NEUTRAL CITATION
C/FA/2769/2010 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2769 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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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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BORGYARI RIMALBHAI THANESHWAR
Versus
AMITBHAI KALABHAI DESAI & 2 other(s)
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,1.1,1.2,1.3
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/09/2023
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 12.4.2010 passed by the learned Motor Accident Claims Tribunal (Aux.), Mehsana in Motor Accident Claims Petition no.272 of 2006 for claiming Page 1 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined compensation of Rs.5 lacs on account of accidental death of Mr. Borgyari Rimalbhai Thaneshwar.
2. The facts in brief leading to filing of this appeal are as under:
2.1 On 16.11.2005, the deceased was going in a Metador bearing no.GJ-2Y-2261 from Santej to Mehsana via Kadi. The deceased was doing the service as a delivery boy of gas cylinders. On 16.11.2005, the opponent no.1 drew the Metador in a rash and negligent manner and the said Metador was turned turtled and resultantly Rimal succumbed. It is the case of original claimant that the deceased was 23 years of age and was earning Rs.3,000/- per month by working at Parth Enterprise as a cleaner. Original applicant nos.1 and 2 are the parents of deceased and original applicant no.3 is the brother of the deceased. The notice and summons of the petition were served to the original opponents, Page 2 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined however, original opponent nos.1 and 2 i.e. the owner and driver of the Metador no.GJ-2Y-2261 chose not to file any written statement. The insurance company filed its written statement vide Exh.15 inter alia contending that the petition is not maintainable and prayed for dismissal of the claim petition. Issues were framed by the learned tribunal vide Exh.16. The petitioners produced documentary evidence and also led evidence. The brother of the deceased Mr. Borgyari Nirmal Thaneshwar was examined vide Exh.20. Owner of Parth Enterprise, Mr. Manu Govind Patel was also examined at Exh.33.
3. After considering the oral as well as documentary evidence, the learned tribunal awarded total compensation at Rs.1,20,000/- with interest @ 7.5% from the date of filing of claim petition till its realization. The bifurcation is as under:
Rs.1,08,000/- Towards loss of dependency Page 3 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined Rs.10,000/- Towards love and affection & Rs.2,000/-Towards Funeral expenses.
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Rs.1,20,000/-. TOTAL
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4. Being aggrieved and dissatisfied with the impugned judgment and award, the original applicants i.e. the present appellants have preferred this appeal mainly on the grounds mentioned in the memo of the appeal.
5. Heard learned advocate Mr. Mehul Sharad Shah for the appellants and Mr. Mandeep Singh Saluja for the respondent no.3 - Insurance Company. Perused the record.
6. The learned advocate Mr. Mehul Sharad Shah for the appellants has submitted that the deceased was going in a Metador of his master i.e. employer Page 4 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined bearing registration no.GJ-2Y-2261 for the delivery of gas bottles and when the Metador reached near the place of accident, one truck came from opposite direction in full speed. Resultantantly, opponent no.1 while taking Metador on one side of the road, turned turtled. The deceased sustained injuries and succumbed to the said injuries. The deceased was 23 years of age and was earning Rs.3,000/- per month by working as a cleaner with Parth Enterprise i.e. opponent no.2. It is further contended that the learned tribunal has erred in considering the monthly income to the tune of Rs.2,000/-. It is further submitted that though the salary slip (Exh.34) was produced and the employer of the deceased was examined by the original petitioners, the income of the deceased was not considered @ Rs.3,000/- per month. As per the salary certificate as well as the oral evidence of the employer, the deceased was earning Rs.3,000/- per month. It is also the case of the appellants that there was no reason to disbelieve Page 5 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined the fact that the deceased was not earning Rs.3,000/- per month. It is further submitted that while considering the actual monthly income of Rs.3,000/-, the learned tribunal ought to have considered the prospective income of the deceased @ Rs.4,500/- per month (Rs.3,000/- + Rs.6,000/- = Rs.9,000/- / 2 = Rs.4,500/-). The learned advocate for the appellants also submitted that the learned tribunal has not considered the age of the deceased but has considered the age of the petitioner nos.1 and 2 for the purpose of applying multiplier. The learned tribunal, as per the contentions of the learned advocate for the appellants has applied the multiplier of 9, instead of 18 and deducted 2/3 amount towards personal and living expenses of the deceased which is not as per the settled principles. Learned advocate for the appellants have also submitted that the learned tribunal has not considered the compensation under the head of consortium. The funeral expenses awarded is also Page 6 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined less. The appellants have prayed for additional compensation of Rs.2 lacs with interest @ 12% p.a. by way of the present appeal.
