Gujarat High Court
Pratik Prakashchandra Patel vs Prakashbhai Ravjibhai Patel on 9 December, 2021
Bench: R.M.Chhaya
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1456 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
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 ?
==========================================================
PRATIK PRAKASHCHANDRA PATEL & 1 other(s)
Versus
PRAKASHBHAI RAVJIBHAI PATEL & 1 other(s)
==========================================================
Appearance:
MR HARDIK A DAVE(3764) for the Appellant(s) No. 1,2
MR HARSHADRAY A DAVE(3461) for the Appellant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 09/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 31.12.2008 passed by the
Motor Accident Claims Tribunal(Aux), Anand in MACP
No. 2501 of 2006, the original claimants have
preferred this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the
"Act').
2. The following facts emerge from the record of
the appeal -
2.1 That the accident took place on 20.09.1996. It
is the case of the original claimants that the
respondent no.1 was driving his Maruti car bearing
registration no. GJ-7H-1827 from Vidhyanagar to
Nadiad. The record indicates that wife of respondent
no.1 Pritiben was also travelling in the very car.
Because of full speed, the respondent no.1 lost
control over the steering and rammed into the gutter
because of which, Pritiben sustained injuries and
died during the treatment. An FIR was lodged with
the jurisdictional police station at exhibit 66 and
the present claim petition was preferred under
Section 166 of the Act by the two children of the
deceased Pritiben and claimed compensation of
Rs.25,00,000/-.
2.2 It is the case of the claimants that Pritiben
was an expert business woman and was engaged in the
vocation of engineering items and was trading as a
sole proprietor in the name and style of Santram
Engineering Company. It was the case of the
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
claimants that the net profit out of the business was
Rs. 1,94,695/-. One of the claimant was examined at
exhibit 22 and documentary evidences were also relied
upon such as panchnama of the scene of occurrence at
exhibit 63 and also complaint at exhibit 66, inquest
panchnama at exhibit 67, PM Note at exhibit 68,
medico legal certificate at exhibit 69, judgement of
criminal case no. 4522/96 at exhibit 70 and charge-
sheet at exhibit 71. Another witness Kanjibhai
Sodabhai was examined at exhibit 65. The Tribunal
after appreciating the evidence on record, came to
the conclusion that the respondent no.1 was negligent
for the accident. The Tribunal after considering the
evidence on record, both oral as well as documentary,
came to the conclusion that there is supervisory loss
and determined the income of the deceased at
Rs.60,000/- p.a. and after deducting 1/3rd toward
personal expenses, awarded compensation of
Rs.6,00,000/- under the head of dependency loss by
applying 15 multiplier. Over and above the same, the
Tribunal was pleased to award Rs.17,000/- as
compensation under different conventional heads and
thus, awarded total compensation of Rs.6,17,000/- and
upon appreciation of the evidence, ultimately the
Tribunal came to the conclusion that the appellants-
original claimants would get 25% of the said amount
each and thus, awarded Rs. 3,08,500/- with 7.5%
interest as total compensation while partly allowing
the claim petition and being aggrieved by the same,
the present appeal is filed.
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
3. Heard Mr. Harshadray Dave, learned advocate for
the appellant and Mr. Maulik J. Shelat, learned
advocate for respondent no.2. Though served, no one
appears for the respondent no.1.
4. Mr. Harshadray Dave, learned counsel appearing
for the appellants contended that the Tribunal has
erred in considering the income of Rs. 5,000/- only
as supervisory charge. Mr. Dave contended that
though the partnership has continued, the expertise
of deceased is not available to the firm anymore.
According to Mr. Dave, the supervisory charge should
have been at least Rs.10,000/- p.m., i.e. Rs.
1,20,000/- p.a. Mr. Dave further contended that the
Tribunal has also erred in deducting 50% of the
amount and according to Mr. Dave, the deduction
cannot be more than 1/3rd. Further, relying upon the
judgment of the Apex Court in the case of Sarla Verma
vs. Delhi Road Transport Corporation reported in
(2009) 6 SCC 121 and in the case of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in
2017 (16) SCC 680, it was contended by Mr. Dave that
the claimants would be entitled to prospective
income, which is not considered by the Tribunal. On
the aforesaid grounds, it was contended by Mr. Dave
that the appeal be allowed.
5. Per contra, Mr. Maulik Shelat has opposed this
appeal. Mr. Shelat, learned advocate for the
insurance company has contended that the sole
proprietorship business has continued and the same is
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
now devolved in favour of the appellants and
therefore, there is no loss. Mr. Shelat further
contended that there is nothing on record to show
that because of expertise of the deceased, the
business used to flourish and in her absence, the
same is badly affected. Therefore, it was contended
by Mr. Shelat that the Tribunal has rightly assessed
the income of the deceased and the same does not
require any alteration and the claimants are not
entitled to any prospective income. It was contended
by Mr. Shelat that the compensation awarded by the
Tribunal is just and proper and the same does not
require any modification and the appeal requires to
be dismissed.
6. Upon re-appreciation of the evidence on record
as a whole, we do not find that the Tribunal has
committed any error in determining the income of the
deceased at Rs.60,000/- p.a., i.e. Rs. 5,000/- per
month. It is no doubt true that following the
judgment of the Apex Court in the case of Pranay
Sethi (supra), the appellants would be entitled to
prospective income to the tune of 25% and after
deducting 1/3rd towards personal expenses, the
appropriate multiplier would be that of 14. Having
come to the aforesaid conclusion, the appellants
would be entitled to compensation under the head of
loss of dependency as under :-
Rs.5,000/- + Rs. 1,250/- (25% prospective
income) = Rs.6,250/- - Rs. 2,083/- (1/3rd
deduction towards personal expenses) =
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
Rs.4,167/- X 12 X 14 (multiplier) =
Rs.7,00,000/- (Loss of Dependency)
Over and above the same, the appellant no.1 who was
minor on the date of the accident would be entitled
to parental consortium of Rs.40,000/- and Rs.15,000/-
as loss of estate and Rs.15,000/- as funeral charges.
Thus, the appellants would be entitled to
compensation as under -
Loss of Dependency - Rs.7,00,000/-
Parental consortium - Rs. 40,000/-
Loss of estate - Rs. 15,000/-
Funeral charges - Rs. 15,000/-
-------------
Total compensation Rs.7,70,000/-
=============
7. After deducting 1/3rd share of husband being
tortfeaser, i.e., Rs.2,56,666/-, the appellants would
be entitled to compensation of Rs. 5,13,334/-. As
the Tribunal has awarded Rs.3,08,500/-, the
appellants would be entitled to additional
compensation of Rs.2,04,834/- with 7.5% interest per
annum on the enhanced compensation and costs from the
date of filing of the claim petition till its
realisation. The impugned judgment and award stands
modified to the aforesaid extent. The insurance
company shall deposit the additional/enhanced amount
along with interest from the date of the claim
petition as provided in this judgment within a period
of eight weeks from the date of the receipt of this
judgment.
C/FA/1456/2010 JUDGMENT DATED: 09/12/2021
8. 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)
BIJOY B. PILLAI
