Gujarat High Court
Legal Heirs And Rep. Of Decd. ... vs Owner-Mahindra Jeep ... on 19 January, 2021
Bench: R.M.Chhaya
C/FA/4887/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4887 of 2008
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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LEGAL HEIRS AND REP. OF DECD. MAHESH MANJIBHAI KASUNDRA
Versus
OWNER-MAHINDRA JEEP NO.GJ-10-F2079-RANJITSINH SHIVUBHA
SODHA & 1 other(s)
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Appearance:
MR HARSHAD K PATEL(2844) for the Appellant(s) No. 1,1.1,1.2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 19/01/2021
ORAL JUDGMENT
1. Feeling aggrieved by and dissatisfied by the
judgment and award dated 18.10.2007 passed by
the Motor Accident Claims Tribunal (Aux.),
Morbi in MACP No.162 of 2002, the appellants
original claimants have preferred this appeal
for enhancement of the compensation under
C/FA/4887/2008 JUDGMENT
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 accident occurred on 28.5.2002 on
AmaranJivapar Road, Taluka Jodiya, District
Jamnagar, near Jivapar Village. It is the case
of the appellants that on the said date at
about 03:30 p.m., while the son of the
appellants - Mahesh was driving his Hero Honda
Motorcycle bearing registration no. GJ3 MN
4915, a jeep bearing registration no. GJ10 F
2079 came from the wrong side being driven in
a rash and negligent manner and dashed with
the motorcycle being driven by the deceased
Mahesh. It is the case of the original
claimants that the deceased Mahesh sustained
serious injuries and ultimately succumbed to
the same. An FIR was lodged with the
jurisdictional Police Station and the original
claimants being mother and father of the
deceased filed the present claim petition
under Section 166 of the Act and claimed
compensation of Rs.8,00,000/.
3. The appellants gave oral deposition at Exh.32.
The appellants original claimants relied
upon the documentary evidence, such as, FIR at
C/FA/4887/2008 JUDGMENT
Exh.33, Panchnama of the scene of the accident
at Exh.34, inquest Panchnama at Exh.37,
postmortem report at Exh.38, chargesheet
challan Exh.39. It was the case of the
appellants original claimants that the
deceased was just 19 years old and had a very
bright future. Considering the evidence on
record, the Tribunal gave lumpsum compensation
of Rs.1,80,000/ with interest at the rate of
7.5% per annum and being aggrieved by the
same, the appellants original claimants have
preferred this appeal and claimed additional
compensation of Rs.1,00,000/.
4. Heard Mr. Harshad K. Patel, learned advocate
for the appellants and Mr. Sunil Parikh,
learned advocate for respondent no.2insurance
Company. Though served, no one appears for the
respondent no.1.
5. Mr. Harshad K. Patel, learned advocate for the
appellants has submitted that the deceased was
19 years old and had a very bright future. Mr.
Patel contended that the Tribunal has
committed an error in straightway awarding
lumpsum compensation of Rs.1,80,000/. Mr.
Patel further contended that even if the
minimum wages standard is applied, as in the
year 2002 even as an unskilled labourer, the
deceased would have earned at least Rs.2,200/
C/FA/4887/2008 JUDGMENT
per month. Mr. Patel further relying upon the
judgment of the Hon'ble Apex Court in the case
of National Insurance Company Limited Vs.
Pranay Sethi & Ors. reported in (2017) 16 SCC
680, contended that over and above the same,
the appellants would be entitled to increase
in income by way of prospective income. Mr.
Patel contended that as the age of the
deceased was just 19 years old, the appellants
would be entitled to multiplier of 18. Mr.
Patel also contended that over and above the
same, the original claimants would be entitled
to compensation under the conventional heads,
which has not at all been considered by the
Tribunal while granting lumpsum compensation.
Mr. Patel contended that thus, the appeal may
be allowed and the award may be modified as
prayed for.
6. Per contra, Mr. Sunil B. Parikh has supported
the impugned award. Mr. Parikh submitted that
in absence of any evidence, the Tribunal has
committed no error in awarding lumpsum
compensation. Mr. Parikh also contended that
the appellants have not even brought on record
any evidence on record as regards the
educational qualification as well as the
income of the deceased and in absence of the
same, the Tribunal has committed no error in
awarding just compensation of Rs.1,80,000/ as
C/FA/4887/2008 JUDGMENT
a lumpsum compensation. It was therefore
contended that the appeal, being meritless,
deserves to be dismissed.
7. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
8. I have perused the original record and
proceedings and have also considered the
submissions made. It is no doubt true that the
appellants have not been able to adduce any
evidence as far as the income of the deceased
is concerned. In such a scenario, in opinion
of this Court, the Tribunal ought to have
adopted a guesswork method. Even considering
the minimum wages standard, as prevailing on
the date of the accident, the deceased aged 19
years would have been earning at least
Rs.2,200/ per month. Having come to the
conclusion following the ratio laid down by
the Hon'ble Apex Court in the case of Pranay
Sethi (supra), the appellants original
claimants would be entitled to prospective
income to the tune of 40%. As the deceased was
unmarried, 50% of the same is required to be
deducted towards personal expenses. Hence, the
appellants original claimants would be
entitled to compensation for future loss as
C/FA/4887/2008 JUDGMENT
under:
Rs.2,200/ per month + 40% prospective income=
Rs.3,080/ rounded to Rs.3,000/ less 50%
towards personal expenses = Rs.1,500/ per
month and Rs.18,000/ per year.
9. Following the ratio laid down by the Hon'ble
Apex Court in the case of Pranay Sethi (supra)
as well as Sarla Verma Vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121,
considering the age of the deceased,
appropriate multiplier would be 18. Over and
above the same, the appellants would also be
entitled to further compensation of
Rs.30,000/ by way of compensation under the
conventional head of loss of estate and
funeral charges. The Tribunal has granted
lumpsum compensation of Rs.1,80,000/ which is
exfacie erroneous. However, as the appeal is
only limited to Rs.1,00,000/, in such facts
and circumstances, following the ratio laid
down by the Hon'ble Apex Court in the case of
Pranay Sethi (supra), the appeal is allowed
and the impugned judgment and award is
modified as under:
10. The appellants would be entitled to total
compensation of Rs.2,80,000/. As the Tribunal
has awarded Rs.1,80,000/, the appellants
C/FA/4887/2008 JUDGMENT
would be entitled to an additional amount of
Rs.1,00,000/ with interest at the rate of
7.5% per annum from the date of the claim
petition till its realization. The impugned
judgment and award stands modified
accordingly. 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.
However, there shall be no order as to costs.
Registry is directed to send the original
record and proceedings back to the Tribunal
forthwith.
(R.M.CHHAYA, J)
MRP
