Gujarat High Court
Ajay Prafulbhai Gohil vs Sajidahmad Abdulhamid Vohra on 2 December, 2021
Bench: Vipul M. Pancholi
C/FA/1071/2021 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1071 of 2021
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AJAY PRAFULBHAI GOHIL
Versus
SAJIDAHMAD ABDULHAMID VOHRA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
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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 appellant -
original claimant challenging the judgment and award dated 2.1.2019
passed by the Motor Accident Claims Tribunal (Aux.), Nadiad
(hereinafter referred to as the 'Tribunal') in Motor Accident Claims
Petition No.532 of 2016 and prayed for enhancement of compensation.
2. Heard learned advocate Mr. Nishit Bhalodi for the appellants,
learned advocate Mr.Rathin Raval for opponent No.2.
3. Since limited contention is raised to make the compass of the
controversy narrow, the appeal could be decided on legal principles alone
for which the Record and Proceedings are not necessary to be called for.
It is further pertinent to note that this Court, as the issue involved in the
present appeal is covered by the decision rendered by this Court in First
Appeal No.91 of 2020 decided on 06.02.2020 and the issue involved is
very limited with regard to compensation, the same is heard and disposed
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off at admission stage, at the request of the learned advocate for the
appellant and learned advocate for the contesting respondent.
4. The brief facts leading to filing of this petition are such that on the
day of the accident i.e. on 14.2.2016, when the father of the claimant
viz.Prafullbhai along with his mother was going by walk to visit the
temple of Kulbai Mata Mandir at 5.00 in the early morning and when
they reached near Rajubhai's weighing scale, on TVS showroom road on
Sevaliya to Balasinor road, the original opponent no.1-driver/owner of
the Tempo no.GH.7UU.5440 came driving rashly and negligently and hit
the parents of the claimant, because of which both of them sustained
grievous injuries and thereafter succumbed to the injuries. It is the case of
the original claimant that his father was aged about 48 at the time of
accident and was earning Rs.10,000/- per month from garage.
5. The opponent No.2 filed written statement and thereafter oral and
documentary evidence was led before the Tribunal. The Tribunal, vide
judgment and award dated 2.1.2019, partly allowed the claim petition and
thereby held the opponent Nos. 1 and 2 jointly and severally liable to pay
compensation of Rs.7,70,000/- 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.
6. While passing the aforesaid judgment and award, the Tribunal
considered the aspect of negligence as well as quantum. On the basis of
the FIR Exh.36, Panchnama Exh.17 as well as other documentary
evidence, it was held by the Tribunal that the opponent No.1 - driver of
the tempo was solely negligent.
C/FA/1071/2021 ORDER DATED: 02/12/2021
7. On the aspect of quantum, it is observed by the learned Tribunal
that considering the date of accident, no documentary or oral evidence is
led for proving the income of the deceased. It is further observed that no
accounts or registration number, pan card or income tax returns are
produced for proving the business of garage. Thus, the Tribunal
considered monthly income of the deceased at Rs.5,000/-, in view of the
fact that the deceased was a skilled person as he was running garage and
the year of accident. Moreover, relying upon the decision rendered by the
Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport
Corporation, reported in (2006) 9 SCC 121, the multiplier of 13 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 25% towards prospective income loss
considering the age of the deceased and status of the deceased as self-
employed and thus arrived at the figure of Rs.6,50,000/- towards the
future loss of income. The Tribunal also awarded lumpsum amount of
Rs.55,000/- towards the loss of estate and consortium. The Tribunal
further awarded Rs.15,000/- as funeral expenses and thus awarded total
compensation of Rs.7,20,000/- along with 9% interest.
8. Learned advocate for the appellants submitted that monthly income
of Rs.5000/- assessed by the Tribunal is on lower side. It is contended
that the accident had taken place in the year 2016 and therefore even if
the Tribunal was of the opinion that evidence was not available to accept
the claim of income of the deceased at Rs.10,000/- per month, in absence
of any evidence on income criteria, the income of the deceased ought to
have been assessed on the basis of the minimum wages prevalent in the
year of accident i.e. in the year 2016. After referring to the minimum
C/FA/1071/2021 ORDER DATED: 02/12/2021
wages prevalent in the year 2016, it is contended by learned advocate for
the appellant that the Tribunal ought to have considered monthly income
of the deceased at Rs.8,000/-.
9. On the other hand, learned advocates appearing for the opponent
are not in position to dispute the fact that the minimum wage prevalent at
the relevant point of time was Rs.8,000/-.
10. Thus, considering the submissions canvassed by learned advocate
for the appellant, this Court is of the view that Rs.8,000/- per month
which was prevalent at the relevant point of time in the year 2016 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), 25% is required to be
added as prospective income of the deceased. Thus, the figure comes to
Rs.10,000/- per month (Rs.8,000/- + Rs.2,000 = Rs.10,000/-).
11. Applying the monthly income of the deceased as above, the
compensation would have to be arrived at. Deducting the 1/3rd of the
amount which the deceased would have spend on himself, the future loss
of income would come to Rs.6,667/- (10,000-3,333 = 6,667/-). Now, as
per the decision of the Hon'ble Supreme Court rendered in the case of
Sarla Verma (supra), if multiplier of 13 is adopted then the final figure
comes to Rs.10,40,052/- (Rs.6,667 x 12 x 13 = Rs.10,40,052/-). Thus the
claimant - appellant herein is entitled to get the amount of Rs.10,40,052/-
under the head of future loss of income of the deceased instead of
Rs.6,50,000/- as awarded by the Tribunal.
12. The award of the amount under the other heads is not challenged
C/FA/1071/2021 ORDER DATED: 02/12/2021
by the appellant.
13. Thus, the appellants are entitled to get the following final amount
as compensation:
1. Rs.10,40,052 towards future loss of income
2. Rs.40,000-00 towards loss of consortium
3. Rs.15,000=00 towards loss of estate
4. Rs.15,000=00 towards funeral expenses
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Rs.11,10,052=00 Total
14. Thus, the Tribunal has committed an error in awarding total
compensation of Rs.7,20,000/- under various heads. The appellant -
original claimant is, therefore, entitled to the additional amount of
compensation of Rs.3,90,052/- over and above the amount of
Rs.7,20,000/- as awarded by the Tribunal. The opponents are jointly and
severally liable to pay the aforesaid additional amount of Rs.3,90,052/- to
the appellant - original claimant together with interest @ 7.5% per
annum from the date of the claim petition till realization.
15. The appeal stands partly allowed. The judgment and award dated
2.1.2019 passed by the Tribunal in Motor Accident Claims Petition
No.532 of 2016 shall stand modified to the aforesaid extent by enhancing
the amount of compensation as above.
16. The disbursement of the aforesaid additional amount of
compensation shall be after proper identification of the claimant and
following procedure, by issuing the account payee cheque for the
proportionate amount.
(VIPUL M. PANCHOLI, J)
SRILATHA
