Gujarat High Court
Triveniben Wd/O Shyamgar Harigar vs Not Known on 16 September, 2025
NEUTRAL CITATION
C/FA/119/2014 JUDGMENT DATED: 16/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 119 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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TRIVENIBEN WD/O SHYAMGAR HARIGAR & ORS.
Versus
NOT KNOWN & ORS.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4,5
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2,4,5
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 16/09/2025
ORAL JUDGMENT
1. The present appeal arises from the judgment and award dated 11.10.2003 passed by the learned Motor Accident Claims Tribunal (Aux.), Bhuj-Kachchh.
2. Vide the impugned judgment and award, the Tribunal was pleased to pass an order of compensation to the heirs of the deceased- applicant to the tune of Rs. 3,39,200/- along with an interest at the rate of 7.5% per annum, recoverable Page 1 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined from the original opponent nos. 1 to 3, jointly and severally. The said opponents are the present respondent nos. 1 to 3.
3. The accident in question allegedly, had occurred on 06.04.2001. One Shyamgar Harigar Gosai, was traveling, with goods pertaining to his profession in a delivery van bearing registration no. GQY 5161. The vehicle was of the ownership of respondent no.4 (original opponent no.4) and was being driven by respondent no.5 (original opponent no.5). However, a Truck bearing registration no.GJ-12-U- 7900, being driven negligently and rashly, collided with the said van. In the resultant accident, the said Mr. Shyamgar Gosai sustained injuries and ultimately lost his life. The said Mr. Shyamgar Harigar Gosai shall hereinafter be referred to as "the deceased".
4. The challenge to the impugned judgment and award is only on the ground of quantum of compensation. No other appeal has been preferred by the other opponents of the original proceedings, including the Insurance Company concerned.
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5. It was submitted by the learned advocate Mr. Mohsin Hakim appearing for the appellant that the accident had happened on 06.04.2001. It was submitted that the Tribunal, has erred in not considering the income of the deceased in terms of the pleadings in the claim petition, namely, the income to the tune of Rs.5,000/- to Rs.6,000/- per month. It was submitted to that effect, the certificate of Sarpanch was adduced on record. It was submitted however, that the Tribunal, considering that the Sarpanch, in the Year-2011, could not have issued a certificate in respect of the income of the deceased in the Year-2001, deemed such certificate as not reliable. It was submitted that thereafter, taking a notional income of Rs.2,000/-, the said compensation was computed. It was submitted that the affidavit of examination-in-chief at Exhibit-44 of one Triveniben Shyamgar Gusai may be considered. On perusal of the cross-examination of the said deponent - Triveniben Shyamgar Gusai, it would be clear that the even the opponent no.3 - Insurance Company (present respondent no.3) has admitted the income of the deceased at Rs.5,000/- to Rs.6,000/- and has suggested that sometimes, the applicant would even earn Rs. 4,000/- to Page 3 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined Rs.5,000/-. Thus, it was submitted that even if the mean of the aforesaid values i.e., from Rs.4,000/- to Rs.6,000/-, is considered, the same would be to the tune of Rs.5,000/-. It was submitted that such income may kindly be considered for the purpose of enhancing the compensation to the appellants. It was submitted that the Tribunal has also erred in not granting any prospective income. It was submitted that appropriate prospective income in terms of the applicable law may kindly be awarded. Thereafter, he has drawn attention of this Court that indeed the Tribunal was right in considering the deduction of 1/4th income and on this count there is no dispute. However, it was submitted that the amounts awarded under the heads of loss of estate, pain, shock and suffering and for funeral expenses are abysmally low in as much as they are respectively adjudged at Rs.15,000/-, Rs.15,000/- and Rs. 5,000/-. It was thus submitted that in line of the contentions advanced, the compensation awarded to the heirs of the deceased may kindly be awarded. It was submitted that even the rate of interest awarded by the Tribunal is at 7.5% per annum and that the same may kindly be enhanced to 9% per annum more so, when the Page 4 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined accident is of the year-2001 and the enhanced compensation is being accessed after a period of approximately 24 years.
6. The learned advocate for the respondent- Insurance Company has vehemently opposed the present appeal. It was submitted that the profession of vegetable vendor of the deceased, as pleaded by the claimants, was an eyewash. There is no evidence whatsoever that the said deceased had any agricultural lands or that he was growing such vegetables on such land. It was submitted that merely asserting that vegetable vendor was doing such business and had been earning preposterously high amount, to the tune of Rs.5,000/- to Rs.6,000/- a month, is not believable. It was submitted that even if the minimum wages of the relevant period were taken into consideration, then too, the monthly income of the deceased would be to the tune of approximately Rs.2,100/-. It was thus submitted that retaining a notional income of Rs.2,000/- as assessed by the Tribunal, would be appropriate in the facts of the present case. He has also submitted that the other amounts as awarded by the Page 5 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined Tribunal are just and proper and therefore, the judgment of the Tribunal requires no interference and that the present appeal may kindly be dismissed.
7. Having heard the learned advocates for the respective parties, this Court proceeds to decide the present matter as stated here in below.
8. The point of determination that the Court is required to adjudicate in the present matter is as follows:
"Whether the compensation and the interest thereon, as awarded by the Tribunal is just and adequate? If not, what would be the just compensation that ought to be awarded in the present matter?"
