Kabhasing Jesing ... vs Ravikant Kedrik Christy
2021 Latest Caselaw 18734 Guj

     C/FA/1059/2009                                 JUDGMENT DATED: 24/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1059 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                        Sd/-

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

2    To be referred to the Reporter or not ?                              NO

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 ?

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                      KABHASING JESING PATEL(PATELIYA)
                                   Versus
                      RAVIKANT KEDRIK CHRISTY & 4 other(s)
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Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR PARTHIV A BHATT(5331) for the Defendant(s) No. 3,4
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 24/12/2021

                               ORAL JUDGMENT

1. The appellant herein - original claimant has preferred the present First Appeal against the judgment and award passed in Motor Accident Claim Petition No.811 of 2001 by the Motor Accident

C/FA/1059/2009 JUDGMENT DATED: 24/12/2021

Claims Tribunal, Panchmahals at Godhra, which was subsequently transferred to Motor Accident Claims Tribunal, Dahod and new Motor Accident Claim Petition Number was given as MACP No.4134 of 2000 dated 30.11.2007. The claimant has filed the claim petition to get compensation of Rs.3 lakhs from the respondents in vehicular accident, which had occured on 09.03.2001, whereby the appellant lost his father - Jesingbhai Patel. The Tribunal has awarded Rs.1,58,000/- with 9% interest p.a.. Therefore, the present appeal is filed for enhancement before this Court by the appellant claimant.

2. The brief facts of the present case are that, the deceased Jesingbhai Patel, who happened to be a father of the claimant - appellant herein, was coming towards Limkheda from Dahod in Jeep bearing registration No.GJ-17-C--1968 on 09.03.2001 and when the said Jeep reached near Sim of Village - Vateda on Dahod-Godhra road, at that time, one S.T.bus bearing registration No.GJ-18-V-7547 came from Godhra side and dashed with the Jeep and Jesingbhai has sustained serious injuries and ultimately died on the spot. The complaint was lodge with Limkheda Police Station being C.R. I No.49 of 2001 regarding such accident. The claimant has therefore filed a claim petition to get compensation of Rs.3 lakhs before the Tribunal at Godhra, which was subsequently transferred to Dahod. Summons were issued to the respondents. Respondents No.1 and 2 had appeared through their advocate and filed written statment on 23.03.2001, where the defense of denial has been taken and all the averments made in claim petition regarding incident have been denied. The ST Corporation has denied the negligence on the part of the ST driver and has prayed for dismissal of the claim petition with cost. Respondents No.3 and 4 are served with the notices, but they have chosen not to appear before the Tribunal. Respondent No.5 - New India Assurance Co. Ltd has appeared through the advocate and

C/FA/1059/2009 JUDGMENT DATED: 24/12/2021

had filed written statement at Exh.24, wherein the age, occupation and income of the deceased, as narrated in claim petition have been denied and also denied the involvement of the Jeep in the accident and has submitted that there was sole negligence of ST bus driver, who had lost control over the ST bus at the time of accident. Thereafter, the claimant has filed his affidavit at Exh.34 in support of his claim petition. The documentary evidence are also produced before the Tribunal, like FIR at Exh.28, Panchnama at Exh.29, Inquest Panchnama at Exh.30, Post-mortem report at Exh.31, RC book of Jeep at Exh.32, Insurance Policy of Jeep at Exh33. The Tribunal has framed the issues and has permitted the respective parties to lead the evidence and after considering the evidence, the Tribunal has awarded Rs.1,58,000/- by holding opponents No.1 and 2 jointly and severally liable, with 9% interest p.a. as well as opponents No.3, 4 and 5 also liable and apportioned 50% liability to respondents No.1 and 2 and 50% liability to respondents No.3, 4 and 5 of Rs.1,58,000/-. Being aggrieved by and dissatisfied with the impugned judgment and award, the present appeal is preferred by the original claimant - appellant herein for enhancement of the amount awarded by the Tribunal.

