Gujarat High Court
Prabhatji Pratapji Thakor vs Arvindbhai Saburbhai Solanki on 9 December, 2021
Bench: Vipul M. Pancholi
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3678 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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PRABHATJI PRATAPJI THAKOR
Versus
ARVINDBHAI SABURBHAI SOLANKI
=======================================================
Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2,4
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 09/12/2021
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the
Motor Vehicle Act (hereinafter referred to as "the
Act" for short) by the appellants - original
claimants, wherein the appellant has prayed for
enhancement of the compensation awarded while
passing judgment and award dated 07.08.2019 by the
learned 2nd Additional District Judge, M.A.C.T.
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
(AUX), Kheda at Nadiat in MACP No.630/2018.
2. The factual matrix of the present case is as
under,
2.1 On 18.05.2018, one Bhartiben Prabhatji Thakor
was travelling in Rickshaw bearing
Registration No.GJ-1-CT-9271, which was being
driven by the original opponent no.4, however
when they reached near the place of accident,
the original opponent no.1 came from the
opposite side driving Truck bearing
Registration No.GJ-18-AZ-5050 in rash and
negligence manner and also in excessive speed
in wrong side and dashed his Truck with the
Rickshaw, wherein the said Bhartiben
Prabhatji Thakor was sitting, as a result of
which, the accident had occurred and the said
Bhartiben Thakore sustained serious injuries
on different parts of the body and succumbed
to the same. Therefore, the heirs of the
deceased filed Claim Petition before the
Tribunal, wherein the claimants prayed that
the amount of Rs.15.00 lakhs by way of
compensation be awarded to them.
2.2 The original opponents appeared before the
Tribunal and, thereafter, the original
opponent nos.1 and 2 filed written statement
at Exh.20, whereas the original opponent no.3
filed written statement at Exh.11 and both
have denied the claim of the claimants.
Thereafter, the parties led evidence before
the Tribunal.
2.3 After considering the evidence produced
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
before the Tribunal, the Tribunal partly
allowed the claim petition and thereby held
the original opponent nos.1 to 3 jointly and
severely liable to pay compensation to the
claimants. The Tribunal awarded
Rs.10,21,864/- together with interest at the
rate of 9% p.a. from the date of petition
till realization of the amount with
proportionate cost of the petition.
3. Heard learned advocate, Mr. Nishit Bhalodi for the
appellants and learned advocate, Mr. Sunil Parikh
for the respondent no.3 - New India Assurance Co.
Ltd.
4. Looking to the issue involved in the present
appeal, learned advocates appearing for the
parties have jointly requested that this appeal be
disposed of at an admission stage.
5. Learned advocate for the appellants submitted that
the Tribunal has committed an error while
considering the income of the deceased at
Rs.5,000/- p.m. and in fact, the deceased was
earning Rs.7,000/- p.m. as she was skilled worker
on the date of accident and, hence, the Tribunal
ought to have considered the income of the
deceased at Rs.7,000/- as minimum wages, which has
not been considered. He further submitted that the
Tribunal has also committed an error while
awarding Rs.40,000/- towards the consortium
because the original claimants are entitled to
Rs.40,000/- to the each appellant towards the
consortium. He further submitted that the Tribunal
has also committed an error by not allowing any
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
compensation under the head of love and
affection. In support of the aforesaid
submissions, learned advocate has relied upon the
decision rendered by the Hon'ble Supreme Court in
case of Magna General Insurance Co. Ltd. Vs. Nanu
Ram @ Churu Ram & Ors., delivered in Criminal
Appeal No.9581/2018.
6. On the other hand, learned advocate appearing for
the respondent no.3 - Insurance Company has
submitted that the Tribunal has not committed any
error while awarding the compensation to the
original claimants. He, however, is not in a
position to dispute about the fact that the
appellants are entitled to consortium and 40% rise
on the annual notional income.
7. the submissions canvassed by learned advocate for
the appellants with regard to the calculation of
the monthly income of the deceased and
compensation awarded under the head of consortium.
8. I have considered the submissions canvassed by
learned advocates appearing for the parties and I
have also perused the material placed on record.
9. From the facts of the case and material available
on record, it is evident that when the deceased
was travelling in Rickshaw bearing Registration
No.GJ-1-CT-9271, the driver of the Truck bearing
Registration No.GJ-18-AZ-5050 came from wrong side
in rash and negligence manner and also in
excessive speed in wrong side and dashed with the
rickshaw, as a result of which, the deceased
sustained serious injuries and succumbed to the
same, for which, claim petition was filed, wherein
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
the compensation has been awarded as mentioned in
the impugned judgment and award considering
monthly income of the deceased at Rs.5,000/- p.m.
However from the records, it is revealed that the
deceased was skilled worker on the date of
accident and, hence, the monthly income considered
by the Tribunal at Rs.5,000/- cannot be said to be
just income and it ought to have been considered
at Rs.7,000/- and based on its, compensation ought
to have been awarded. On perusal of the findings
given and conclusion arrived at by the Tribunal as
well as from the material available on record, it
is revealed that the Tribunal has not awarded the
amount of consortium considering the dependents of
the deceased.