9. Indeed, as per the pleadings in the said original claim petition, the applicant was said to be earning Rs.5,000/- to Rs.6,000/- per month. Now the said amount ought to have been proved by the applicant. In this respect, the wife of the deceased has entered the witness box and has deposed and the affidavit of examination in chief at paragraph-10 indicates that the said income was to the tune of Rs.5,000/- to Rs.6,000/- per month. The same was sought to be substantiated by a certificate of the Sarpanch of Page 6 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined Chandroda village. In this respect, this Court too, like the Tribunal, believes that the certificate is not believable in as much as there was no way the Sarpanch would have maintained logs or records of income of the individuals in his village, and therefore, in the year-2011, he could not have opined on the income of the deceased for the year- 2001. Thus, the reasoning of the Tribunal in this respect is correct. However, it appears that in the cross-examination, the following response was elicited from the wife of the deceased.
"...એ વાત ખરી નથી કે, મારા પતિ અકસ્માત વખતે રૂા. ૫૦૦૦/- થી ૬૦૦૦/- કમાતા ન હતા. એ વાત ખરી છે કે, મારા પતિ બિમાર હોય તો તેઓને તે દિવસે કોઈ આવક થતી નહી. એ વાત ખરી છે કે, કયારેક માસિક રૂા.૪૦૦૦/- થી ૫૦૦૦/- પણ આવક થાય..."
10. The closest English translation to the same is as follows:
"...It is not true that during the period corresponding to the accident, my husband was not earning Rs.5,000/- to Rs.6,000/-. It is true that if my husband were ill, on that day, he would not earn anything. It is true that sometimes the monthly income would even be to the tune of Rs.4,000/- to Rs.5,000/-..."
11. The aforesaid fact ought to be viewed with the fact that the husband of the deponent used to sell the vegetables Page 7 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined worth Rs.200 to Rs.300 and that the population of the said village was only to the tune of 350 to 400 individuals. Now, the objection as regards the profession of vegetable vendor of the deceased being an eyewash as he does not have an agricultural lands, is not sustainable. By no scale can it be stated that only those persons having an agricultural lands can engage in selling of vegetables. All in all, it appears that there was a suggestion from the insurance company that the income of the deceased could have been even to the tune of Rs.4,000/- to Rs.5,000/-. However, this Court is of the belief that the said cross-examination cannot be taken on the face value and in the best case scenario, the income of the deceased can be assessed to Rs.3,000/-. This is for the reason that even the minimum wages, at that point in time, were Rs.2,100/-. Merely because an advocate of the insurance company has suggested out of blue that the income could have been to Rs.4,000/- to Rs.5,000/-, such suggestion could not be treated to be the case of the insurance company. This Court is aware that when a suggestion is made to the deponent, the said suggestion is to be treated as the case of the other side. However, in this case, this Court is not inclined to take Page 8 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined that view for the simple reason that the advocate would not have known as to what is the income of the deceased and as such, the insurance company cannot be penalized for the act of its panel advocate. Moreover, an accident cannot result into windfall benefits to the heirs of the deceased. Hence, taking the just income, this Court is of the view that the income may be taken to be Rs. 3,000/- per month of the deceased. In that view of the matter, prospective income is to be computed. Now as the age of the deceased was of more than 50 years, the proper percentage of prospective income would be to the tune of 10%. This is so stated in the case of Pranay Shethi. The relevant observation of the concerned judgment is stated hereinbelow.
"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."Page 9 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025
NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined
12. The aggregate income, therefore, will be Rs.3,000/- + (Rs.3,000 X 0.1%) = Rs.3,300/-. And out of the aggregate of the said income, the 1/4th amount is to be deducted looking to the deceased having five dependents. Hence, the monthly income would come to Rs.2,475/- (Rs.3,300 - Rs.3,300/4). Thus, the future loss of income would be Rs.2,475 X 12 X 13 = Rs.3,86,100/-.
13. Further, the consortium to the family would be to the tune of Rs.2,42,000/- (Rs.48,400/- X 5). Indeed, the applicants are 5, however, the 5 th applicant is a married daughter. It may be noted that the argument of the learned advocate for the Insurance Company was that the consortium ought not to be given to the married daughter. However, this Court is of the view that she has also lost her father, and therefore, would be entitled to a consortium. The loss of estate and funeral expenses be computed at the tune of Rs.18,150/- each.
14. Accordingly the enhanced compensation will be computed in the following manner.
Sr.No. Particulars Amount (in Rs.)
1 Future Loss of Income 3,86,100/-
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NEUTRAL CITATION
C/FA/119/2014 JUDGMENT DATED: 16/09/2025
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2 Loss of consortium 2,42,000/-
3 Loss of Estate 18,150/-
4 Loss of Funeral Expenses 18,150/-
Total 6,64,400/-
Less: 3,39,200/-
Already awarded by the Tribunal
Amount enhanced and awarded by 3,25,200/-
this Court
15. The enhanced amount would be carried the interest at the rate of 9%, because the family of the deceased has lost the deceased in the Year-2001 and that the enhancement is being received after a period of approximately 24 years. Throughout that time, the loss suffered by the family would have been met with by the family, by procuring amounts from other sources, and therefore, it would be in the fitness of things that the interest is awarded at the rate of 9% on the enhanced amount.
16. The entire amount shall be disbursed forthwith without creating any further FDRs.
17. The insurance company shall deposit the amount within a period of 8 weeks from the date of receipt of this Order.
18. The present appeal stands disposed of in terms appearing Page 11 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025 NEUTRAL CITATION C/FA/119/2014 JUDGMENT DATED: 16/09/2025 undefined herein above. The R&P be sent back to the concerned Tribunal.
(J. L. ODEDRA, J) JIGAR J RABARI Page 12 of 12 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 02:30:32 IST 2025