7. The learned advocate for the appellants has relied upon the following decisions in support of his contentions:
(a) Sarla Verma v. Delhi Transport Corporation reported in 2009(6) SCC 121
(b) Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram and others reported in 2018(18) SCC 130
(c) Nagappa v. Gurudayal Singh reported in 2002 (O) AIJEL - SC 18864)
(d) Harpreet Kaur and others v.
Mohinder Yadav reported in AIR 2023 SC 111 & Page 7 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined
(e) Amrit Bhanu Shali v. National Insurance Co. Ltd. reported in 2012(11) SCC 738.
8. The learned advocate for the appellants has submitted that looking to the age of the deceased and since the deceased was unmarried, his salary has to be computed @ Rs.3,000/- + Rs.1,500/- = Rs,4,500/=, 1/3rd deduction = Rs.3000 x 12 = Rs.36000 x 18 = Rs.6,48,000/-). Over and above Rs.6,48,000/- under the head of loss of income, the learned advocate for the appellants has prayed for Rs.1,20,000/- (Rs.40,000/- x 3) under the head of loss of consortium for 3 appellants and Rs.15,000/- towards funeral expenses. Thus, as per the say of the learned advocate for the appellants, the total amount comes to Rs.7,83,000/-. The appellants, thus have claimed as total to Rs.6,63,000/- (Rs.7,83,000/- - Rs.1,20,000/- = Rs.6,63,000/-) + interest @ 7.5% p.a. from the date of claim petition till its realization. Except these no other submissions are placed for Page 8 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined consideration.
9. Per contra, learned advocate Mr. Mandeep Singh Saluja for the respondent no. 3 - insurance company has vehemently objected to the contentions and submissions raised by the appellants and mainly contended that the judgment and award passed by the learned tribunal is in consonance with the law and the evidence on record. He has further submitted that the income assessed by the learned tribunal is legal and there is no requirement of interference in the findings of the fact. He has further contended that the salary of the deceased is rightly determined @ Rs.2,000/- per month instead of Rs.3,000/-. He has further contended that the evidence of the employer Mr. Manubhai Hargovandas is not believable as the employer has not produced any books of account or vouchers in support of the certificate issued by them. Salary certificate (Exh.34) is not a reliable evidence for determining the income Page 9 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined of the deceased. The learned advocate for the respondent has submitted that in absence of any cogent and reliable documentary evidence qua salary, as per minimum wages chart for the semi skilled worker, the income is to be assessed @ Rs.2,300/- per month. Since the deceased was working as a cleaner, his salary could be assessed @ Rs.2,300/- per month and looking to the age of the deceased at the time of accident and his marital status, prospective income @ 40% can be taken into consideration. Thus, the contention of the learned advocate for the respondent is, for determining the compensation, the basic salary can be considered @ Rs.2,300/- + Rs.920/- = Rs.3,220/-. Since the deceased was unmarried, only parents are considered as dependents, hence, 1/2 to be deducted for personal living which comes to Rs.1,610/- X 12 = Rs.19,320/- X 18 = Rs.3,47,760/- Adding consortium of Rs.80,000/- for 2 dependents i.e. parents only and Rs.15,000/- towards funeral Page 10 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined charges, the total amount comes to Rs.4,42,760/- with interest @ 7.5% p.a. While deducting Rs.1,20,000/- as awarded by the learned tribunal, the enhanced amount can be Rs.3,22,760/-.
10. So far as the quantum is concerned, it is necessary to consider the salary which the deceased was drawing at the time of death. The original petitioners have produced the salary certificate issued by Parth Enterprise and on perusal of the same, it transpires that the deceased was employed as a cleaner and was drawing the salary of Rs.3,000/- per month. It is needless to observe that so far as the petitions under Motor Vehicles Act, 1988 are concerned, strict proof of Evidence Act is not to be considered. In the present case, the salary certificate is produced and even the employer was also examined. Hence, there is no reason to disbelieve the documentary as well as oral evidence so far as income of the deceased is concerned. Hence, so far as the salary is concerned, Page 11 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined the learned tribunal has erred in assessing the salary of Rs.2,000/- instead of Rs.3,000/- per month.
11. So far as dependency is concerned, the original claimant no.3 Mr. Borgyari Nirmal Thaneshwar, the brother of the deceased cannot be considered as a dependent for the reason that in the claim petition, he has been shown as doing service in the cause title of the petition. In the affidavit in lieu of examination in chief filed under Order 18 Rule 4 of the Code of Civil Procedure, the said Mr. Borgyari Nirmal Thaneshwar has mentioned "Occupation: service". Thus, it is an admitted position on record that the claimant no.3 was not dependent and was doing the service at the relevant time also. Thus, I am of the view that so far as dependency is concerned only appellant nos.1 and 2 are considered for determining the deduction towards personal and living expenses and for the application of multiplier, Hon'ble Apex Court in the case of Sarla Verma (Supra), the Page 12 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined Hon'ble Apex Court in paragraph nos.14, 15 and 19 held as under:
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living Page 13 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and Page 14 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one- third and contribution to the family will be taken as two-third."
