Shardaben Wd/O Amarsinh Mulibhai ... vs Bhagwanbhai Dattubhai Pavar
2021 Latest Caselaw 18527 Guj

     C/FA/1413/2011                               JUDGMENT DATED: 17/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1413 of 2011


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

================================================================

1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
       SHARDABEN WD/O AMARSINH MULIBHAI GOHIL & 5 other(s)
                           Versus
           BHAGWANBHAI DATTUBHAI PAVAR & 4 other(s)
================================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
DELETED(20) for the Defendant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 5
NANAVATI ASSOCIATES(1375) for the Defendant(s) No. 4
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 2.1
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 17/12/2021

                             ORAL JUDGMENT

1. This appeal is filed by the appellants - original claimants

seeking enhancement of the compensation amount awarded by

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

the Motor Accident Claims Tribunal (Main), Surat (hereinafter

referred to as "the Tribunal") vide impugned judgment and

award dated 21.10.2008 passed in M.A.C.P. No.487 of 1991,

whereby the Tribunal has partly allowed the claim petition and

awarded a sum of Rs.1,42,800/- along with interest at the rate of

9% p.a.

2. Brief facts of the present case are that on 24.02.1991, at

about 9.30 p.m., one Amarsinh was travelling in his motor car

bearing registration No.GBU-450 from Bharuch to Surat on the

left side of the road with moderate speed and when he reached

within the limits of Village: Mahuvej, at that time, opponent no.1

came driving truck bearing registration No.GJ-6-T-4923 from

opposite direction in excessive speed and in rash and negligent

manner, lost control over the truck, dashed in front side of the

motor car which was driven by said Amarsinh, as a result of

which, he sustained serious injuries and he succumbed to the

injuries. Hence, the legal heirs of the deceased Amarsinh have

filed M.A.C.P. No.487 of 1991 before the Tribunal, which came to

be partly allowed by the Tribunal and awarded a sum of

Rs.1,42,800/- along with interest at the rate of 9% p.a.

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

3. It came to be held by the Tribunal that said amount was

ordered to be awarded to the dependents. Not being satisfied

with the quantum of compensation awarded, this appeal has

been filed.

4. Heard Mr.MTM Hakim, learned counsel appearing for the

appellants, Mr.Maulik Shelat, learned counsel appearing for

respondent No.3 - Insurance Company and Mr.Palak Thakkar,

learned counsel appearing for respondent No.5 - Insurance

Company.

5. Mr.Hakim, learned counsel appearing for the appellants has

submitted that the Tribunal has committed a serious error in

awarding abysmally very less compensation without considering

the material evidence available on record and in particular he

would draw the attention of this Court to the documentary

evidence and contend that income of the deceased, as per the

record, has not been considered by the learned Tribunal as the

deceased was serving as driver with Vinaj Agencies and his

salary certificate was produced on record. He has submitted that

even the future prospective income was also not considered by

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

the learned Tribunal nor proper multiplier was applied nor

considered dependency benefit, while considering the amount of

compensation. He has further submitted that the learned

Tribunal has committed serious error of facts and law in not

considering the income of the deceased. He has also submitted

that the Tribunal has not awarded just and reasonable

compensation. He has submitted that additional amount of

premium paid by the owner of the ambassador car which was

driven by the deceased and, therefore, the Insurance Company

cannot be exonerated from its liability. Hence, he prays for

enhancement of compensation under all heads.

6. As against that, Mr.Shelat, learned counsel appearing for

respondent No.3 and Mr.Thakkar learned counsel appearing for

respondent No.5 have supported the impugned judgment and

award passed by the Tribunal and in support, they have

submitted that the Tribunal has rightly considered the income at

Rs.1200/- per month of the deceased. They have opposed

enhancement on the ground that there is no cogent and

convincing reliable evidence produced by the claimants and,

therefore, the appeal could be dismissed.

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

7. Having considered the averments made in the appeal,

submissions canvassed by the learned counsel appearing for

both the sides and considered the facts of the case and on

perusal of the record and proceedings of the case, it appears

that it is the case of composite negligency on the part of the

vehicles. It appears from the record that the Tribunal has not

awarded just compensation to the next kin of the deceased. It

appears from the record that the deceased was serving as driver

and at the time of incident, he was aged about 36 years only and

the fact that the accident took place only on the negligency of

the driver of the truck and, therefore, considering overall fact

and documentary as well as oral evidence, it is complete

negligency on the part of the driver of the truck.