3. Learned advocate for the appellant - claimant has submitted that the amount which is awarded by the Tribunal is not just and proper and required to be enhanced as the Tribunal has considered the age of the deceased 50 years, which should be 47 years. He has also submitted that the Tribunal has erred in awarding multiplier 12, which should be 13 as per the decision of the Hon'ble Apex Court in case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, as the age of the deceased falls between 46 to 50 years. He has further submitted that in view of the decision in the case of Lata Waghwa versus State of

C/FA/1059/2009 JUDGMENT DATED: 24/12/2021

Bihar reported in AIR 2001 SC 3218 and also decision in the case of Govind Yadav versus New India Insurance Co. Ltd. reported in (2011) 10 SCC 683, it was held that in and around the year 2004, minimum wages payable to the worker/workman was Rs.3,000/- and therefore, the income of the deceased, who was labourer, should be considered as Rs.3,000/- per month and the Tribunal has considered only Rs.1,500/- monthly income of the deceased, which is on lower side. He has further submitted that the Tribunal has not properly considered the other aspects, (i) loss of estate, which should be Rs.15,000/- as per the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, (ii) funeral expenses, which should be awarded Rs.15,000/- as per the decision of Pranay Shethi (supra) of the Hon'ble Apex Court, (iii) future loss of prospective income, which should be added at least 25% in view of the decision of Hon'ble Apex Court in the case of Pranay Shethi (supra). He has submitted that, accordingly, the Tribunal ought to have awarded more compensation of Rs.2,61,000/- to the claimant.

4. Per contra, learned advocate Mr. Parthiv A. Bhatt for respondents No.3 and 4, learned advocate Ms. Kiran Pandey for respondent No.2 and learned advocate Mr. H.G. Majmudar for respondent No.5 have contested the appeal by submitting that the impugned judgment and award passed by the Tribunal is just and proper and no interference is required by this Court. They have submitted that no further enhancement need to be granted to the claimant in the facts and circumstances of the present case and in view of the settled position of law.

5. Mr. H.G. Majmudar, learned advocate for respondent No.5 Insurance Company has mainly contested on the ground that

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even if the Tribunal has considered the income of the deceased as Rs2,000/- per month and age of the deceased as considered in Para 12 of the impugned judgment as 50 years, the claimant is the only dependant of the deceased and he is aged about 28 years, therefore actually he cannot be considered to be a dependant of the deceased, but if we consider him to be the dependant of the deceased, then also 50% should be deducted towards the personal expenses of the deceased as the appellant is only surviving son of the deceased. Therefore, even 10% prospective income is added in the amount of Rs.2,000/- awarded by the Tribunal and after awarding multiplier of 11 as awarded by the Tribunal and after granting Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, then also, at the most, amount of Rs.47,200/- can be enhanced in addition to Rs.1,58,000/- awarded by the Tribunal. He has further submitted that if that amount is awarded, then on enhanced amount, interest should be awarded @ 7% p.a., instead of 9% p.a., which is awarded by the Tribunal in the impugned judgment and award. Therefore, he has fairly submitted that the amount of Rs.47,200/- can be awarded to the claimant - appellant over and above the awarded amount.

6. I have heard learned advocates for the respective parties. I have perused the record and proceedings of the Tribunal. I have also gone through the impugned judgment and award passed by the Tribunal. In Paras : 1 and 2 of the impugned judgment, the appellant has mentioned the age of the deceased - Jesingbhai Patel as 47 years. In inquest panchnama - Exh.30, the age of the deceased is shown as 52 years. While as per the post-mortem report, the age of the deceased is mentioned as 50 years. In such circumstances, in absence of birth certificate / school leaving certificate, the Tribunal has considered the age of the deceased as 50 years at the time of

C/FA/1059/2009 JUDGMENT DATED: 24/12/2021

accident. I find that the Tribunal has rightly taken into consideration the age of the deceased as 50 years and therefore, that finding of the Tribunal is proper. I further find that in view of the decisions cited at bar by learned advocate Mr. Kharadi for the claimant - appellant in the case of Lata Waghwa (supra) and Govind Yadav (supra), the minimum wages payable to the workman in and around the year 2004 was considered as Rs.3,000/- per month and therefore, submission of the appellant that the Tribunal has wrongly considered the income Rs.1,500/- is justified. The Tribunal has to consider Rs.3,000/- as monthly income of the deceased keeping in mind the above decisions of the Hon'ble Apex Court. Therefore, the income of the deceased should be considered Rs.3,000/- per month.

