Gujarat High Court
Mukeshbhai Bhathibhai Parmar vs Komendrasinh Pradipsinh Bihol on 13 February, 2025
NEUTRAL CITATION
C/FA/3853/2024 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3853 of 2024
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MUKESHBHAI BHATHIBHAI PARMAR & ANR.
Versus
KOMENDRASINH PRADIPSINH BIHOL & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
NOTICE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/02/2025
ORAL ORDER
Being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claim Petition No. 84 of 2021 dated 08/02/2024 by the learned Motor Accident Claim Tribunal, the appellants preferred this appeal whereby the learned tribunal has awarded compensation of Rs.8,85,780/- with interest @ 7.5% and cost to be held liable to the opponents.
2. The brief facts of the case are that while the son of the org. applicants was driving motorcycle bearing Registration No.GJ.09.AL.7453 at slow speed on the right side of the road. At about 11:00 a.m., when he reached near bridge of Vatrak River, opposite Gurudev Cold Storage, on the road of Bayad-Modasa, at that time, opponent no.1 came by driving the S. T. Bus bearing Registration No.GJ.18.Y.2428, owned by opponent no.2, with full speed and in rash and negligent manner and dashed with motorcycle of son of applicant nos.1 and 2. On account of this accident, the deceased had sustained grievous injuries and died on the spot.
Page 1 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025 NEUTRAL CITATION C/FA/3853/2024 ORDER DATED: 13/02/2025 undefined 2.1 The claim petition was filed seeking compensation of
Rs.12,50,000/- and the learned tribunal after considering the evidence on record awarded the compensation as recorded in paragraph 1 of this judgment.
3. Heard learned advocate for the parties.
4. Learned Advocate Mr.Bhalodi for the appellant - org. claimants submitted that considering the oral evidence of the widow of the deceased the tribunal has not taken up the income of the deceased properly as the deceased was engaged in agriculture and masonry and was earning Rs.8,500/- per month. He would submit that appeal is limited to the aspect of taking appropriate income factor. He would further submit that the tribunal ought to have considered the prospective income of the deceased. He would further submit that tribunal has granted very low amount for loss of consortium whereas there are two persons dependents of the deceased and therefore it is required to be enhanced. He would further submit that tribunal committed error in granting very low amount for loss of estate and funeral expenses which is on lower side and therefore in view of decision in case of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680], the compensation granted under the non-pecuniary head is required to be increased.
4.1 By making above submissions, he would submit to enhance the compensation awarded by the tribunal.
5. Learned advocate Mr.Karia for respondents would submit that the tribunal ought to have adopted the rate of minimum wage prevailing at the time of accident as the basis of income of the deceased at Rs.6,000/- in absence of producing any documentary evidence to assess just and fair Page 2 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025 NEUTRAL CITATION C/FA/3853/2024 ORDER DATED: 13/02/2025 undefined compensation. As far as other non-pecuniary head is concerned, he would concede the same and urge to pass appropriate order.
6. Having heard the learned advocates appearing for the respective parties and examining the records and proceedings minutely and evidence on record, it could be noticed that deceased lost his life in a vehicular accident and at the relevant time he was the only bread winner of the family survived by parents. Since the alone bread winner of the family has lost his life, the entire family will ruin and would in lurch to maintain itself. Thus, the tribunal ought to have considered the income of the deceased rationalizing the rate of minimum wage to arrive at the dependency loss. To be noted that, deceased was survived by aged parents and considering the maintenance of family Rs.8,500/- would be just and fair income to be considered to assess the dependency loss. It would be worth to mention that looking to the work with which the deceased was involved and in absence of of evidence to have continuous source of income of the deceased 40% rise in his income is granted in view of decision in case of Pranay Shethi (supra). Since the number of dependents are more the one-forth deduction towards the personal and pocket expenses is required to be granted.
7. In United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur And Ors. [AIR 2020 SUPREME COURT 3076] the Apex Court has recognized as to grant or approve the compensation for loss of consortium to each member of the deceased. In the present case, tribunal has granted Rs.44,000/- as global amount for loss consortium, lost to estate and funeral and obsequies expenses. Here in the present case, deceased was survived by his parents, spouse and two minor children. Due to death of deceased each of the family member met with the loss and thus the loss of consortium for parental is required to be Page 3 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025 NEUTRAL CITATION C/FA/3853/2024 ORDER DATED: 13/02/2025 undefined granted and it is according granted at Rs.48,400/- each for family member of the deceased. The tribunal has also not granted any separate amount for loss of estate and funeral expenses which as per the decision in case of Pranay Sethi (supra) is granted at Rs.18,150/- each. To be noted that, insofar as the negligence aspect is concerned, there is no dispute on the said aspect and therefore said finding as held by the tribunal is confirmed.
