. Both the Panchnamas reflect the original number of the Page 9 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined vehicle. The driver himself had appeared before the police. The accident report form Exh.66 which is by the inspector of motor vehicle, RTO, Ahmedabad also refers to the description in registration number of the vehicle bearing registration no. GJ-1 HA-6541. The charge-sheet is against the driver Alpesh Kishorbhai Thakkar, resident of Ahmedabad, Himalaya apartment who was arrested on 1.3.2007 as reflected in the charge-sheet Exh.67. The Tribunal has erred in not considering this major vital evidence on record. Even the eye-witness to the incident had examined himself. He has also explained under which circumstances the error had cropped up with regard to middle series of the vehicle. The learned Tribunal had unnecessarily laid down heavy burden on the claimants whereby all necessary evidence as well as evidence of the eye-witness who is also the complainant in the FIR was examined. Page 10 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023
NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined The learned Tribunal has failed to appreciate the judgment in the case of Moghiben (supra) where the Court is hereby directed to hold that the police having filed the charge-sheet against the driver of the vehicle concerned is a sufficient material to conclude that concerned vehicle was involved in the accident. Non-joinder of the driver could not be fatal to claim compensation since the driver and owner of the vehicle being joint tort feasors, they are jointly and severally liable to answer claim for the compensation and hence, can be sued jointly or severally. [9] The negligence of the driver is proved by the evidence on record and finally by the charge- sheet on record, the involvement of the vehicle bearing registration no. GJ-1 HA-6541 was proved by the claimants.
[10] The deceased was agricultural labourer. As per the evidence of the claimant no.1, she has Page 11 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined referred in the examination-in-chief that her husband was going with others on pilgrimage by foot and has stated that her husband was working on bore and was also having income from agriculture and animal husbandry and was looking after the family consisting of widow and 3 minors who are aged about 9, 7 and 5 at the time of filing of MACP no.141/2007. The income could not be proved by any documentary evidence. Thus, taking into consideration the minimum wages schedule on the date of the accident dated 18.2.2007, Rs.2,500/- is considered to be his income. The age of the deceased as reflected in the postmortem note is 40 years and therefore, 25% prospective rise in income is granted. Thus, the income would come to Rs.3,125/- (Rs.2,500/- + Rs.625/-). The dependents are four in number. Hence, there would be deduction of one-fourth amount as personal expenses which would be Rs.781/-. The dependency loss would be Page 12 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined Rs.2,344/-. Considering the age, multiplier of 15 would be applicable and thus, the annual dependency loss would be Rs.4,21,920/-. [11] 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 Page 13 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined husband-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection, 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 of the love, affection, care Page 14 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined 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."
[12] At the time of the accident, all the children were minor. The widow had filed the claim petition as a guardian of 3 minors. All would be entitled for consortium loss of Rs.40,000/- each. Thus, amount of Rs.1,60,000/- is granted under the head of consortium loss. As per the decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the claimants are entitled to compensation of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, the computation of Page 15 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined income is as under:-
Loss of dependency Rs.4,21,920/- Loss of consortium + Rs.1,60,000/-
Loss to estate + Rs. 15,000/-
Funeral expenses + Rs. 15,000/-
Total compensation = Rs.6,11,920/-
[13] In view of the above, the appellants would be entitled to total compensation Rs.6,11,920/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit the said amount within eight weeks from the date of receipt of writ of this Court.
[14] Out of aforesaid amount, 50% of the amount be invested in a Fixed Deposit with any nationalized Bank for a period of 3 years. After 3 years, the FDR amount be paid to the appellants without reference to this Court. The said amount be paid in the ratio of 70:10:10:10 to appellants no.1 to 4 Page 16 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023 NEUTRAL CITATION C/FA/4243/2022 JUDGMENT DATED: 14/09/2023 undefined respectively. Periodic interest on such Fixed Deposit shall be paid to the appellants in the ratio as laid down hereinabove and has to be given to the appellants without reference to this Court. Out of remaining 50% amount, appellant no.1 be granted 70% and 10% be granted to each appellants no.2 to 4. [15] 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 17 of 17 Downloaded on : Mon Sep 18 20:39:21 IST 2023