10. At this stage, this Court would like to refer to
the relevant observations made by the Hon'ble
Supreme Court in Paragraph Nos.38, 39, 40 and 42
of the decision of New India Assurance Co. Ltd. v.
Somwati and others, reported in 2020 (9) SCC 644,
which read as under:
"38. Learned counsel for the appellant has
submitted that Pranay Sethi has only
referred to spousal consortium and no other
consortium was referred to in the judgment
of Pranay Sethi, hence, there is no
justification for allowing the parental
consortium and filial consortium. The
Constitution Bench in Pranay Sethi has
referred to amount of Rs.40,000/- to the
'loss of consortium' but the Constitution
Bench had not addressed the issue as to
whether consortium of Rs.40,000/- is only
payable as spousal consortium. The judgment
of Pranay Sethi cannot be read to mean that
it lays down the proposition that the
consortium is payable only to the wife.
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
39. The Three-Judge Bench in United India
Insurance Company Ltd. (Supra) has
categorically laid down that apart from
spousal consortium, parental and filial
consortium is payable. We feel ourselves
bound by the above judgment of Three Judge
Bench. We, thus, cannot accept the
submission of the learned counsel for the
appellant that the amount of consortium
awarded to each of the claimants is not
sustainable.
40. We, thus, found the impugned judgments
of the High Court awarding consortium to
each of the claimants in accordance with
law which does not warrant any interference
in this appeal. We, however, accept the
submissions of learned counsel for the
appellant that there is no justification
for award of compensation under separate
head 'loss of love and affection'. The
appeal filed by the appellant deserves to
be allowed insofar as the award of
compensation under the head 'loss of love
and affection'.
xxx xxx xxx
42. This Court in the above case confined
its consideration towards the income of the
deceased and there was neither any claim
nor any consideration that the consortium
should have been paid to other legal heirs
also. There being no claim for payment of
consortium to other legal heirs, this Court
awarded Rs.40,000/- towards consortium. No
such ratio can be deciphered from the above
judgment that this Court held that
consortium is only payable as a spousal
consortium and consortium is not payable to
children and parents."
11. From the aforesaid judgment, it appears that the
Hon'ble Supreme Court finds the impugned judgments
of the High Court awarding consortium to each of
the claimants in accordance with law.
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
12. Thus, the appellants are entitled to get the
following final amount as compensation:
Rs. 7,000/- Annual Income (Notional)
+ Rs. 2,800/- 40% Rise
-----------
Rs. 9,800/-
- Rs. 3,300/- Personal Expenses
-----------
Rs. 6,500/-
* 12 Month
-----------
Rs. 78,000/- Income Per Annum
* 17 Multiplier
-----------
Rs.13,26,000/-
+ Rs. 80,000/- Consortium (Rs.40,000/- each)
+ Rs. 30,000/- Funeral & Loss to Estate
-------------
Rs.14,36,000/- Total Compensation
- Rs.10,21,864/- Awarded by Tribunal
-------------
Rs.4,14,136/- Addl. Amount of Compensation
13. Thus, the Tribunal has committed an error in
awarding total compensation of Rs.10,21,864/-
under various heads. The appellants - original
claimants are, therefore, entitled to the
additional amount of compensation of Rs.4,14,136/-
to be recovered from original opponent nos.1 to 3
i.e. the respondent nos.1 to 3 herein together
with interest at the rate of 7.5% per annum from
the date of the claim petition till realization,
which is also agreed by learned advocate appearing
for the appellants and he has no objection for the
same.
14. In view of the aforesaid observations and
discussion, the present First Appeal stands
allowed party. The impugned judgment and award
dated 07.08.2019 by the learned 2nd Additional
District Judge, M.A.C.T. (AUX), Kheda at Nadiat in
MACP No.630/2018 is hereby modified and the
C/FA/3678/2021 JUDGMENT DATED: 09/12/2021
appellants - original claimants are entitled to
the additional amount of compensation of
Rs.4,14,136/- at the rate of 7.5% p.a. over and
above the amount of Rs.10,21,864/- as awarded by
the Tribunal. Thus, the original opponent nos.1 to
3 i.e. the respondent nos.1 to 3 herein are
jointly and severally liable to pay the aforesaid
additional amount of compensation of Rs.4,14,136/-
to the appellants - original claimants together
with interest @ 7.5% per annum from the date of
the claim petition till realization. It is
clarified that the original claimants made a claim
of Rs.4,00,000/-, for which court fee stamp at
Rs.5,975/- has already been paid and this Court
has awarded additional compensation of
Rs.4,14,136/- and, hence, the appellants -
original claimants shall pay court fee stamp on
the amount of Rs,14,136/-. The disbursement of the
aforesaid additional amount of compensation shall
be after proper identification of the claimants
and following procedure, by issuing the account
payee cheque. No order as to costs.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
