Gujarat High Court
Champaben Amarsinh Parmar vs Sarvarali Akbarali Pathan on 17 April, 2025
NEUTRAL CITATION
C/FA/787/2025 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 787 of 2025
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CHAMPABEN AMARSINH PARMAR & ORS.
Versus
SARVARALI AKBARALI PATHAN & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MASUMI V NANAVATY(9321) for the Defendant(s) No. 2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 17/04/2025
ORAL ORDER
1. The present First Appeal is filed by appellants- original claimants against the judgment and award dated 24.11.2021 passed by learned Motor Accident Claims Tribunal (Aux.), & 5th Additional District Judge at Anand in MACP No.241 of 2016, wherein learned Tribunal has partly allowed claim petition.
2. Heard learned advocate Mr.Nishit Bhalodi for appellants and learned advocate Ms.Masumi Nanvaty for Page 1 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025 NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined respondent No.2 - Insurance Company. Though served, none appeared for respondent No.1
3. Brief facts of the case are as under:
3.1 On 12.04.2016, deceased Amarsinh Dalpatsinh Parmar went to supply bricks at village-Bill by driving a truck bearing registration No.GJ-6-ZZ-2145 at a moderate speed and on left and correct side of the road. When he reached near Patia of village-Ambav, on Asodar-Anklav road, at that time, one cow suddenly came on the road and to save a vehicular accident, he suddenly applied brake and as a result, the truck gone road side ditch and dashed with a tree. Resultantly, deceased sustained serious injuries and was admitted in Anand Orthopedic Hospital, from there he was shifted to S.S.G.Hospital Vadodara.
Thereafter he was shifted to Civil Hospital, Ahemedabad. During the course of treatment, deceased succumbed due to accidental injuries.
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NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined 3.2 The legal heirs of deceased filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.19,00,000/-. Notices were issued. Opponent No.1-owner of truck was deleted from claim petition. Opponent No.2 - Insurance Company appeared and filed Written Statement at Ex.15. Claimant No.1 filed Examination-in-chief at Ex.19 and also produced documentary evidence such as FIR, Inquest Panchnama, Panchnama of place of incident, R.C.Book, licence of deceased, certificate income and other relevant documents. After considering the evidence, learned Tribunal partly allowed the claim petition awarding compensation of Rs.12,79,600/- alongwith interest @ 9% per annum from the date of petition till realization from opponent Nos.1 and 2.
3.3 Being aggrieved and dissatisfied with the impugned judgment and award, appellants - original claimants are before this Court for enhancement of Page 3 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025 NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined compensation.
4. Learned advocate for the appellants submitted that the compensation awarded by the learned Tribunal is not just and reasonable. It is submitted that deceased was driving a truck and as a cow suddenly came on road, he applied brakes to avoid an accident. As a result, truck veered off the road and dashed with a tree. It is further submitted that the deceased was aged about 33 years at the time of accident and was a skilled driver. The claimants have asserted that the deceased was employed with Safe Trading and was earning Rs.9,000/- per month. The owner of truck also issued a certificate stating that the deceased was receiving a salary of Rs.9,000/- per month. However, the learned Tribunal considered the income at Rs.6,000/- per month only. It is further submitted that in- come of deceased be considered at Rs.8,000/- per month. Page 4 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025
NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined 4.1 It is further submitted that while awarding compensation, learned Tribunal failed to grant any amount of compensation under the head of loss of consortium to which the claimants are entitled. Additionally,compensation awarded under the head of funeral expenses and loss of estate is not as per the settled propositions of law and claimants are entitled to higher amount than awarded by the learned Tribunal. Except the above submissions, no other submissions are canvassed by the learned advocate for the appellants.
5. Per contra, learned advocate for respondent No.2
- Insurance Company has supported the judgment and award and submitted that the income claimed by the claimants was not substantiated by any evidence. It is also stated that considering the age of deceased and in absence of any documentary evidence with regard to income, Page 5 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025 NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined learned Tribunal has awarded just and reasonable compen- sation.
6. I have considered the submissions and perused the record and proceedings. It appears from the record that deceased was aged about 33 years and was serving as driver of heavy commercial vehicle which requires skilled. The oral deposition of witness Ex.26 records that deceased was not on permanent payroll and was a daily wager. Looking at such evidence and considering the claim of claimants to assess the income at Rs.8,000/- per month instead of Rs.9,000/- per month income is assessed at Rs.8,000/- per month. Even the rates of minimum wages prevailing on date of accident is Rs.8,000/- per month. The law is settled with regard to the compensation under the head of loss of consortium, funeral expenses and loss of estate. Initially, there was five claimants i.e. widow, two minor children and parents of deceased. However, Page 6 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025 NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined during the pendency of clam petition, parents have passed away, therefore, claimants are 3 in numbers. However, while considering the question of loss of consortium and loss of dependency, relevant date is the date of application for compensation. Considering the age of children, who are aged about 5 and 6 years respectively and the age of widow, who was aged about 30 years, on the date of application, consortium amount is required to be con- sidered for 5 claimants and deduction of personal and liv- ing expenses is required to be considered at 1/4 th while determining the issue of loss of dependency.
7. In view of the aforesaid discussions, appellants - original claimants are entitled to following amount of compensation.
Under the Head of Compensation of Rs.
Future loss of income
Monthly income = Rs. 8,000/-
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NEUTRAL CITATION
C/FA/787/2025 ORDER DATED: 17/04/2025
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Prospective income 40%
(Rs.8,000 + 40%) = Rs. 11,200/-
Deduction 1/4
(Rs.11200 x 1/4 ) = Rs. 2,800/-
Total Income
[Rs.11,200-Rs.2,800/-]=Rs. 8,400/-
(Rs.8400 x 12 x 16) =Rs.16,12,800/- 16,12,800/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 2,42,000/-
(Rs.48,400 x 5 = Rs.2,42,000/-)
Funeral expenses 18,150/-
Grand Total 18,91,100/-
Less awarded amount of 12,79,600/-
compensation by Tribunal
Enhanced amount 6,11,500/-
(Rs.18,91,100 - Rs.12,79,600/-)= Interest @7.5%
8. The appellants-original claimants are entitled to enhanced amount of compensation of Rs.6,11,500/- @ 7.5% per annum from the date of claim petition till realization from Insurance Company. Page 8 of 10 Uploaded by MANOJ KUMAR(HC01092) on Fri May 09 2025 Downloaded on : Sat May 10 02:55:14 IST 2025
NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined
9. The Insurance Company is directed to deposit enhanced amount of compensation with interest as above within a period of Six Weeks from the date of receipt of this order. Upon such deposit, it will be open to the appellants to approach the learned Tribunal for appropriate orders for withdrawal. The learned Tribunal shall disburse the same after proper identification and verification following due procedure.
10. It is clarified that while condoning the delay, the Co-ordinate Bench of this Court has directed that the claimants shall not be entitled to interest on delayed period. While calculating the interest amount, claimants shall not be entitled to interest on delayed period of 999 days. The calculation of interest be done accordingly.
11. While making the payment, learned Tribunal/Court shall deduct the Court Fess, if not paid, in accordance with prevailing Rule.
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NEUTRAL CITATION C/FA/787/2025 ORDER DATED: 17/04/2025 undefined
12. Resultantly, the present First Appeal is partly allowed accordingly. The judgment and award dated 24.11.2021 passed by learned Motor Accident Claims Tribunal (Aux.), & 5th Additional District Judge at Anand in MACP No.241 of 2016, is modified to the aforesaid extent.
13. Record and proceedings, if any, received, be sent back to the concerned Court/Tribunal.
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