Gujarat High Court
Sailesh Mavji Kalavadiya vs Harjivan Mulji Kasundra on 3 December, 2021
Bench: Niral R. Mehta
C/FA/3293/2008 ORDER DATED: 03/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3293 of 2008
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SAILESH MAVJI KALAVADIYA
Versus
HARJIVAN MULJI KASUNDRA & 1 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1,1.1,1.2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 03/12/2021
ORAL ORDER
1) Being aggrieved and dissatisfied with the judgment and award passed
by the Motor Accident Claim Tribunal (Aux), & Fast Track Court No. 3,
Jamnagar dated 09.10.2007 in Motor Accident Claim Petition No. 838 of
2002, the appellants-original claimants are before this Court by way of this
first appeal under Section 173 of the Motor Vehicles Act, 1988 (for short
"the Act") for enhancement of the compensation.
2) The original claim of the appellants-original claimants was at
Rs.6,00,000/- for the death of their son Sailesh pursuant to the accident
occurred on 10.09.2002. The Tribunal has awarded a sum of Rs.2,70,000/-
under the various heads as follows;-
Sr. Particulars Amount
No.
1 Future Income Loss Rs.2,34,000/-
2 Mental shock and pain Rs.20,000/-
3 Under the head of transportation and Rs.16,000/-
the funeral expenses
Total Rs.2,70,000/-
C/FA/3293/2008 ORDER DATED: 03/12/2021
3) It is the case of the claimants that their son Shailesh was working as
a Manager in Radhe Bottling and during the course of employment, he was
travelling to Hariyana in vehicle bearing registration No. RJ-22-G-1349.
The driver of the said vehicle was driving the vehicle rashly and negligently.
Therefore, he lost the control over the vehicle and the vehicle dashed with
Tree. Pursuant thereto, during the treatment their son Shailesh passed away.
As per the claimants, their son was earning Rs.5,000/- monthly from "Radhe
Bottling" company and also carrying additional amount of Rs.3,500/- by
doing the business in partnership at Hariyana. The age of the deceased was
of 21 years at the time of accident. Thus, Rs.6,00,000/- claimed by the
original claimants under the various heads.
4) Upon service of notice, the opponent No.1 though served, has chosen
not to appear and contest the proceedings before the Tribunal. The opponent
No. 2-Insurance Company appeared and contested before the Tribunal by
filing written statement below exhibit 18. The Insurance Company had
disputed that the claimants are not legal representative of deceased, and
further, no dependent on the deceased. The Insurance Company has disputed
the income and age of the deceased. The Insurance Comapny had also raised
the contention that at the time of the accident, the driver was not holding the
licence. Further, the Insurance Company has also submitted that the vehicle
in question, was meant for the carraige of goods, thus, the passengers,
traveling in that vehicle, are not entitled for any compenasation.
5) The Tribunal, having considered the submissions and the evidences
produced on record, came to the conclusion that the driver of the offending
vehicle is sole responsible for the accident in question. The Tribunal, while
considering the driver of the vehicle as negligent, relied upon the papers of
the chargesheet, wherein, the driver of the offending vehicle came to be
C/FA/3293/2008 ORDER DATED: 03/12/2021
charge sheeted.
6) It is pertinent to note that the Insurance Company has not examined
the driver of the offending vehicle so as to prove that he was not negligent
for the accident in question. The Tribunal has further considered the income
of the decased at Rs.2,000/- per month, in absence of the any cogent
evidence as to the income of the deceased. The Tribunal has assessed the
monthly income of the deceased at Rs.3,000/- per month, so as to calculate
the dependency loss. Thereafter, considering the prospective income, the
Tribunal had added 50% in the actual income, which came to be assessed at
Rs.4,500/-. Thereafter, the Tribunal deducted 2/3 amount from Rs.4,500/-
towards personal expenditure. Thus, the monthly dependency of the
deceased came to be assessed as Rs.1,500/- (Rs.4,500-Rs.3,000/-), which
comes to Rs.18,000/- (Rs.1,500X12) as yearly dependency. The Tribunal
has awarded the multiplier of 13 years in absence of any proof with regard
to the age of the decased at the time of accident. Therefore, the total amount
under the head of dependency came to be awarded by the Tribunal is
Rs.2,30,000/- (Rs.18,000X13). The Tribunal has awarded the sum of
Rs.20,000/- and Rs.16,000/- under the head of consortium and transporation
& funeral expenditure respectively. Therefore, the Tribunal has awarded
total sum of Rs.2,70,000/- with interst at the rate 7.5% from the date of
application till the realization.
7) Being aggrieved by the aforesaid, the appellants-original claimants
have approached this Court by way of present appeal under Section 173 of
the Act for enhancement of the compensation.
8) Mr. Premal Rachh, the learned advocate for the appellant has
submitted that the Tribunal has not awarded adequate compensation to the
appellants-original claimants and that has resulted into the miscarraige of
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justice.
9) Mr. Rachh, the learned advocate appearing for the appellants has
further submitted that the Tribunal has grossly erred in not awarding the
compensation under the head of dependency by not properly calculating the
income of the deceased.
10) Mr. Rachh, the learned advocate appearing for the appellants has
submitted that the Tribunal should have considered the aspects of future
prospect, while calculating the income of the deceased so as to award the
compensation under the head of dependency.
