Gujarat High Court
Gokal Bhanabhai Rabari vs Rava Avchar Dubariya on 19 January, 2021
Bench: R.M.Chhaya
C/FA/403/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 403 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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GOKAL BHANABHAI RABARI & 1 other(s)
Versus
RAVA AVCHAR DUBARIYA & 2 other(s)
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Appearance:
MR HARSHAD K PATEL(2844) for the Appellant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 19/01/2021
ORAL JUDGMENT
1.0. Feeling aggrieved and dissatisfied with the judgment and
award dated 17.11.2008 passed by the Motor Accident Claims
Tribunal (Auxi), Gandhidham, Kutch in MACP No. 1945 of 1999,
the appellants original claimants have preferred present appeal
under Section 173 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the "Act" for sake of brevity).
2.0. The following facts emerge from the record the appeal.
That the accident took place on 27.10.1999. As per the record
C/FA/403/2009 JUDGMENT
while deceased along with other ladies was standing on the road,
the Tractor bearing registration no. GJ12J8124 came from the
other side being driven in rash and negligent manner and went
over the deceased.Because of the impact of the accident, deceased
sustained serious injuries and ultimately succumbed to the same.
An FIR came to be lodged with the jurisdictional police station and
the appellants - claimants filed the present claim petition under
Section 166 of the Act and claimed compensation of Rs.6 lakh. At
this stage, it may be noted that the appellants - claimants also filed
an application below Exh.6 under Section163 A of the Act, which
was allowed and Tribunal granted compensation of Rs.1,89,500/
with interest at the rate of 12% pa. The said order came to be
challenged before this Court by filing First Appeal No.1945 of
1999, which was allowed by this Court and order was quashed and
set aside and thereafter claim petition was proceeded further in
accordance with law.
2.1. The appellant no.1 was examined at Exh.35 and the
claimant also relied upon the documentary evidence such as FIR at
Exh.41, Panchnama of scene of offence at Exh.42, PM report at
Exh.43, Chargsheet at Exh.44, Inquest Panchnama at Exh.45,
Insurance Policy at mark 33/4 and driving license at mark 33/7. It
was the case of the appellants that the deceased was 22 years old
and she was working as labourer and was earning Rs.3000/ per
month. Appellants also relied upon the affidavit of one Naranbhai
Panchal at Exh.38 to prove that the deceased was working in Sama
Salt Works. The Tribunal disbelieved such evidence, considered
notional income of the deceased at Rs.15,000/ p.a. and also gave
C/FA/403/2009 JUDGMENT
effect of prospective income and considered the income of the
deceased at Rs.22,500/ and after deducting 1/3 towards her
personal expenses and applying multiplier of 15, awarded a sum of
Rs.2,25,000/ as compensation under the head of loss of
dependency and in addition to that awarded a sum of Rs.20,000/
towards conventional amount and thus awarded total
compensation of Rs.2,45,000/ with 7.5% interest from the date of
claim petition till its realization. Being aggrieved and dissatisfied
with the same, present appeal is preferred by the original
claimants.
3. Heard Mr. H.K. Patel, learned advocate for the appellants and
Mr. Vibhuti Nanavati, learned advocate for the respondent
Insurance Company. Though served, nobody appears on behalf of
the other respondents. I have also perused the original record and
proceedings of the case.
4. Mr. Patel, learned advocate for the appellants contended that
the Tribunal has committed error in considering the notional
income of the deceased at Rs.15000/. Relying upon the ratio laid
down by the Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Sethi & Ors. reported in
(2017) 16 SCC 680, it was contended by Mr. Patel that the Tribunal
has wrongly calculated the prospective income as notional amount,
which should be enhanced. On the aforesaid ground, it was
contended by Mr. Patel, learned advocate for the appellants that the
impugned judgment and award be modified and appeal be allowed
accordingly.
C/FA/403/2009 JUDGMENT
5. Per contra, Mr. Nanavati, learned advocate for the respondent
Insurance Company has opposed the appeal. Mr. Nanavati contended
that the Tribunal has committed no error in disbelieving the evidence
of Naranbhai Panchal at Exh.38 and except bare words there was
nothing on record to show that the deceased was working in said
salt works and that the appellants have adduced no evidence even
remotely proving that the deceased was a working woman. Mr.
Nanavati further contended that the Tribunal has awarded
appropriate prospective income and Rs.20000/ as conventional
amount, which does not require any modification. Mr. Nanavati
further contended that the Tribunal has awarded just
compensation, which does not require to be modified or enhanced
by this Court in exercise of its appellate jurisdiction. Mr. Nanavati
contended that the appeal being merit less and deserves to be
dismissed.
6. No other and further contention, submissions and grounds have
been raised by the learned advocates for the respective parties.
7. On reappreciation of evidence on record, the Tribunal has
rightly disbelieved the oral deposition of Naranbhai Panchal at
Exh.38. There is nothing on record that the deceased was working
as a labourer in the said salt works and Tribunal has therefore,
committed no error in not relying upon such piece of evidence for
determining the income of the deceased. Upon reappreciation of
the evidence on record, therefore, the Tribunal has correctly
determined the income of the deceased at Rs.15000/ p.a. and
same does not require any alteration. However following the ratio
C/FA/403/2009 JUDGMENT
laid down by the Hon'ble Supreme Court in the case of Pranay
Shethi (supra), the appellants would be entitled to prospective
income to the tune of 40% and after deducting 1/3 towards
personal expenses, the appropriate multiplier would be 18. Over
and above the same, the appellants would be entitled to additional
compensation of Rs.70,000/ towards other conventional heads
including funeral expenses. Having come to the aforesaid conclusion,
the appellants would be entitled to compensation as under:
"Rs.15000/ p.a + Rs.6000 (40% prospective income) = Rs.21000/
minus Rs. 7000/ (1/3rd towards personal expenses) = Rs.14,000/ x
18 (multiplier)= Rs. 2,52,000/ and Rs.70,000/ towards different
conventional heads including funeral expenses. "
The appellants would be entitled to total compensation of
Rs..3,22,000/. As the Tribunal has awarded Rs.2,45,000//, the
appellants would be entitled to an additional amount of Rs.77,000/.
Insurance Company shall deposit the additional amount with 7.5%
interest from the date of Claim Petition till its realization.
Accordingly, the appeal is allowed to the aforesaid extent. The
impugned judgment and order is modified to the aforesaid extent.
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.
sd/
(R.M.CHHAYA, J)
KAUSHIK J. RATHOD
