Gujarat High Court
Shailesh Chimanlal Macwan Since Decd. ... vs Makram Shekhmal Pavar on 6 February, 2025
NEUTRAL CITATION
C/FA/3488/2009 ORDER DATED: 06/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3488 of 2009
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SHAILESH CHIMANLAL MACWAN SINCE DECD. THROUGH HEIRS &
ORS.
Versus
MAKRAM SHEKHMAL PAVAR & ORS.
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Appearance:
MR HABIB K SHAIKH(1603) for Appellant No. 1,1.1,1.2,1.3,1.4,1.5,1.6
MR NAGESH C SOOD(1928) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - original claimants being aggrieved and dissatisfied with the judgment and award dated 13.12.2007 passed by the Motor Accident Claims Tribunal, Ahmeabad in Motor Accident Claim Petition No.380 of 2001.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 18.08.1998, deceased Shailesh was driving his Kinetik Honda scooter No.GJ-1-FF-1617 along with his friend as pillion rider and proceeding towards Aslali. When they reached near the place of accident, one Tata Goods Truck No.GJ-5-V-344 driven by opponent No.1 came in rash and negligent manner and dashed with the scooter of the deceased and upon occurrence of the accident, deceased sustained fatal injuries and later on died.Page 1 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025
NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined
3. Learned advocate Mr.Habib Shaikh for the appellants is absent. Appellant No.6 Ilaben C. Macwan pursuant to notice issued to her, is present in the Court. In peculiar facts of the case, she requested to decide the appeal on merit. Thus, learned advocate Mr.Nishit Bhalodi is requested to assist the Court on behalf of the claimants in the capacity of Amicus Curiae.
4. Learned advocate Mr.Bhalodi for the appellants - claimants has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He would submit that learned Tribunal ought to have considered that deceased was earning Rs.4,000/- per month at the time of road accident as he was working as Computer Operator with Fairdeal Management Services Private Limited and certificate to that effect was also issued by Director of the said company. He would submit that two witnesses are also examined to establish that deceased was earning Rs.4,000/- per month, yet learned Tribunal erred in taking income of deceased at Rs.3,000/- per month including loss of future prospects. He would further submit that the amount of compensation under non-pecuniary heads are also required to be rationalized in view of judgment of Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi - 2017 (16) SCC 680. Upon above submissions, he would submit to allow this appeal.
5. Against the submissions of learned advocate Mr.Bhalodi, learned advocate Mr.Nagesh Sood for respondent - Insurance Company submits that in absence of evidence of income of deceased, learned Tribunal was required to take rate of Page 2 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025 NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined minimum wage at the time of road accident which was Rs.1,700/-. But learned Tribunal has taken Rs.3,000/- per month which is on higher side. He would refer to finding of learned Tribunal in para 10 of impugned judgment and award to submit that learned Tribunal while assessing income of deceased assessed loss of future prospects and therefore, such finding of learned Tribunal need not be disturbed by allowing this appeal. For other non-pecuniary heads, he would submit to pass necessary orders.
5.1 Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to Page 3 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025 NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.
6. I have heard learned advocate Mr.Nishit Bhalodi who is Amicus Curiae and learned advocate Mr.Sood for the Insurance Company. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the learned Tribunal. From the record, it transpires that for the accident which took place on 18.08.1998 whereby deceased Shailesh was riding Kinetik Honda scooter No.GJ-1-FF-1617 was dashed by Tata Goods Truck No.GJ-5-V- 344 driven by opponent No.1. Due to the accident, the deceased sustained severe injuries and succumbed to the injuries leaving behind his four sisters and parents. Learned Tribunal in the impugned judgment and award assessed income of deceased at Rs.3,000/- including future prospects. On perusal of the evidence what could be noticed that occurrence of road accident, death of deceased out of road accident and issue of negligence of driver of truck are no more at dispute. The claimants have produced evidence that deceased was working as Computer Operator with Phillips India Private Limited and was earning Page 4 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025 NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined Rs.4,000/- per month by producing pay-slip at Exhibit-38. One One Mr.Ravindran Karshanlal was examined at Exhibit-39 to prove that deceased was earning income as LIC agent. The claimants have produced insurance commission slip at Exhibit-
40. Another witness Shishilbhai gave deposition at Exhibit-43 who was co-employee working as Computer Operator. He buttresses the fact of deceased working as Computer Operator. From the above, it appears that learned Tribunal committed error in taking income of decease at Rs.3,000/- including loss of future prospects. Thus, this Court fix the income of deceased to Rs.3,000/- per month and since deceased was in his thirties, in view of judgment of Hon'ble Supreme Court in case of Pranay Sethi (supra), 40% rise to his income has been given towards loss of future prospects. 1/2 shall be deducted towards personal and pocket expenses of deceased and multiplier of 17 would be applied as per judgment of Pranay Sethi (supra). Further, considering the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the general and non-pecuniary damages, Rs.18,150/- each towards loss of estate and funeral expenses should be awarded. Towards loss of consortium, there are two dependents and therefore, Rs.48,400/- to each dependent should be awarded as per the decision of the Hon'ble Apex Court in the case of United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780.
6.1 Therefore, total compensation would be as under, which the claimants/s is/are entitled to get.
Page 5 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025 NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined Particulars Amount (Rs.) Future dependency Loss 4,28,400/- =Rs.3,000/- + Rs.1200/- (40% rise) =Rs.4200/- minus 1/2 for Personal exp. =Rs.2100/- x 12 months x 17 Multiplier Loss of Estate 18,150/- Funeral expenses 18,150/- Consortium (Rs.48,400/- x 2 dependents) 96,800/- Total 5,61,500/- Less: Amount which is already awarded 1,42,000/- Additional amount which is awarded 4,19,500/-
7. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs.4,19,500/- with 7.5% p.a. interest from the date of filing the claim petition till its realization, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
7.1 Before parting with the judgment, this Court puts a word of appreciation for the assistance provided by learned advocate Mr.Nishit Bhalodi as Amicus Curiae.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order.
Page 6 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025 NEUTRAL CITATION C/FA/3488/2009 ORDER DATED: 06/02/2025 undefined 8.3 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 claimantss, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 7 of 7 Uploaded by GAURAV J THAKER(HC00951) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:37:56 IST 2025