Gujarat High Court
Binaben Wd/O Rakeshchandra Dave vs Kantubhai Ghediabhai Gamit on 8 December, 2021
Bench: R.M.Chhaya
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1196 of 2010
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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BINABEN WD/O RAKESHCHANDRA DAVE & 3 other(s)
Versus
KANTUBHAI GHEDIABHAI GAMIT & 2 other(s)
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Appearance:
MR AMIT V THAKKAR(3073) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 29.04.2009 passed by the
Motor Accident Claims Tribunal (Aux), Fast Track
Court, Surat in Motor Accident Claims Petition No.
772 of 1998, the appellants (original claimants) have
filed this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the
"Act").
2. Following facts emerge from the record of the
appeal -
2.1 On 03.02.1998, at 2.15 midnight, deceased Shri
Rakeshchandra was going on his scooter bearing
registration no. GJ-5-R-6682, on Tadvadi Rander Road.
Record shows that he was driving his scooter on the
correct side of the road. At that time, truck
bearing registration no. GJ-7U-9199 came from the
opposite side and dashed with the scooter on account
of which, the deceased sustained serious injuries.
He was under treatment for a longer time and died
during treatment on 22.05.1998. For the said
accidental death, the appellants-original claimants
filed claim petition seeking compensation of
Rs.25,00,000/- under Section 166 of the Act. The
Tribunal after hearing the parties and upon
appreciation of oral and documentary evidence,
awarded compensation of Rs. 8,13,000/-under different
heads with interest at the rate of 7.5% from the date
of filing of the claim petition till its realisation.
The present appeal is filed against the said judgment
and award dated 29.04.2009.
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
3. We have heard Mr. Paresh Darji, learned advocate
for Mr. Amit Thakkar for the appellants and Ms.
Masumi Nanavati, learned advocate for Mr. Vibhuti
Nanavati for the insurance company. Though served,
no one appeared for respondents no. 1 and 2. As the
liability has not been denied, presence of
respondents no.1 and 2 is not necessary for
adjudication of this appeal.
4. Appearing for the appellants, learned advocate
Mr. Darji contended that the order of the Tribunal is
erroneous on the following grounds -
a) At the time of accident, the deceased was 36
years old, a B.Com graduate and serving as Head Clerk
in High School. The salary certificate (exhibit 48)
shows salary of the deceased for the month of May
1998 of Rs.8,173/-. Therefore, the Tribunal has
committed an error in taking salary of Rs.8,000/- per
month.
b) The deceased was 36 years at the time of
accident and therefore for future loss of income 50%
of salary is required be taken as prospective
income. He relied upon the decision of the Supreme
Court in the case of National Insurance Company Ltd.
Vs. Pranay Sethi, reported in 2017 (16) SCC 680.
Moreover, personal expenses are to be deducted at
1/4th and not 1/3rd as granted by the Tribunal. The
multiplier of 15 would be applicable for loss of
dependency and not 12. He thus submitted to enhance
the future loss of income.
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
c) Considering the nature of injury and the period
of 108 days of hospitalisation, the compensation
granted by the Tribunal towards pain, shock and
suffering of Rs. 25,000/- is meager, and submitted to
enhance the same to Rs. 1,00,000/-.
d) For funeral expenses, loss of estate and loss of
consortium, he relied upon the decision of the
Supreme Court in the case of Sarla Verma vs. Delhi
Road Transport Corporation reported in (2009) 6 SCC
121 and Pranay Sethi (supra) and submitted to enhance
accordingly. In support of his submission in
relation to compensation under head spousal and
filial consortium, he relied upon the decision of the
Supreme Court in the case of Magma General Insurance
Company Limited vs. Nanuram alias Chuhru Ram and Ors.
reported in (2018) 18 SCC 130 and Satinder Kaur alias
Satwinder Kaur and Ors. reported in AIR 2020 SC 3076.
He thus submitted to allow the appeal.
5. Per contra, learned counsel Ms. Masumi Nanavati
for Mr. Vibhuti Nanavati, submitted that there is no
error in the judgment and award dated 29.04.2009
passed by the Tribunal and the appeal being
meritless, she requested to dismiss the same.
6. No other or further submissions are made by the
learned counsels for the respective parties.
7. We have perused the Record and Proceedings.
Upon re-appreciation of the evidence, we are of the
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
opinion that the claimants had produced the salary
certificate for the month of March 1998 which shows
salary of the deceased of Rs.8,173/-. In view of the
clear evidence in the form of salary certificate for
the month in which the deceased expired, we deem it
appropriate to take the salary income of the deceased
at Rs.8,173/-. Further, in view of the decision of
the Supreme Court in the case of Pranay Sethi
(supra), as the deceased was 36 years at the time of
accident 50% income is to be taken as prospective
income. There are four dependents and therefore,
1/4th is required to be deducted as personal
expenses. Therefore, in our opinion, the appellants-
original claimants would be entitled to future loss
of income as under :-
Rs.8,173/- (income) + Rs.4,086/- (50%
prospective income) - Rs.3,064/- (1/4th
deduction towards personal expenses) =
Rs.9,194/- X 12 = Rs.1,10,328/-(p.a.) X 15
(multiplier) = Rs. 16,54,920/- (Future Loss of
Income)
8. The records clearly indicate that after the
accident, the deceased was hospitalised for a longer
period of 108 days and had taken extensive treatment,
however, ultimately succumbed to the injuries
sustained in the accident. The Tribunal having
appreciated the evidence on record has awarded an
amount of Rs. 25,000/- towards pain, shock and
suffering. Upon re-appreciation of the evidence,
which reveals the extent of medical treatment
undertaken by the deceased, we deem it fit to
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
quantify the amount of compensation under the head of
pain, shock and suffering at Rs.50,000/-. For
Funeral expenses and loss of estate, Rs.15,000/- each
would be appropriate in view of the decision of the
Supreme Court in the case of Pranay Sethi (supra).
As the deceased survived by widow, father and two
minors, they would be entitled for Rs.40,000/- each
towards filial and parental consortium, which would
come to Rs.1,20,000/-. Thus, the appellants would be
entitled to total compensation as under -
Future loss of income - Rs.16,54,920/-
Pain, shock and suffering - Rs. 50,000/-
Funeral expenses - Rs. 15,000/-
Loss of estate - Rs. 15,000/-
Filial and parental
consortium - Rs. 1,20,000/-
---------------
Total compensation Rs.18,54,920/-
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9. As the Tribunal has granted compensation of Rs.
8,13,000/-, the appellants-original claimants would
be entitled to additional compensation of
Rs.10,41,920/- with interest at the rate of 7.5% p.a.
from the date of filing of the claim petition till
its realisation. The impugned judgment and award
stands modified to the aforesaid extent. The
respondent insurance company shall deposit the
additional/enhanced amount along with interest as
provided in this judgment within a period of eight
weeks from the date of the receipt of this judgment.
10. The appeal is thus partly allowed. However,
C/FA/1196/2010 JUDGMENT DATED: 08/12/2021
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)
BIJOY B. PILLAI
