Gujarat High Court

Jikuben Chikabhai Kothari vs Shaileshbhai Damjibhai Mulani on 20 February, 2021

Bench: Vaibhavi D. Nanavati

          C/FA/1312/2020                                          JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 1312 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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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 ?

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                         JIKUBEN CHIKABHAI KOTHARI
                                   Versus
                       SHAILESHBHAI DAMJIBHAI MULANI
==========================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1,3
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                   Date : 20/02/2021

                                  ORAL JUDGMENT

1. This First Appeal is filed by the

appellants - original claimants under Section

173 of the Motor Vehicle Act challenging the

C/FA/1312/2020 JUDGMENT

judgment and award dated 30.10.2018 passed by

the learned Motor Accident Claim Tribunal at

Jetpur in Motor Accident Claim Petition

No.404 of 2012.

2. Brief facts of the case are that on the day

of accident i.e. on dated 22.10.2010 at about

1:00 p. m., near Village : Pidhathida, on

Jetpur -- Rajkot National Highway, the

deceased Chikabhai Mathurbhai Chikani was

traveling in Eicher Matador bearing No. GJ

was the owner of the said vehicle. When the

said vehicle reached near Village :

Pithadiya, on Jetpur -- Rajkot National

Highway, at that time, the said vehicle

dashed with the Stationery Truck bearing No.

GJ3U6332 on its backside, which was

Standing without any signal or barriers. AS a

result thereof, the deceased Chikabhai

Mathurbhai Chikani sustained the grievous

injuries and the deceased succumbed to the

C/FA/1312/2020 JUDGMENT

injuries.

3. Heard Mr.Nishit A. Bhalodi, learned

advocate for the appellants, Ms. Kirti S.

Pathak, learned advocate for the respondent

No.2 and Mr. Maulik J. Shelat, learned

advocate for the respondent No.4.

4. Admit. Ms. Kirti S. Pathak, learned

advocate waives service of admission of

appeal on behalf of the respondent No.2 and

Mr. Maulik J. Shelat, learned advocate waives

service of admission of appeal on behalf of

the respondent No.4.

5. Mr.Nishit A. Bhalodi, learned advocate

for the appellants has submitted that the

judgment and award passed by the Tribunal is

improper, unjust and against the provisions

of law.

6. He has submitted that the learned Tribunal

has committed error by considering only

C/FA/1312/2020 JUDGMENT

Rs.3000/ as monthly income of the deceased.

He has submitted that the learned Tribunal

ought to have considered that the deceased

was 45 years old and had very bright future

if he would not have met with unfortunate

accident. He has submitted that the learned

Tribunal ought to have considered income of

the deceased by relying upon the schedule of

minimum wages as the deceased was skilled

centering worker.

7. He has submitted that the learned Tribunal

has committed error by deducting 1/3 for the

personal expenses of the deceased. He has

submitted that there are five claimants,

hence the learned Tribunal ought to have

deducted 1/4 for the personal expenses of the

deceased as per the ratio laid down in case

of Sarla Verma, Sarla Verma (Smt.) and Ors.,

vs. Delhi Transport Corporation and Anr.,

reported in (2009) 6 SCC 121. He has

submitted that the learned Tribunal has

C/FA/1312/2020 JUDGMENT

committed error by allowing only Rs.30,000/

under the head of Consortium. The learned

Tribunal ought to have allowed Rs.40,000/

consortium to each appellant by relying upon

the judgment of Hon'ble Supreme Court in Case

of Magma General Insurance Co. Ltd. V. Nanu

Ram Alias Churu Ram & Ors. [Civil Appeal No.

9581 of 2018]. He has submitted that the

learned Tribunal ought to have allowed Rs.

1,00,000/under the head of Love and

Affection. The appellant relies upon the

judgment of Hon'ble Supreme Court in the case

of Magma General Insurance Co. Ltd.

(Supra).

8. Mr. Maulik Shelat, learned advocate for the

respondent No.4 - Insurance Company has

submitted that the judgment and award passed

by the learned Motor Accident Claim Tribunal

at Jetpur is just and proper and do not

require any interference. He submitted that

the Tribunal has correctly taken the income

C/FA/1312/2020 JUDGMENT

as there is no proof of income and also

applied the correct multiplier and the same

requires no interference.

9. I have heard learned advocates for the

respective parties at length. I have perused

the averments made in the memo of appeal. The

original claimants produced sufficient

evidence before the Tribunal regarding income

and age of the deceased, which is just and

proper. The choice of the multiplier is

determined by the age of the claimant. The

multiplier method is logically sound and

legally well established. Hence this Court is

inclined to accept the multiplier of 14 as

per the decision in the case of Sarla Verma

(Smt.) and Ors., vs. Delhi Transport

Corporation and Anr., reported in (2009) 6

SCC 121. Keeping that in mind, this Court is

of the view that multiplier of 14 is just and

proper.

C/FA/1312/2020 JUDGMENT

10. Considering the facts of the case judgment

and award dated 30.10.2018 passed by the

learned Motor Accident Claim Tribunal at

Jetpur in Motor Accident Claim Petition

No.404 of 2012 is modified to the extent that

monthly income of the deceased be considered

Rs.4,000/ instead of Rs.3,000/. As per the

judgment of the Sarla Verma (Supra) the there

shall be deduction of 1/4 for the personal

expenses of the deceased as the number of

claimants are 5. Table is produced

hereinbelow for sake of convenience. Hence

the award comes to ;

                         Compensation                    Calculation in
                                                          First Appeal
(A)       Future Loss
(i)       Actual Income                              4000
(ii)      Prospective Income                         5000 (25%)
(iii) Deduction of amount spent                      1250(1/4)
      by the decd. on himself
(iv)      Future Loss Per Annum                      3750 x 12 = 45000

(A)       Future Loss                                6,30,000
(B)       Conventional Amount                        70,000
          Total Compensation                         7,00,000



  Total            amount         of      the       award          comes            to





       C/FA/1312/2020                                           JUDGMENT



  Rs.7,00,000/.                    The      learned      Tribunal              has

  passed               the        award     of     Rs.4,80,666/.               The

present respondents - claimants are therefore

entitled to additional compensation of

Rs.2,19,334/ as amount of compensation along

with 7% from the date of application filed

before the Tribunal. The appellant is

directed to deposit the amount of

compensation alongwith interest within a

period of six weeks from the date of receipt

of copy of this judgment.

11. In the result, the appeal is partly

allowed.

12. In view of above, judgment and award dated