Gujarat High Court
Kantibhai Jivabhai Padhiyar vs Ramsuresh Hichlal Sahu on 24 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/327/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 327 of 2021
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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KANTIBHAI JIVABHAI PADHIYAR
Versus
RAMSURESH HICHLAL SAHU
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2
MS KIRTI S PATHAK for the Defendant(s) No.3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/02/2021
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, challenging the judgment
and award dated 29.11.2019 passed by the Motor
Accident Claims Tribunal (Main), Anand in MACP No.305
of 2018, whereby the tribunal has partly allowed the
C/FA/327/2021 JUDGMENT
claim petition by awarding Rs.8,61,600/- to the
claimants with 9% interest and costs.
2. Having regard to controversy in narrow compass,
with consent of learned advocates for the respective
parties, the matter is taken up for final hearing
today.
3. The facts giving rise to the present appeal are
as under:
3.1 The accident took place on 16.02.2018 at around
9.45 hrs. in the morning on Dharmaj crossing to
Tarapur highway road, on Danteli Patiya, whereby due
to rash and negligent driving on the part of the
driver of the Dumper Truck, bearing registration
No.GJ-05-BU-8632, deceased - Rameshbhai Kantibhai
Padhiyar died, who was going as pillion rider on
motorcycle driven by opponent no.4. The claim
petition has been filed by the claimants wherein it
is alleged by the claimants that the deceased was
aged about 21 years at the time of accident and was
earning Rs.10,000/- per month.
3.2. The opponent nos.1, 2 and 4 though served with
the notices, they have not appeared before the
Tribunal to contest the petition. Opponent No.3-
Insurance Company has appeared through its lawyer and
filed its written statement at Exh.22 denying all the
facts and contentions as alleged in the claim
petition Exh.1. It was mainly contended that the
Insurance company is not liable to pay any amount of
compensation and prayed for dismissal of the claim
C/FA/327/2021 JUDGMENT
petition. The Tribunal by Exh.23 framed issues for
determination.
3.3 With regard to negligency aspect, Tribunal has
come to the conclusion that the accident occurred for
composite negligence on the part of the drivers of
the vehicles involved in the accident in which driver
of the dumper truck was held negligent to the extent
of 90% and the motorcyclist to the extent of 10% for
occurrence of the accident.
3.4 With regard to just and fair compensation
awarded by the tribunal, as per the say of the
claimants, the deceased was earning Rs.10,000/- at
the time of accident. Considering the nature of work
of the deceased and submission of the learned
advocate for the parties, Tribunal has considered
income of deceased as Rs.7700/- per month considering
40% towards prospective income. Thereafter, by ½
deduction towards loss of dependency per month and
adopting multiplier of 18, [(Rs.7700/- X (½) =
Rs.3850/- loss of dependancy value per month X 12 =
Rs.46,200/- loss of dependancy value per year X 18
multiplier], the Tribunal has awarded Rs.8,31,600/-
towards compensation. Tribunal, further awarded
Rs.30,000/- towards funeral expenses, loss to the
estate and loss of consortium, which lead to a total
compensation of Rs.8,61,600/-.
3.5 The Tribunal, held opponents jointly or
severally liable to pay the compensation of
Rs.8,61,600/- to the claimants together with
C/FA/327/2021 JUDGMENT
proportionate costs and interest at the rate of 9%
per annum from the date of claim petition till the
payment to the claimants.
3.6 Being aggrieved and dissatisfied with the
judgment and award, the appellants-claimants have
preferred this appeal.
4. Heard Mr. Nishit A. Bhalodi, learned advocate
for the appellants and Ms. Kirti S. Pathak, learned
advocate for the opponent no.3- Insurance Company.
5. Mr. Nishit A. Bhalodi, learned advocate for the
appellants submitted that the Tribunal has committed
error in considering the income of the deceased as
Rs.5500/- per month. The Tribunal was required to
consider income of the deceased as Rs.10,000/- per
month considering the prevailing minimum wages on the
date of accident i.e. 16.06.2018. He has not pressed
other contentions raised in the appeal and limited
grievance to the consideration of the income only.
6. On the other hand, Ms. Kirti S. Pathak, learned
advocate for the respondent-Insurance company
submitted that the award passed by the tribunal is
just and proper and it does not require any
interference.
7. Having heard learned advocates appearing for
both the sides, it appears that the tribunal has
committed error in considering the amount of income
of the deceased as Rs.5500/- per month. Keeping in
view the submissions made by learned advocate for the
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appellants, Mr. Nishit Bhalodi, this Court is of the
opinion that actual income is required to be
considered at Rs.7500/-. Accordingly, the calculation
for additional compensation is produced as under:
Compensation As per Award As per
under calculation
challenge in First
Appeal
(A) Future Loss:-
(i) Actual Income 5500 7500
(ii) Prospective Income 7700 (40%) 10,500(40%)
(iii) Deduction of amount 3850(1/2) 5250(1/2)
spent by the deceased
on himself
(iv) Future Loss per annum 3850X12 = 5250X12=63000
46200
Future Loss 8,31,600 11,34,000
(B) Conventional Amount 30000 30000
Total Compensation 8,61,600 11,64,000
8. In view of the above calculation, the claimants
are entitled to the enhancement of amount of
compensation of Rs.3,02,400/- with 7.5% interest per
annum. The compensation amount shall be paid by the
opponent no.3-Insurance Company from the date of
filing of the appeal till realization. The opponent
no.3-Insurance Company is directed to deposit the
enhanced amount of Rs.3,02,400/- within the period of
ten weeks from the date of the receipt of this order.
The Tribunal shall disbursed the said amount in
favour of the claimants after proper verification and
undergoing the requisite procedure within a period of
four weeks thereafter.
C/FA/327/2021 JUDGMENT
9. In the result, the appeal is partly allowed. The
judgment and award dated 29.11.2019 passed by Motor
Accident Claims Tribunal (Main), Anand in Motor
Accident Claims Petition No.305 of 2018 is modified
to the aforesaid extent.
10. Record and Proceedings, if any, be sent back to
the trial Court concerned, forthwith.
(VAIBHAVI D. NANAVATI,J)
NEHA