8. In Kavita Balothiya vs. Santosh Kumar [2024 (0) ACJ 1639] the Hon'ble Apex Court has held that no restriction upon the Court to award compensation exceeding the amount claimed and it is the duty of the tribunal or Court under Section 168 of the MV Act, to award just compensation. Paragraph 5 and 6 thereof reads thus:
"5. Learned counsel for the appellants has brought to our notice the decision of this Court in Mona Baghel &ors. vs. Sajjan Singh Yadav & Ors. in (Civil Appeal @ out of SLP(C) NO.29207/2018 wherein the Court has observed as under:
"The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value.
Our view, is fortified by the decision of this Court in the Case of Ramla and Others Versus National Insurance Company Limited and Others 2019 2 SCC 192, wherein, it is held as under:
"Though the claimants had claimed a total compensation of Rs.25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable Page 4 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025 NEUTRAL CITATION C/FA/3853/2024 ORDER DATED: 13/02/2025 undefined on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty-bound to award just compensation. (See the Judgments of this Court in (a) Nagappa v. Gurudayal Singh,
(b) Magma General Insurance Co. Ltd. v. Nanu Ram, (c) Ibrahim v. Raju)"
6. The above decision clearly lays down that there is no restriction upon the court to award compensation exceeding the amount claimed. It is the duty of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) to award just compensation. Since the Act is a beneficial legislation a just compensation is one which is fair and reasonable on the basis of the evidence adduced irrespective of the amount claimed."
9. In Chandra Mani Nanda vs. Sarat Chandra Swain & Anr., [2024 INSC 777] the Hon'ble Apex Court has again reiterated the ratio that it is the duty of the Court to assess the fair compensation and in paragraph 20 has held as under:
"20. An argument is raised by learned counsel for the insurance company that the appellant has initially claimed a sum of 230,00,000/- and since the same having been awarded to him by the High Court, no further enhancement is possible. We cannot accept this argument and it is duly rejected. It is a settled proportion of law, that the amount of compensation claimed is not a bar for the Tribunal and the High Court to award more than what is claimed, provided it is found to be just and reasonable. It is the duty of the Court to assess fair compensation. Rough calculation made by the claimant is not a bar or the upper limit. Reference in this regard can be made to the judgment of this Court in the case of Meena Devi vs. Nunu Chand Mahto".Page 5 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025
NEUTRAL CITATION C/FA/3853/2024 ORDER DATED: 13/02/2025 undefined
10. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of Dependency: 12,85,200/-
(Rs.8,500/- Income (-) one-half towards personal and pocket expenses (+) 40% future prospect (x) 12
(x) 18 (multiplier).
Loss of consortium (Rs.48,400/- x 2) 96,800/-
Loss of Estate & Funeral Expenses 36,300/-
(Rs.18,150/- each)
Total 14,18,300/-
Less negligence of 10% 1,41,830/-
Net Amount 12,76,470/-
Already awarded by the tribunal 8,85,780/-
Enhanced amount of compensation 3,90,690/-
11. In wake of above, I hold that all the opponents are jointly and severally liable to pay the compensation to the claimants and claimants are entitled to get the total amount of compensation of Rs.12,76,470/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
12. For the foregoing reasons, the appeal filed by the appellant is partly allowed. The opponents are held liable to pay the compensation of enhanced amount of Rs.3,90,690/- with interest at the rate of 7.5% from the date of filing of the petition till its realization. The opponents are directed to deposit the amount of compensation with interest and costs within six weeks from today as per the ratio decided by the tribunal.
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13. Upon such deposit, 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 / NEFT / RTGS, after proper verification and after following due procedure and as per the fresh apportionment fixed by the tribunal in case any of the claimant is reported to be expired..
14. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. If order of apportionment is not made by the tribunal, it shall be made while disbursing the amount of compensation.
15. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 7 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:07 IST 2025