Bijalbhai Bharsang Vasava vs Piyush Shantilal Patel
2021 Latest Caselaw 3166 Guj

          C/FA/2519/2019                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2519 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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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                            BIJALBHAI BHARSANG VASAVA
                                       Versus
                              PIYUSH SHANTILAL PATEL
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,4
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                   Date : 24/02/2021

                                  ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied by the judgment and award dated 28.2.2018 passed by

C/FA/2519/2019 JUDGMENT

the Motor Accident Claims Tribunal (Aux.), Ankleshwar in MACP No.1864 of 2013, the appellant ­ original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal:­

That, the deceased Motilal Bijalbhai Vasava was traveling on Bajaj Super Scooter bearing registration no. GJ­16 6357 on 8.5.2002 with one Bharjibhai. It is the case of the original claimant that when the scooter reached on the place of accident, a truck bearing registration no. GJ­16 K­941 being driven in a rash and negligent manner came from the other side. As per the record, the truck driver made an attempt to overtake the scooter and dashed with the same. The deceased Motilal sustained serious injuries and was admitted to Rural hospital, Jhagadia and then to Civil Hospital, Bharuch, but ultimately, succumbed to the same. An FIR bearing CR no. I­77/02 came to be registered with Jhagadia Police Station and the present claim petition was filed under Section 163A of the Act and claimed compensation of Rs.3,00,000/­. It was the case of the original claimant before the Tribunal

C/FA/2519/2019 JUDGMENT

that the age of the deceased was 22 years. He was working in H.K. Engineering Enterprises with monthly salary of Rs.3,300/­. After considering the evidence on record including oral deposition of Bijalbhai Bharsangbhai Vasava - original claimant at Exh.18 and documentary evidence, such as FIR, inquest Panchnama, postmortem report, the Tribunal came to the conclusion that the income of the deceased was Rs.2,500/­ per month. The Tribunal, considering the fact that the deceased was Bachelor, deducted one­half of

multiplier, awarded a sum of Rs.2,70,000/­ as compensation under the head of loss of dependency. The Tribunal further awarded a sum of Rs.5,000/­ for funeral expenses and Rs.10,000/­ towards loss of estate and thus, awarded total compensation of Rs.2,85,000/­ with 9% interest from the date of filing of the claim petition till its realization and being aggrieved by the same, the present appeal is filed.

3. Heard Mr. Nishit Bhalodi, learned advocate for the appellant and Mr. H.G. Mazmudar, learned advocate for the insurance Company. Though served, no one appears for the other respondents. Mr. Mazmudar learned advocate for the insurance Company has provided copy of the

C/FA/2519/2019 JUDGMENT

relevant evidence for perusal of the Court.

4. Mr. Nishit Bhalodi, learned advocate for the appellant contended that while considering the compensation in an application under Section 163A of the Act, the Tribunal has to calculate the compensation as per the Second Schedule. Mr. Bhalodi contended that though there is no dispute as regards the income as well as the multiplier, the Tribunal has committed an error in deducting one­half in consideration of the personal expenses. Mr. Bhalodi contended that as per the Second Schedule, one­third is required to be deducted towards personal expenses and to the said extent, the impugned judgment and award deserves to be modified by allowing the appeal.

5. Per contra, Mr. Mazmudar, learned advocate for insurance Company has submitted that the Tribunal has awarded just compensation which does not require any alteration. Mr. Mazmudar contended that on the contrary, the Tribunal has awarded more amount than what is provided in the Second Schedule under the head of funeral expenses and loss of estate. Mr. Mazmudar therefore submitted that the impugned judgment and award may be modified on said aspect also.

       C/FA/2519/2019                                             JUDGMENT



6.   No     other       or     further           submissions,             grounds
     and/or       contentions         are        made      by   the       learned
     advocates           appearing              for     the         respective
     parties.

7. It is an admitted position that the original claim petition preferred by the claimant was filed under Section 163A of the Act. The Tribunal therefore has to calculate, assess and grant compensation as per the structured formula. Upon perusal of the Second Schedule, it clearly appears that in a fatal accident claim, one­third of the amount from the compensation is to be deducted towards personal expenses. It clearly appears from the impugned judgment and award that the Tribunal has deducted one­half on the ground that the deceased was a Bachelor. In opinion of this Court, while considering the compensation under Section 163A of the Act, the Tribunal has to strictly follow the structured formula and therefore, the deduction towards personal expenses should be as per the Second Schedule i.e. one­third and not one­half. Similarly, it is also found that the Tribunal has awarded a sum of Rs.10,000/­ as compensation under the loss of estate and Rs.5,000/­ as funeral expenses, which also deserve to be modified as per the Second Schedule. Having come to the aforesaid conclusion therefore, the appellant­

C/FA/2519/2019 JUDGMENT

original claimant could be entitled to compensation as under:­

Rs.3,60,000/­ (Rs.30,000/­ ­ 1/3) = Rs.20,000/­ x 18 + Rs.2,000/­ Funeral expenses + Rs.2,500/­ Loss of estate = Rs.3,64,500/­ Total compensation

8. Thus, the appellant ­ original claimant would be entitled to total compensation of Rs.3,64,500/­. As the Tribunal has awarded a compensation of Rs.2,85,000/­, the appellant­ original claimant would be entitled to additional compensation of Rs.79,500/­. However, such additional amount shall carry interest at the rate of 8% per annum from the date of filing of the claim petition till its realization instead of 9% interest per annum as awarded by the Tribunal. Rest of the award remains as it is. The insurance Company shall deposit the additional amount as awarded within a period of three months from the date of receipt of this judgment and order. Upon deposit of additional amount of compensation by the insurance Company, the same may be paid to the appellant ­ original claimant by account payee cheque as the accident is of the year 2002.

C/FA/2519/2019 JUDGMENT

9. The appeal is partly allowed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) MRP