6.1 Further, the Tribunal has not awarded the amount under the head of loss of prospective income. I find that in view of the decision of Hon'ble Apex Court in the case of Pranay Shethi (supra), the future increase looking to the age of deceased 50 years, it should be 25%, as deceased was self-employed person and therefore, I find it proper to award 25% of the income of deceased as future increase in the income and accordingly, 25% of Rs.3,000/- would come to Rs.750/- which should be added in Rs.3,000/- + Rs.750/- = Rs.3,750/- toward future loss of income. I find that the Tribunal has deducted 1/3rd towards personal expenses. I agree with the submission made by learned advocate Mr. Majmudar for the Insurance Company that instead of 1/3rd, 1/2 i.e. 50% should be deducted from the future loss of income in view of the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), as the appellant is only surviving dependant of the deceased and therefore, 50% should be deducted from Rs.3,750/- which comes to Rs.1,875/-. I find that by considering Rs.1,500/- as income by deducting 1/3rd and thereafter 12 multiplier is applied and loss of income came to Rs.14,400/- and the Tribunal has also

C/FA/1059/2009 JUDGMENT DATED: 24/12/2021

awarded Rs.10,000/- towards expectation of life and Rs.2,000/- towards transportation expenses and towards funeral expenses, in all, Rs.1,58,000/- was awarded to the claimants. In my considered opinion that in view of the decision of Hon'ble Apex Court in the case of Pranay Shethi (supra), the Tribunal should award Rs.15,000/- under the head of loss of estate and Rs.15,000/- towards the funeral expenses and therefore, I held that the amount of Rs.30,000/- should be awarded under the above mentioned head towards conventional amount and therefore, if we calculate the aspect of loss of future income, which can be calculated as Rs.3,000/- per month income stead of rs.1,500/- as considered by the Tribunal, then 20% towards future increase of the income should be added, which comes to Rs.3,750/-, whereby the Tribunal has deducted 1/3 rd from that amount, but in my opinion, 50% should be deducted, which comes to Rs.1,875/- which should be multiplied by 13 multiplier looking to the age of deceased 50 years. The Tribunal has considered 12 multiplier, which should be 13 in view of the decisions of Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Shethi (supra). Therefore, calculating the amount Rs.1,825/-, multiplied by 12 months and with 13 multiplier, it comes to Rs.2,92,500/- which would be the amount of future loss of income. In view of the decision of Hon'ble Apex Court in the case of Pranay Shethi (supra), under the head of loss of estate, Rs.15,000/- should be added and under the head of funeral expenses Rs.15,000/- should be added. Therefore, total amount of compensation would come to Rs.3,22,500/- whereby the Tribunal has awarded only Rs.1,58,000/- to the claimant. Therefore, difference amount comes to Rs.1,64,500/- should be awarded by allowing this appeal to the claimant. Therefore, the amount is recalculated as under :

      Rs.2,92,500/-     towards future loss of income
      Rs. 15,000/-      towards loss of estate





       C/FA/1059/2009                                  JUDGMENT DATED: 24/12/2021



        Rs.      15,000/-       towards funeral expenses
        ---------------------
        Rs.3,22,500/-           Total


6.2              After deducting the amount which is awarded by the

Tribunal Rs.1,58,000/-, further amount of Rs.1,64,500/- is payable to the claimant by the respondents No.1 to 5 jointly and severally, which would meet the ends of justice.

7. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

8. In view of above, the following order is passed.

8.1 This appeal is partly allowed. No order as to costs.

8.2 The respondents No.1 to 5 are jointly and severally held liable to pay the compensation of Rs.1,64,500/- more, in addition to the awarded amount, to the claimant with 9% interest p.a., from the date of application till its realisation.

8.3              The impugned judgment and award passed in Motor





       C/FA/1059/2009                             JUDGMENT DATED: 24/12/2021

Accident Claim Petition No.4134 of 2000 by the Motor Accident Claims Tribunal, Dahod, dated 30.11.2007 is modified to the aforesaid extent.

8.4 Consequently, the respondents No.1 to 5 are directed to deposit the amount of Rs.1,64,500/- with 9% interest p.a. towards enhanced amount in addition to the amount which has already been awarded by the Tribunal by way of impugned judgment and award. Such amount shall be deposited within a period of six weeks from the date of receipt of this order.

8.5 On depositing such amount, the Tribunal shall disburse the same to the appellant, by account payee cheque, after due verification and after following due procedure, forthwith.

8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.

Sd/-

(SANDEEP N. BHATT,J) M.H. DAVE