Legal Heirs & Rep. Of Decd. ... vs Gaurishanker Naranbhai Joshi ...

                                                                                  NEUTRAL CITATION




       C/FA/2447/2003                             ORDER DATED: 14/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2447 of 2003

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      LEGAL HEIRS & REP. OF DECD. PRAVINKUMAR NAGINDAS SHAH
                               Versus
         GAURISHANKER NARANBHAI JOSHI DRIVER & 4 other(s)
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1,1.1,1.2,1.3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 5
PRITHU PARIMAL(9025) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 4
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 14/09/2023
                       ORAL ORDER

1. Being dissatisfied with the quantum of compensation awarded by the MACT (Aux.), Surendranagar, legal heirs of the deceased - original claimants have filed present appeal, seeking enhancement of compensation.

2. The facts of accident and involvement of the vehicle are not in dispute. The deceased - Pravinbhai aged about 27 years old being a passenger of the S.T. Bus, met with an accident and died on the spot. Deceased was permanent employee of life insurance company serving at Vadodara. The original claimants i.e. widow, minor sons and mother had filed claim petition, claiming amount of compensation of Rs.10,00,000/- joining the owner and insurance company of both the vehicles. The claim Tribunal, vide its judgment and award passed in MACP No.204 of 1991, awarded Rs.6,50,000/- towards total amount of compensation.

NEUTRAL CITATION C/FA/2447/2003 ORDER DATED: 14/09/2023 undefined

3. The appellants being aggrieved with the amount awarded, have preferred the present appeal under Section 173 of the Motor Vehicle Act.

4. Mr.Kirtidev R. Dave, learned counsel appearing for the original claimants, has submitted that the judgment and award is contrary to the facts and law. The Tribunal while determining the total amount of compensation, came to a conclusion that the claimants are entitled for the amount Rs.10,53,220/-. However, considering the job offered to the widow on compassionate ground and granting other retiral benefits, did not award full amount of compensation and thought it fit to award only Rs.6,50,000/-. Thus, therefore, Mr.Dave, learned counsel submitted that the job offered to the widow is the policy of the LIC and it was offerred in terms of the service conditions receivable by the heirs after the death of the employee and therefore, the Tribunal could not have considered this aspect and reduced the amount of compensation which is otherwise the appellants are entitled to get from the respondents.

5. On the other hand, learned counsel Mr.Sunil Parekh, has supported the findings recorded by the learned Tribunal and submitted that the advantage received by the legal heirs, has been rightly considered by the Tribunal while determining the just and equitable amount of compensation. He would further submit that the salary of deceased was Rs.2903.66 paisa and considering the judgment of the Apex Court (Sarla Verma and Pranay Shetty), the claimants are entitled for the amount of compensation, however, the Tribunal erred in taking into Page 2 of 5 Downloaded on : Sat Sep 16 17:12:54 IST 2023 NEUTRAL CITATION C/FA/2447/2003 ORDER DATED: 14/09/2023 undefined consideration the prospective salary of Rs.8,669/- and therefore, the view taken by the Tribunal is reasonable and in consonance with the settled principles of law which does not require interference by this Court.

6. Having heard learned advocates for the respective parties and on perusal of the judgment and award, the issue arose for determination is whether the amount deducted by the Tribunal on account of pecuniary advantage and the appointment of the widow on compassionate ground is sustainable in law or not.

7. In the facts of present case, the deceased was serving with LIC and had joined as an Assistant and his last monthly salary was Rs.2903.66 paisa. The Tribunal while determining the dependency loss has considered the oral evidence of the department and documentary evidence (Exhs.98, 99 and 127 to 130), had taken into account average salary Rs.8,669/- as a prospective income and after deducting 1/3rd and applying the multiplier of 15, awarded total amount of compensation Rs.10,53,220/-. The Tribunal after considering the evidence of the widow came to a conclusion that in view of the compassionate appointment and other benefits, the full amount should not be granted and reduced it upto Rs.6,50,000/-. In these background facts, this Court is of the considered view that the findings for reduction of the amount of compensation are erroneous and against the settled principles of law as propounded by the Apex Court in its various judgments. In the case of Vimal Kanwar Vs. Kishor Dan (2013 ACJ 1441), after referring to the judgment in Helen C. Rebello Vs. Page 3 of 5 Downloaded on : Sat Sep 16 17:12:54 IST 2023 NEUTRAL CITATION C/FA/2447/2003 ORDER DATED: 14/09/2023 undefined Maharashtra State Road Transport Corporation (1999 ACJ

10) was pleased to observe that the family pension is earned by an employee for the benefit of family in the form of his contribution in the service in the terms of the service conditions receivable by the heirs after his death. It was further observed that the heirs received family pension even otherwise, than the accidental death. With these observations, it was held that the family pension and other benefits are not deductible by terming it as "pecuniary advantage liable for reduction" in a compensation of motor vehicle accident claim.

8. In light of the settled law and considering the peculiar facts and circumstances of present case, the compassionate appointment of the widow and other retiral benefits being given as a part of service conditions, receivable by the heirs of the deceased and therefore, the benefit which is otherwise statutory available cannot be deducted from the amount of compensation for which the respondents are liable.

9. The contentions of the Insurance Company cannot be accepted. The Insurance Company has not challenged the action of the Tribunal in taking into consideration the average salary and therefore, in the appeal filed by the claimants, the said contentions cannot be acceptable and considered.

10. For the reasons recorded, the findings of the Tribunal are perverse and arbitrary and accordingly, the findings for reduction of the amount is set aside. The claimants are entitled for the enhanced amount Rs.4,03,220/- and Page 4 of 5 Downloaded on : Sat Sep 16 17:12:54 IST 2023 NEUTRAL CITATION C/FA/2447/2003 ORDER DATED: 14/09/2023 undefined accordingly, the appeal is allowed in part. The respondents shall deposit the said amount, within a period of two months with running interest at the rate of 6%. The claim Tribunal shall disburse the amount to claimants as per the judgment and award. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh Page 5 of 5 Downloaded on : Sat Sep 16 17:12:54 IST 2023