Gujarat High Court
Bhikhiben Wd/O Babulal Narbheram ... vs Jabbarsinh Nathusinh Bhati on 20 December, 2021
Bench: Vipul M. Pancholi
Modification of Order dtd.
C/FA/3528/2021 03/12/2021 in R/FA/3528/2021ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3528 of 2021
[On note for speaking to minutes of order dated 03/12/2021 in
R/FA/3528/2021 ]
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BHIKHIBEN WD/O BABULAL NARBHERAM MISTRY MEVADA
Versus
JABBARSINH NATHUSINH BHATI
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Appearance:
MR KK THAKKAR(2834) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR TUSHAR CHAUDHARY(5316) for the Defendant(s) No. 4,5
MR.DIPEN F CHAUDHARI(6740) for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 20/12/2021
ORAL ORDER
Perused the Note for Speaking to Minutes.
Accordingly, the last line of Paragraph-16 of
the order dated 03.12.2021 shall be read as under:
"....The opponents are jointly and severally
liable to pay the aforesaid additional amount of
Rs.4,76,036/- to the appellants - original
claimants together with interest @ 7.5% per
annum from the date of the claim petition till
realization excluding period of 247 days out of
said period as per order dated 17.09.2021 passed
by this Court in Civil Application No.2800 of
2020."
Registry to make necessary correction in the
order and issue a fresh writ accordingly.
(VIPUL M. PANCHOLI, J)
piyush
Present Order is modified vide
C/FA/3528/2021 Order dtd. 20/12/2021 in ORDER DATED: 03/12/2021
R/FA/3528/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3528 of 2021
==========================================================
BHIKHIBEN WD/O BABULAL NARBHERAM MISTRY MEVADA
Versus
JABBARSINH NATHUSINH BHATI
==========================================================
Appearance:
MR KK THAKKAR(2834) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR TUSHAR CHAUDHARY(5316) for the Defendant(s) No. 4,5
MR.DIPEN F CHAUDHARI(6740) for the Defendant(s) No. 4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 03/12/2021
ORAL ORDER
1. This appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to as
the 'Act of 1988') by the appellants - original
claimants challenging the judgment and award dated
8.4.2019 passed by the Motor Accident Claims Tribunal
(Aux.), Palanpur, Dist.Banaskantha (hereinafter
referred to as the 'Tribunal') in Motor Accident
Claims Petition No.65 of 2014 and prayed for
enhancement of compensation.
2. Heard learned advocate Mr.K.K.Thakkar for the
appellants, learned advocate Mr.Maulik Shelat for
opponent no.3, learned advocate Mr.Tushar Chaudhary
for opponent nos.4 and 5 and learned advocate
Mr.G.C.Mazmudar for opponent no.6.
Present Order is modified vide
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3. Since limited contention is raised to make the
compass of the controversy narrow, the appeal could
be decided on legal principles alone for which the
Record and Proceedings are not necessary to be called
for. At the request of learned advocates for the
parties and as the issue involved in the present
appeal is covered by the decision rendered by this
Court in First Appeal No.91 of 2020 decided on
06.02.2020, this appeal is taken up for final hearing
at admission stage and disposed off by this order.
4. That the present appellants - original claimants
filed Claim Petition under Section 166 of the Act of
1988 for recovery of compensation for the death of
deceased Babulal Narbheram Mistry (Mevada), who died
in a vehicular accident. It is the case of the
original claimants that on 24.2.2014, when the
deceased was going to attend the marriage ceremony of
his younger son by sitting in a jeep bearing no.GJ-
2A-3394 of a relative, in the seam of village
Sakalana on Dhota-Karshanpura road, a truck no.GJ-2-
Y-4939 came rashly and negligently and at a very high
speed from the opposite direction and dashed with the
jeep. In the said accident, the deceased suffered
fatal injuries and succumbed to it. It is the case of
the original claimants that the deceased was aged
about 54 years at the time of accident and was
earning Rs.30,000/- per month from his furniture shop
named `Panchavati Furniture'.
Present Order is modified vide
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5. All the opponents appeared before the learned
Tribunal and denied the claim of the claimants.
Thereafter, oral and documentary evidence was led
before the Tribunal. The Tribunal, vide judgment and
award dated 8.4.2019, partly allowed the claim
petition and thereby held the opponent Nos.1 to 5
jointly and severally liable to pay compensation of
Rs.12,58,000/- to the original claimants together
with interest @ 9% per annum from the date of claim
petition till realization of the amount. The
opponents were also directed to pay the cost to the
original claimants.
6. While passing the aforesaid judgment and award,
the Tribunal considered the aspect of negligence as
well as quantum. On the basis of the FIR Exh.39,
Panchnama Exh.40 as well as other documentary
evidence, it was held by the Tribunal that the
drivers of both the vehicles were negligent.