19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier Page 15 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years)"
In the aforesaid decision, the Hon'ble Apex Court has observed that in the case of a bachelor, the claimants are the parents, 50% is deducted as personal and living expenses. It is further observed by the Hon'ble Apex Court that in absence of evidence to the contrary, brothers and sisters will not be considered as dependents because they will either be independent and earning, or married, or be dependent on the father. In the present case, the deceased was bachelor and number of dependent family members are two, hence, 50% deduction from the income is considered.
12. In the case of Magma General Insurance Co. Ltd.
(Supra), the Hon'ble Supreme Court in paragraph Nos.21.3 and 22 observed as under: Page 16 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023
NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined "21.3 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.
22. 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 Page 17 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined the love, affection, care and companionship of the deceased child." In the aforesaid decision, the Hon'ble Apex Court has observed that it is the right of the parents to get the compensation under `Filial Consortium' and the amount awarded to the parents is a compensation for loss of love, affection, care and companionship of the deceased child. Thus, the appellant nos.1 and 2 are entitled to Rs.40,000/- each under the head of consortium.
13. Since the deceased was aged about 23 years, multiplier of 18 as per the decision rendered in the case of Sarla Verma (Supra) to be applied and hence the multiplier of 18 shall be applied in the present case.
14. The next question for consideration is whether the claimant is entitled to more amount of enhanced compensation when the appellants have prayed for Page 18 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined Rs.2,00,000/- as additional compensation with interest @ 12% p.a. in the present appeal.
15. The learned advocate for the appellant has relied upon the case of Nagappa v. Gurudayal Singh (Supra), the Hon'ble Supreme Court in paragraph no.21 observed as under:
"21. For the reasons discussed above, in our view, under the M.V.
Act, there is no restriction that
Tribunal / Court cannot award
compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section Page 19 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition."
The Hon'ble Apex Court has held that there is no restriction that the Court cannot award compensation amount exceeding the claimed amount. The Court can award "just compensation" which is reasonable on the basis of evidence produced on record. In the present case, the appellants have proved by leading documentary as well as oral evidence that the deceased was earning Rs.3,000/- per month. In view of this fact, on the concept of just and reasonable compensation, the appellants can claim more amount than claimed in the claim petition.
16. In the case of Harpreet Kaur (Supra), wherein the Page 20 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined tribunal did not award consortium, however, the High Court enhanced the claim under the head of consortium and the Hon'ble Supreme Court even further enhanced compensation under the head of `Filial Consortium'.
17. The learned tribunal while applying the multiplier, has erred in considering the age of the parents. While applying the principle of the multiplier, the age of the deceased to be considered and not of the dependents. This view is fortified in the decision of Amrit Bhanu Shali (Supra), wherein, in paragraph no.17, the Hon'ble Apex Court has observed as under:
"17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of Page 21 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023 NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined compensation.
18. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.
19. In view of above discussions, the appellants are entitled to the following amount as enhanced compensation under the different heads: Page 22 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023
NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined Sr. Name of the Head Compensation No. Amount (In Rs.) 1 Future loss of dependency 4,53,600/-
(Rs.3000+1200 (40%) = Rs.4,200 - Rs.2100/- (50%) = Rs. 2,100/- ; Rs.2100 x 12 x 18 = Rs.4,53,600/-)
2. Loss of consortium of two 80,000/-
dependents
3. Funeral expenses 15,000/-
Total Compensation of 5,48,600/- (-) Awarded Amount Rs.1,20,000/-Enhanced Amount Rs.4,28,600/-
20. Therefore, total amount of compensation would come to Rs.5,48,600/-, which is required to be awarded with 7.5% p.a. interest from the date of claim petition till its realisation, which would meet the ends of justice. It is noted that the Tribunal has awarded Rs.1,20,000/- to the claimant, therefore, Rs.4,28,600/- (Rs.5,48,600/- - Rs.1,20,000/-) is required to be enhanced with 7.5% p.a. interest.
21. For the reasons recorded above, the following order is passed:
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NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined 21.1. The present appeal is allowed in above terms.
21.2. The Insurance Company is directed to deposit the enhanced amount Rs.4,28,600/- with 7.5% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
21.3. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimants, by account payee Cheque, after proper verification and after following due procedure. 21.4. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with Rules / Law.
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NEUTRAL CITATION C/FA/2769/2010 JUDGMENT DATED: 25/09/2023 undefined 21.5. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(D. M. DESAI,J) VATSAL Page 25 of 25 Downloaded on : Mon Sep 25 20:46:53 IST 2023