8. The aspects relating to the accident, issuance of policy to

the offending vehicle and same being in force or vogue as on the

date of accident are all aspects which are not in dispute and as

such they are not delved upon by me in the present appeal as it

would be repetition of facts.

9. The records on hand would clearly indicate that accident

had occurred on 24.02.1991, at about 9.30 p.m. The charge-

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

sheet has been filed by the jurisdictional police against the driver

of the offending vehicle i.e. truck bearing registration No.GJ-6-T-

4923. This is not disputed by the insurer. The contents of the FIR

and the panchnama are not challenged by the insurer. These

aspects though noticed by the Tribunal has awarded the

compensation which is on lower side.

10. That Tribunal has assessed 40% negligency on the part of

the driver of the ambassador car and 60% negligency on the

part of the driver of the truck. Considering the fact that even the

deceased was entitled to get compensation from respondent

no.5 of the ambassador car under the Employee's Compensation

Act, 1923 and calculation as per the Employee's Compensation

Act, 1923 schedule and as the deceased was aged 36 years and

as per the quantum, the claimants are entitled to Rs.1,94,000/-.

Therefore, the liability of respondent no.5 is as under:-

Next Income Rs.2000 per month x 50% = Rs.1,000 x 194.64 (factor) = Rs.1,94,640/-.

11. Considering the above facts and liability of 40% is

considered on the part of respondent no.5 - insurance company,

it comes to Rs.1,73,400/- and 60% on the part of respondent

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

no.3 - insurance company is considered it comes to

Rs.2,60,100/- from the total amount of compensation of

Rs.4,33,500/-. Therefore, the respondents no. 5 and 3 are

directed to deposit the said amount respectively along with

interest from the date of application till realization of the

amount.

12. Considering the decisions of the Hon'ble Apex Court in the

case of Sarla Verma and others Vs. Delhi Transport

Corporation and another [(2009) 6 SCC 121], National

Insurance Company Limited Vs. Pranay Sethi and others,

(2017) 16 SCC 68 and United India Insurance Company

Limited Vs. Satinder Kaur alias Satwinder Kaur and

others, AIR 2020 SC 620, I am of the considered view that the

appellants are entitled to get additional amount of compensation

considering the income of the original claimant at Rs.1500/- plus

40% rise and the appeal requires to be allowed and the

impugned judgment and award requires to be substituted by

enhancing the amount of compensation and, therefore, the

compensation is required to be redetermined as under:-

Future loss of income                                       Rs. 18,900/-






        C/FA/1413/2011                              JUDGMENT DATED: 17/12/2021



Rs.1500 per month
Rs.1500 x 40% prospective rise = Rs.600

Rs.2100 (1500 + 600) - Rs.525 (1/4th towards personal expenses) = Rs.1575 x 12 Rs.18,900 x 15 multiplier Rs. 2,83,500/-

Loss of consortium                                          Rs. 1,20,000/-
Loss of estate                                              Rs.     15,000/-
Funeral expenses                                            Rs.     15,000/-
Total compensation                                          Rs. 4,33,500/-
Less: Compensation awarded by the Tribunal                  Rs. 1,42,800/-
Enhanced amount                                             Rs. 2,90,700/-


         Accordingly,    a   sum     of     Rs.2,90,700/-     as     additional

compensation requires to be awarded toward future loss of

income, which is just and reasonable compensation and the

same is awarded in addition to Rs.1,42,800/- awarded by the

Tribunal. However, the appellants are entitled to the enhanced

amount of compensation of Rs.2,90,700/- amount along with

interest at the rate of 6% from the date of application till

realization of the amount.

13. For reasons aforestated, I proceed to pass following order.

(i)        Appeal is partly allowed.


(ii)       Judgment and award dated 21.10.2008 passed by the

Motor Accident Claims Tribunal (Main), Surat in M.A.C.P.

No.487 of 1991 is hereby modified and in addition to what

C/FA/1413/2011 JUDGMENT DATED: 17/12/2021

has been awarded by the Tribunal a sum of Rs.2,90,700/-

with interest at the rate of 6% per annum is awarded

which shall be from the date of petition till date of

payment of deposit whichever is earlier.

(iii) The insurance companies are directed to deposit amount

of compensation with interest at the rate of 6% as early as

possible within an outer limit of eight weeks from the date

of receipt of certified copy of this order.

(iv) The apportionment and order for disbursement as made

by the Tribunal in paragraph no.26 of the operative

portion of the order shall hold good for the substituted

award.

Record and proceedings be sent back to the concerned

Court, forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL