Gujarat High Court
Suhana Ashrf Khalpa vs Dharasing Arjunlal Gurjar on 24 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/757/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 757 of 2021
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SUHANA ASHRF KHALPA & 3 other(s)
Versus
DHARASING ARJUNLAL GURJAR & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/02/2021
ORAL ORDER
1. The present appeal is filed under the provisions of Section 173 of
the Motor Vehicles Act, 1988 (for short "the MV Act") challenging the
impugned judgment and award passed by the Motor Accident Claims
Tribunal, Panchmahals at Godhra in Motor Accident Claim Petition
No.203 of 2016.
2. Heard Mr. Hiren Modi, learned advocate for the appellants-
original claimants and Mr. Rathin P. Raval, learned counsel for
respondent No.3-United India Insurance Company Ltd. Though served,
none appears for the respondent nos.1 and 2.
3. In light of the aforesaid fact and at the request of learned counsel
for the appellant and the Insurance Company, the appeal is taken up for
final disposal. Learned counsel for the parties has also provided copies of
evidence adduced before learned Tribunal for perusal of this Court.
4. The brief facts of the case are as under:-
4.1. That the husband of the appellant no.1, father of the appellant no. 2
& 3 namely Ashraf Abdulla Khalpa (herein after called as deceased), on
C/FA/757/2021 ORDER
date 03.01.2016, husband of the appellant no.1, appellant no 1, and
daughter of appellant no.1 were going from Sarangpur to his uncle's
house by Motorcycle No. GJ-20L-3068. It is submitted that motorcycle
was driven by the husband of the appellant no.1. When it reached near
Lilesra bypass road Ashrafbhai was driving the motorcycle slowly on
correct side of the road.
4.2. As they reached near Trupti Hotel, at that time the respondent no.1
came by driving his Trailer No. RJ-52-GA-0252 in rash and negligent
manner and dashed with back side of the motorcycle of the deceased. It is
submitted that due to the said accident, he fell down on the road and
sustained serious injuries, which resulted into the death. The appellants
have prayed for Rs.47,66,000/- as compensation for unnatural death and
untimely death against the present respondent by filing Motor Accident
Claim Petition.
5. Learned advocate Mr.Hiren Modi for the appellant has submitted
that the Tribunal has committed an error while considering the income of
the deceased at Rs. 4,500/-per month instead of Rs.15,000/- as the
deceased was doing plumbing work. It is further submitted that the
accident occurred in the year 2016 and even the minimum wages for that
year was Rs.7,444/- per month. It is, therefore, submitted that the tribunal
has erred in not considering the income of the deceased at Rs.4,500/-per
month.
6. Learned advocate Mr.Hiren Modi for the appellant has submitted
that the Tribunal committed an error while not considering the future
prospective income of the deceased. The Tribunal ought to have
considered the fact that the deceased was 30 years old and as per the ratio
C/FA/757/2021 ORDER
laid down in the case of National Insurance Company Ltd. Vs. Pranay
Sethi, reported in 2017 (16) SCC 680 and the Hon'ble High Court 50% of
the rise is required to be considered as perspective income of the
deceased. He has submitted that the learned tribunal has erred in not
considering the fact and nor awarding future prospective income of the
deceased. He has consented that the grant of interest on the enhanced
compensation be calculated at 6% from the date of application till
releasing the amount. Learned advocate for the applicant restricted his
submissions to the above contentions and not press other contentions.
7. Learned advocate Mr.Hiren Modi for the appellant has submitted
that the Tribunal has awarded a merge amount of Rs.70,000 under the
different conventional heads.
8. Per contra, Mr. Rathin P. Raval, learned counsel for respondent
No.3-United India Insurance Co. Ltd. has supported the impugned
judgment and award. He contended that in absence of the evidence of
income, the Tribunal has rightly fixed the amount of monthly income of
Rs.4,500/pm and has not committed an error while computing the amount
of compensation. It is also submitted that the Tribunal has rightly
calculated the compensation and he supported the impugned Judgment
and argued that the award is just and proper. He further argued that the
interest is awarded at 9% which is on higher side and hence the judgment
meets the criteria of just compensation.
9. Having heard learned counsel for the parties, on perusal of the
impugned judgment and award and also considering the evidence on
record, the tribunal committed an error while considering the income of
the deceased at Rs.4,500/-. This Court is of the opinion that Rs.7,000/-
C/FA/757/2021 ORDER
per month be considered towards the income of the deceased in view of
the fact that the minimum wages of that year 2016 was Rs.7,444/- per
month. This Court is of the opinion that Rs.7,000/- per month be
considered as income of the deceased.
10. Further, it is required to be noted that while fixing the amount of
loss of dependency, the Tribunal should have considered future
prospective income of the deceased at 40% in view of the judgment of
Pranay Sethi (supra).
11. The Tribunal rightly deducted ¼ of amount towards the personal
expenses considering the fact that the claimants are 4 in numbers, which
is as per the ratio laid down in case of Pranay Shetty (Supra).
12. As far as compensation under the conventional heads is concerned,
following the ratio laid down by the Apex Court in the case of National
Insurance Company Ltd. (supra), the appellants would be entitled to Rs.
70,000/under the conventional heads. Thus, the appellants would be
entitled to get compensation of Rs.15,69,400/-. Table is produced
hereinbelow for the sake of convenience. Hence the award comes to:-
Award by Ld.Tribunal Calculation by High Court
Rs.4,500/- Income per month X 12 Rs.7,000/- Income per month +
months=Rs.54,000/- yearly income Rs.2,800/- 40% future prospects
income=Rs.9,800/-
Rs.13,500/- ¼th towards personal Rs.2,450/- ¼th towards personal expenses
expenses
Rs.40,500/- x 17 Multiplier = Rs.7,350/- x 12 Months x Rs.88,200/- x
Rs.6,88,500/- 17 Multiplier = Rs.14,99,400/-
Rs.688500 + 70000 conventional heads Rs.14,99,400 + 70000 conventional heads
Total Rs.7,58,500/- Total Rs.15,69,400/-
C/FA/757/2021 ORDER
13. The award of the tribunal is modified to the extent that, as the
Tribunal has already awarded compensation of Rs.7,58,500/-, the
appellants would be entitled to get additional compensation of Rs.
8,10,900/(Rs.15,69,400/minus Rs.7,58,500/-) the appellants/claimants are
entitled for additional compensation of Rs.8,10,900/with interest at the
rate of 6% p.a. on enhanced amount as agreed by the learned advocate for
the appellant from the date of filing of claim petition till its realization.
14. In view of the above, the appeal is partly allowed to the aforesaid
extent. The Respondent No.3-Insurance Company is directed to deposit
said additional amount of Rs. 8,10,900/-with interest at the rate of 6% p.a.
from the date of filing of claim petition till its realization before the
Tribunal within a period of three months from today. The tribunal is
directed to disburse the same in favour of the claimants within a period of
eight weeks after proper verification in accordance with law. The deficit
court fees if any be paid by the appellants with the registry.
15. Accordingly, present appeal is partly allowed. The impugned
judgment and award stands modified to the aforesaid extent. Record and
proceedings be remitted back to the concerned tribunal forthwith if
received by this Court. No order as to costs.
(VAIBHAVI D. NANAVATI,J)
ABHISHEK