7. On the aspect of quantum, considering the
acknowledgment forms for three consecutive years,
shop registration certificate, professional tax
certificate the Tribunal came to the conclusion that
the deceased was earning Rs.15,000/- per month at the
time of accident. Moreover, relying upon the decision
rendered by the Hon'ble Supreme Court in the case of
Sarla Verma v. Delhi Transport Corporation, reported
in (2006) 9 SCC 121, the multiplier of 9 was adopted
considering the age of the deceased. The Tribunal
thereafter referred to the decision of the Hon'ble
Present Order is modified vide
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Supreme Court rendered in the case of National
Insurance Company Ltd. v. Pranay Sethi, reported in
(2017) 16 SCC 680 and added 10% towards prospective
income loss considering the age of the deceased and
thus arrived at the figure of Rs.11,88,000/- towards
the loss of dependency. The Tribunal also awarded
lumpsum amount of Rs.55,000/- towards the loss of
estate and consortium. The Tribunal further awarded
Rs.15,000/- as funeral expenses and thus awarded
total compensation of Rs.12,58,000/- along with 9%
interest.
8. Learned advocate for the appellants submitted
that monthly income of Rs.15,000/- assessed by the
Tribunal is on lower side. It is contended that the
considering the documentary evidence produced viz.
acknowledgment forms for the three consecutive years
prior to the accident, shop registration certificate
and professional tax certificate, the Tribunal ought
to have considered monthly income of the deceased at
Rs.20,000/-.
9. On the other hand, learned advocates appearing
for the opponents submit that looking to the
documentary evidence which has been referred to in
the impugned judgment, appropriate order may be
passed.
10. Thus, considering the submissions canvassed by
learned advocate for the appellants and the
documentary evidence which has been referred to in
Present Order is modified vide
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the impugned judgment, this Court is of the view that
it would be appropriate if the income of the deceased
is calculated at Rs.20,000/-. As per the decision of
the Hon'ble Supreme Court in the case of Pranay Sethi
(supra), 10% is required to be added as prospective
income of the deceased. Thus, the figure comes to
Rs.22,000/- per month (Rs.20,000/- + Rs.2,000/- =
Rs.22,000/-).
11. Applying the monthly income of the deceased as
above, the compensation would have to be arrived at.
Since 1/3rd amount is required to be deducted from
Rs.22,000/- towards personal expenses, the final
figure comes to Rs.14,667/- (Rs.22,000/- - Rs.7,333/-
= Rs.14,667/-). Now, as per the decision of the
Hon'ble Supreme Court rendered in the case of Sarla
Verma (supra), if multiplier of 9 is adopted then the
final figure comes to Rs.15,84,036/- (Rs.14,667 x 12
x 9 = Rs.15,84,036/-). Thus the claimants -
appellants herein are entitled to get the amount of
Rs.15,84,036/- under the head of loss of dependency
as against Rs.11,88,000/- as awarded by the Tribunal.
12. Learned advocate for the appellants - original
claimants referred to the decision rendered by the
Hon'ble Supreme Court in the case of New India
Assurance Co. Ltd. v. Somwati and others, reported in
2020 (9) SCC 644 and contended that as per the said
decision, appellant no.1 being wife of the deceased
Babulal, she is entitled to get Rs.40,000/- under the
head of loss of spousal consortium, whereas appellant
Nos. 2 and 3 being sons of the deceased Babulal are
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entitled to get Rs.40,000/- each under the head of
loss of parental consortium and all the appellants
are entitled to get Rs.15,000/- under the head of
loss of estate and therefore the Tribunal has
committed an error in awarding lumpsum amount of
Rs.55,000/- under the head of loss of estate and
consortium.
13. At this stage, this Court would like to refer to
the relevant observations made by the Hon'ble Supreme
Court in para 38, 39, 40 and 42 of the decision of
Somwati and others (supra), 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.
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.
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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."
14. 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. Thus, this Court is
of the view that each appellant - original claimant
is entitled to get an amount of Rs.40,000/- under the
head of loss of consortium. Thus, total figure comes
to Rs.1,20,000/- under the head of loss of
consortium.
15. Thus, the appellants are entitled to get the
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following final amount as compensation:
1. Rs.15,84,036=00 towards future loss of income
2. Rs.1,20,000=00 towards loss of consortium
(spousal as well as parental)
3. Rs.15,000=00 towards loss of estate
4. Rs.15,000=00 towards funeral expenses
______________
Rs.17,34,036=00 Total
16. Thus, the Tribunal has committed an error in
awarding total compensation of Rs.12,58,000/- under
various heads. The appellants - original claimants
are, therefore, entitled to the additional amount of
compensation of Rs.4,76,036/- over and above the
amount of Rs.12,58,000/- as awarded by the Tribunal.
The opponents are jointly and severally liable to pay
the aforesaid additional amount of Rs.4,76,036/- to
the appellants - original claimants together with
interest @ 9% per annum from the date of the claim
petition till realization.
16. The appeal stands partly allowed. The judgment
and award dated 8.4.2019 passed by the Tribunal in
Motor Accident Claims Petition No.65 of 2014 shall
stand modified to the aforesaid extent by enhancing
the amount of compensation as above.
17. The disbursement of the aforesaid additional
amount of compensation shall be after proper
Present Order is modified vide
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identification of the claimants and following
procedure, by issuing the account payee cheque for
the proportionate amount.
(VIPUL M. PANCHOLI, J)
SRILATHA