11) Mr. Rachh, the learned advocate appearing for the appellants has
submitted that the Tribunal has further erred in deducting 2/3 expenses
towards personal expenditure of the deceased, which according to Mr.
Rachh is excessive in nature because the deceased was unmarried at the time
of accident.
12) Mr. Rachh, the learned avocate appearing for the appellants has
submitted that the Tribunal has awarded very less and inadequate
compensation under the conventional head such as consortium. Mr. Rachh,
the learned advocate appearing for the appellants has also requested this
Court to enhance the amount under the head of transportation and funeral
expenses.
13) Mr. Rachh, the learned advocate appearing for the appellants has
lastly relied upon the decision of Honourable the Apex Court in the case of
Sarla Verma Vs. Delhi Transporation Corporation, reported in 2009(6)
SCC 121 and in the case of Oriental Insurance Co. Ltd. Vs. Pranay
C/FA/3293/2008 ORDER DATED: 03/12/2021
Shetty and Ors. reported in (2017) 16 SCC 680.
14) Per contra, Mr. Sunil Parikh, the learned advocate appearing for the
Insurance Company has submitted that the award passed by the Tribunal is
just and fair and therefore, may not be disturbed.
15) Mr. Sunil Parikh, the learned advocate appearing for the Insurance
Company has submitted that the compensation under the head of
dependency awarded by the Tribunal is more than adequate and thereby no
interference may be warranted by this Court.
16) Mr. Parikh, the learned advocate appearing for the Insurance
Company has submitted that no income proof was produced by the original
claimants, however, the Tribunal has assessed the income of the deceased at
Rs.3,000/- per month, which according to Mr. Sunil Parikh, is excessive in
nature, and therefore, Mr. Parikh has requested the appeal preferred by the
claimants may not be entertained and no enhancement order be passed.
17) Mr. Parikh, the learned advocate appearing for the Insurance
Company, however, could not able to dispute and distinguish the ratio laid
down by the Honourable Apex Court in the case of Sarla Verma (Supra) and
Pranay Shetty (Supra).
18) I have heard the learned advocates appearing for the respective
parties, and gone through the record and proceedings of the concerned
Tribunal.
19) No other submissions and the arguments made by the learned
advocates appearing for the respective parties except stated hereinabove.
C/FA/3293/2008 ORDER DATED: 03/12/2021
20) Having considered the submissions and the findings on record
coupled with the evidence on record, in my considered opinion, it will be in
the interest of justice that impugned judgement and award paseed by the
Tribunal be suitably modified in terms of the decision of Honourable Apxe
Court in the cases of Sarla Verma (Supra) and Pranay Shetty (Supra).
21) It is pertinent to note that though the learned advocate for the
Insurance Company has sought to argue that the Tribunal has excessively
considered the monthly income, however, the Insurnace Company has not
challenged the same by way of any appeal. Hence, in my view, while
considering the scope of enhancement, it would be just and proper to
proceed on the basis of the income that was assessed by the Tribunal and in
a way accepted by the Insurance Company by not preferring any appeal
there against. Hence, applying the ratio of Honourable the Apex Court while
deciding the just compensation under the head of loss of dependency, the
monthly income of the deceasd is Rs.3,000/- X prospective income i.e. 40%,
which comes to Rs.4,200/-. Since the deceased was unmarried, according to
me, 1/2 amount should be deducted there from under the head of personal
expenditure, which coms to Rs.2,100/- as monthly dependency (Rs.21,00/-
X12=Rs.25,200/-) is the annual income of loss of dependency. So far as the
age of the deceased is concered, it is say of the appellants that the deceased
was aged 21 years at the time of accident, however, no proper age proof was
produced and the same has not been disputed by the Insurance Company
neither before the Tribunal nor before this Court, therefore, in my view, the
multiplier of 18 years requires to be adopted. Therefore, in my view,
Rs.4,53,000/- (Rs.25,200 X 18) would be the compensation under the head
of dependency.
22) I am further of the view that the claimants are the parents of the
deceased, therefore, they are entitled to a sum of Rs.40,000/- Each under the
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head of consortium, under the head of funeral and transporation charges, i
deem fit to award Rs.15,000/- each i.e. Rs.30,000/-.
23) In view of the aforesaid discussion, present First Appeal is allowed in
part. The judgement and award passed by the Motor Accident Claim
Tribunal (Aux), & Fast Track Court No. 3, Jamnagar dated 09.10.2007 in
Motor Accident Claim Petition No. 838 of 2002 and is hereby modified as
under:-
Sr. No. Particulars Amount
1 Loss of dependency Rs.4,53,000/-
2 Loss of consortium Rs.80,000/-
3 Loss under the head of Rs.30,000/-
transportation and the funeral
expenses
4 Tribunal has already awarded Rs.2,70,000/-
5 Total Rs.2,93,000/-
24) In view of the aforesaid, the Insurance Company is directed to deposit
a sum of Rs.2,93,000/- with interest at the rate of 7.5% before the Tribunal
concerned, within the period of 8 weeks from the date of receipt of writ of
this Court.
25) The Tribunal concerned is directed to disburse the said amount with
interest to the appellants - original claimants by way of account payee
cheque after due and proper verification. The deficit court fees stamp, if any,
is directed to deposit by the appellant. Record and proceedings be sent back
to the Tribunal concerned forthwith.
(NIRAL R. MEHTA,J)
VISHAL MISHRA
