Solanki Chandubhai Raijibhai vs Ajaykumar Nagarbhai Tholiya
2021 Latest Caselaw 17987 Guj

       C/FA/2809/2021                                             ORDER DATED: 02/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO.               2809 of 2021

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                          SOLANKI CHANDUBHAI RAIJIBHAI
                                      Versus
                           AJAYKUMAR NAGARBHAI THOLIYA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
 for the Defendant(s) No. 1,2
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                 Date : 02/12/2021

                                       ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act of 1988') by the appellants - original claimants challenging the judgment and award dated 08.07.2019 passed by the Motor Accident Claims Tribunal (Aux.) Nadiad (hereinafter referred to as the 'Tribunal') in Motor Accident Claim Petition No.180 of 2018 and prayed for enhancement of compensation.

2. Heard learned advocate Mr. Nishit Bhalodi for the appellants and learned advocate Mr. Tanmay Karia for the contesting respondent No.3 - insurance company.

3. Since limited contention is raised to make the compass of the controversy narrow, the appeal is taken up for final disposal with the consent of

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learned advocates appearing for the parties.

4. The brief facts leading to filing of the present appeal are as under:

4.1. It is the case of the appellants - original claimants that on 02.01.2018, when son of the appellants viz. Shaileshbhai Chandubhai Solanki was walking on the roadside between 7:00 - 8:00 a.m. at Dholera-Bhavnagar road, one truck bearing registration No.GJ-18-U-7561 driven by the original opponent No.1 and owned by the original opponent No.2, was coming in full speed and in rash and negligent manner, at that time, wheel of the said truck fell off and hit with the son of the appellants and therefore son of the appellants sustained grievous injuries and thereafter succumbed to the said injuries.

5. That the present appellants - original claimants, therefore, filed Claim Petition under Section 166 of the Act of 1988 for recovery of compensation of Rs.12 lakh for the death of the deceased Shaileshbhai Chandubhai Solanki. It is the case of the original claimants that the deceased was aged about 22 years at the time of accident and was earning Rs.9,000/- per month from doing labour work.

6. The opponent Nos. 1 and 2 filed their written statement vide Exh.16, whereas the opponent No.3 - insurance company has filed its written statement vide Exh.33 and thereafter oral and documentary

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evidence was led before the Tribunal. The Tribunal, vide judgment and award dated 08.07.2019, partly allowed the claim petition and thereby held all the opponents jointly and severally liable to pay compensation of Rs.10,17,200/- to the original claimants together with interest @ 9% per annum from the date of claim petition till realization of the amount. The opponents were also directed to pay the cost to the original claimants.

7. While passing the aforesaid judgment and award, the Tribunal considered the aspect of negligence as well as quantum. On the basis of the complaint Exh.24, Panchnama Exh.25 as well as other documentary evidence, it was held by the Tribunal that the accident had occurred due to sole negligence of the driver of the offending vehicle - original opponent No.1.

8. On the aspect of quantum, the appellant No.1 - original claimant No.1 gave his deposition which was recorded at Exh.22. In the said deposition, he has stated that his son was doing labour work. However, the Tribunal observed that since the deceased son of the original claimants was working as labourer, the minimum wages of an unskilled worker/labourer in the State of Gujarat can be considered. Thus, in absence of any cogent evidence and considering the fact that accident took place in the year 2018, the Tribunal considered monthly income of the deceased at Rs.6,000/-. Moreover, relying upon the decision

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rendered by the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, reported in (2009) 6 SCC 121, multiplier of 18 was adopted considering the age of the deceased. The Tribunal thereafter referred to the decision of the Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680 and added 40% towards prospective income loss considering the age of the deceased and status of the employment of the deceased and thereafter after deducting 1/2 of the income for the personal and living expenses of the deceased, the Tribunal arrived at the figure of Rs.9,07,200/- towards the future loss of income. The Tribunal also awarded Rs.15,000/- towards the estate and loss of life, Rs.80,000/- towards the loss of consortium and Rs.15,000/- towards funeral expenses and thus awarded total compensation of Rs.10,17,200/- along with 9% interest.

9. Learned advocate for the appellants has restricted his argument only with regard to the assessment of monthly income of Rs.6,000/- by the Tribunal and submitted that monthly income of Rs.6,000/- assessed by the Tribunal is on lower side. It is contended that the Tribunal has committed an error in assessing the monthly income of the deceased at Rs.6,000/- as minimum wage prevalent at the time of accident i.e. in the year 2018. After referring to the minimum wages prevalent in the year 2018, it is contended by learned advocate for the appellants that

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the Tribunal ought to have considered monthly income of the deceased at Rs.7,900/-.

10. On the other hand, learned advocate appearing for the opponent No.3 is not in position to dispute the fact that the minimum wage prevalent at the relevant point of time was Rs.7,900/-.

11. Thus, considering the submission canvassed by learned advocate for the appellants, this Court is of the view that Rs.7,900/- per month which was prevalent at the relevant point of time in the year 2018 as minimum wage should be considered as income of the deceased in absence of any other proof of income. As per the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (supra), 40% is required to be added as prospective income of the deceased. Thus, the figure comes to Rs.11,060/- per month (Rs.7,900/- + Rs. 3,160 = Rs.11,060/-).

12. Applying the monthly income of the deceased as above, the compensation would have to be arrived at. If, 1/2 amount is required to be deducted from Rs.11,060/- towards personal expenses, then the final figure comes to Rs.5,530/- (Rs.11,060/- - Rs.5,530/- = Rs.5,530/-). Now, as per the decision of the Hon'ble Supreme Court rendered in the case of Sarla Verma (supra), if multiplier of 18 is adopted then the final figure comes to Rs.11,94,480/- (Rs.5,530 x 12 x 18 = Rs.11,94,480/-). Thus the claimants - appellants herein are entitled to get the amount of

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Rs.11,94,480/- under the head of future loss of income of the deceased instead of Rs.9,07,200/- as awarded by the Tribunal.

13. Learned advocate for the appellants - original claimants, under the instructions, submitted that he has no objection if the interest at the rate of 7.5% be awarded on the additional amount of compensation of Rs.2,87,280/- from the date of the claim petition till its realization.

14. Thus, the appellants are entitled to get the following final amount as compensation:

1. Rs.11,94,480=00 towards future loss of income

2. Rs.15,000=00 towards Estate and loss of life

3. Rs.80,000=00 towards loss of consortium

4. Rs.15,000=00 towards funeral expenses ______________ Rs.13,04,480=00 Total

15. Thus, the Tribunal has committed an error in awarding total compensation of Rs.10,17,200/- under various heads. The appellants - original claimants are, therefore, entitled to the additional amount of compensation of Rs.2,87,280/- over and above the amount of Rs.10,17,200/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.2,87,280/- to

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the appellants - original claimants together with interest @ 7.5% per annum from the date of the claim petition till realization.

16. The appeal stands partly allowed. The judgment and award dated 08.07.2019 passed by the Tribunal in Motor Accident Claim Petition No.180 of 2018 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above.

17. The disbursement of the aforesaid additional amount of compensation shall be made after proper identification of the claimants and following procedure, by issuing the account payee cheque for the proportionate amount.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI