Gujarat High Court
Bhavnaben Jayeshbhai Parikh vs Jagdish Chaudhary Soyakram on 2 December, 2021
Bench: R.M.Chhaya
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4762 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHAVNABEN JAYESHBHAI PARIKH
Versus
JAGDISH CHAUDHARY SOYAKRAM
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Appearance:
MR VISHAL MEHTA for MR PRADEEP R MISHRA(10206) for the
Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 02/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 24.8.2018 passed by
the Motor Accident Claims Tribunal (Aux),
Vadodara in MACP no.1602 of 2003, the
appellants - original claimants have preferred
this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as
"the Act") as short issue of quantum arises in
this appeal. Record and proceedings were
called for at the admission stage.
2. Heard Mr. Vishal C. Mehta for Mr. Pradip
Mishra, learned advocate for the appellant and
Mr. Alkesh Shah, learned advocate for the
respondent no.3 - insurance Company. Though
served, no one appears for the other
respondents. Respondent no.3 - insurance
Company has not challenged the liability and
hence, presence of other respondents are not
necessary for deciding the present appeal.
With consent of the learned advocates
appearing for the respective parties, the
matter is taken up for final disposal
forthwith.
3. Following facts emerge from the record of the
appeal:-
3.1 That, the accident took place on 30.4.2003. It
is the case of the appellants-original
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
claimants that on that day, the deceased -
Jayeshbhai was going from Shreenathji to
Jaipur by driving Maruti Zen Car bearing
registration no. GTW-1 BA-5822. It is the case
of the appellants - original claimants that
when the deceased - Jayeshbhai reached near
Javaja Police Station area on Ajmer-Jaipur
road, at that time, respondent no.1 came from
opposite direction by driving a truck bearing
registration no. RJ-14 G-6927 being driven in
a rash and negligent manner and dashed with
the Maruti Zen Car, as a result of which, the
deceased - Jayeshbhai sustained serious
injuries and succumbed to the same on the
spot. It is the case of the appellants -
original claimants that an FIR was also lodged
with the jurisdictional Police Station. It is
the case of the appellants - original
claimants that the deceased - Jayeshbhai was
earning Rs.2,50,000/- per year by cultivating
the agriculture lands and by doing business of
land and estate and thereby, claimed
compensation of Rs.30,00,000/-.
3.2 The appellant no.1 - Bhavanaben was examined
at Exh.25. The appellants also relied upon
plethora of documentary evidences, such as,
FIR Exh.29, charge-sheet Exh.30, statement of
the wife of the deceased Exh.31, R.C. Book
Exh.32, insurance policy Exh.33, postmortem of
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
the deceased Exh.35, driving license of the
deceased Exh.38, school leaving certificate
Exh.39, proof of income from the business of
land and estate Exh.40, extracts of village
form no.7/12 Exhs.41 to 44, income-tax returns
Exhs.45 and 46 and PAN card Exh.47. The
Tribunal, after taking into consideration the
income of the deceased at Rs.3,707/- per month
and adding 25% prospective income, considered
monthly income of the deceased at Rs.4,634/-
and after deducting one-third amount towards
personal expenses, determined income of
Rs.3,090/- per month. The Tribunal, after
awarding multiplier of 13, awarded
Rs.4,82,040/- under the head of loss of
dependency. The Tribunal further awarded
Rs.36,000/- towards agricultural income and
also awarded Rs.70,000/- under the
conventional heads. The Tribunal, after
appreciating the evidence on record, awarded
total compensation of Rs.5,88,040/- along with
7.5% interest per annum with proportionate
costs and interest from the date of filing of
the claim petition till its realization. Being
aggrieved by the same, the appellants -
original claimants have preferred this appeal.
4. Mr. Vishal C. Mehta, learned advocate for the
appellants - original claimants has contended
as under:-
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
(i) That, the Tribunal has committed an error in
determining the income. Mr. Mehta invited
attention of this Court to the findings
arrived at by the Tribunal, wherein in
Paragraph 12, the Tribunal has come to the
conclusion that the deceased - Jayeshbhai was
engaged in the business of land and estate and
was earning Rs.3,707/- per month. In Paragraph
13 thereof, the Tribunal has given an
independent finding that the income derived by
the deceased from agricultural activities
comes to Rs.36,000/- per year i.e. Rs.3,000/-
per month. However, while calculating the
compensation under the head of loss of
dependency, the Tribunal has not considered
agricultural income and has merely added
Rs.36,000/- separately under the head of
agricultural income. Mr. Mehta contended that
the said method adopted by the Tribunal is
erroneous. According to Mr. Mehta, the income
of agriculture was also income of the
deceased, which requires to be added in the
income which the deceased was earning from
land and estate business.
(ii) It was further contended by Mr. Mehta that the
total number of dependents were four in number
and hence, even as per the judgment in the
case of Sarla Verma Vs. Delhi Transport
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
Corporation & Anr., (2009) 6 SCC 121,
deduction towards personal expenses should be
one-fourth.
(iii)Relying upon the judgment of the Hon'ble Apex
Court in the case of Magma General Insurance
Company Limited Vs. Nanu Ram alias Chuhru Ram
& Ors., reported in (2018) 18 SCC 130 and
United India Insurance Company Limited Vs.
Satinder Kaur @ Satwinder Kaur, reported in
AIR 2020 SC 3076, it was contended by Mr.
Mehta that the parents would be entitled to
filial compensation.
On the aforesaid grounds, it was contended
by Mr. Mehta that the impugned judgment and
award, being erroneous, deserves to be
modified by allowing the appeal.
5. Per contra, Mr. Alkesh Shah, learned advocate
for the respondent no.3 - insurance Company
has supported the impugned judgment and award.
Mr. Shah contended that the Tribunal has in
fact wrongly awarded agricultural income as
there is no evidence, except Village Form
no.7/12. It was further contended by Mr. Shah
that the deduction is properly made. It was
also contended that other claimants are not
entitled to any compensation under consortium.
It was therefore contended that the appeal,
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
being merit-less, deserves to be dismissed.
6. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
7. We have perused the original record and
proceedings and have also gone through the
evidence on record and the findings arrived at
by the Tribunal. Mr. Mehta has rightly
contended that having come to the conclusion
that the agricultural income of the deceased
was Rs.36,000/- per month, the same cannot be
separately granted, but is to be treated as
part and parcel of the income of the deceased
and while calculating the compensation under
the loss of dependency, the same should be
treated as income of the deceased. Similarly,
it is an admitted position that the deceased
had four dependents on the date of the
accident and therefore, the deduction should
be one-fourth and not one-third as held by the
Tribunal.
8. Mr. Mehta has rightly relied upon the judgment
of the Hon'ble Apex Court in the cases of
Magma General Insurance Company Limited
(supra) and Satinder Kaur (supra) as the
father and mother were alive on the date on
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
which the claim petition was filed and
therefore, the appellants - original claimants
would be entitled to filial consortium as
well.
9. Having come to the aforesaid conclusion, the
appellants - original claimants would be
entitled to compensation as under:-
Rs.3,707/- Income from brokerage per
month
+ Rs.3,000/- Income from agriculture per
month
= Rs.6,707/- Income per month
+ Rs.1,677/- Prospective income
= Rs.8,384/- Income per month
- Rs.2,096/- Personal expenses
= Rs.6,288/- Income per month
X 12 Yearly
= Rs.75,456/- Yearly income
X 13 Multiplier
= Rs.9,80,928/- Loss of dependency
+ Rs.70,000/- Conventional amount
+ Rs.80,000/- Filial consortium
= Rs.11,30,928/- Total compensation
10. Thus, the appellants - original claimants
would be entitled to total compensation of
Rs.11,30,928/- along with 7.5% interest per
annum and costs as awarded by the Tribunal
from the date of filing of the claim petition
till its realization. As the Tribunal has
C/FA/4762/2019 JUDGMENT DATED: 02/12/2021
awarded Rs.5,88,040/-, the appellants -
original claimants would be entitled to an
additional amount of Rs.5,42,888/- as
additional compensation along with 7.5%
interest per annum and costs from the date of
filing of the claim petition till its
realization. The impugned judgment and award
stands modified to the aforesaid extent. The
insurance Company shall deposit the
additional/enhanced amount along with the
interest as provided in this judgment within a
period of three months from the date of
receipt of this judgment. The same shall be
disbursed as per the award.
11. The appeal is thus partly allowed. However,
there shall be no order as to costs in this
appeal. Registry is directed to remit the
record and proceedings back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
Maulik
