Jayaben Prafulbhai Chavda L.R.Of ... vs Ashokbhai Nagdanbhai Rathod
2021 Latest Caselaw 794 Guj

         C/FA/4443/2009                                     JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.         4443 of 2009

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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JAYABEN PRAFULBHAI CHAVDA L.R.OF PRAFULBHAI R CHAVDA & 3
                        other(s)
                         Versus
        ASHOKBHAI NAGDANBHAI RATHOD & 1 other(s)
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1,2,3,4
MS KARUNA V RAHEVAR(3818) 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 : 20/01/2021

                             ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 20.12.2008 passed by the Motor Accident Claims Tribunal (Aux) , Rajkot, in MACP No. 1122/07, the original claimants have preferred this appeal under section 173 of the

C/FA/4443/2009 JUDGMENT

Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 That the accident occurred on 07.06.2007. It is the case of the claimants that the deceased Prafulbhai was standing on the side of the road and at that time, rickshaw bearing registration No. GJ­11W­3723 being driven in rash and negligent manner, dashed with the deceased Prafulbhai because of which, deceased Prafulbhai received fatal injuries and succumbed to the same. As per the record, the deceased was 36 years old and according to the claimants, the deceased was earning Rs. 20,000/­ p.m. by way of doing agricultural and cycle repairing work. The claim petition was filed by the appellants under section 166 of the Act and the appellants claimed total compensation of Rs.20,00,000/­.

2.2 One of the claimant Raimalbhai was examined at Exhibit 19. The claimants also relied upon documentary evidence such as FIR registered at Kotdasangani Police Station being C.R. No. I­ 56/07 and other documents such as copy of the FIR at exhibit 29, arrest panchnama at exhibit 30, copy of the scene of offence at exhibit 31, copy of the medical papers at exhibit 35 and 36, P.M. report at exhibit 37. The

C/FA/4443/2009 JUDGMENT

claimants also adduced documentary evidence in form of village form no. 7 and 12 at exhibit 39, bills of selling at exhibit 76, bills of medicines and treatment at exhibit 40 to 68 in particular. The Tribunal after considering the evidence on record and more particularly cross­examination of the one of the appellant, determined the income of the deceased Prafulbhai at Rs.2,500/­ p.m. and after deducting 1/3rd towards personal expenses and giving benefit of prospective income to the tune of 50%, awarded a sum of Rs. 4,50,000/­ as compensation under the head of loss of dependency by applying the multiplier of 15. The Tribunal was also pleased to award Rs.20,000/­ as compensation under the head of pain, shock and suffering and loss of estate and Rs.5,000/­ towards funeral expenses. Considering the documentary evidence about the treatment taken by the deceased, the Tribunal awarded a sum of Rs.35,000/­ as medical expenses and thus, awarded a total amount of Rs.5,07,500/­ with 9% interest from the date of filing of the claim petition till its realisation and being aggrieved by the sa,e the present appeal is filed.

3. Heard Mr. Jenil Shah, learned advocate for the appellants and Ms. Karuna Rehvar, learned advocate for respondent insurance company. Though served, no one appears for the respondent no.1.

        C/FA/4443/2009                                                   JUDGMENT




4. I     have       also       perused        the         original        record         and
  proceedings.

5. Mr.      Shah,         learned        advocate           appearing           for      the

appellants has contended that the Tribunal has committed an error in appreciating the evidence on record and has wrongly determined the income of the deceased at Rs.2,500/­ p.m. Mr. Shah contended that though no evidence was adduced as regards actual income of the deceased, the appellants had adduced evidence on record to prove the agricultural income. On the aforesaid ground, Mr. Shah contended that the income of the deceased be considered as prayed for in the claim petition. Mr. Shah also contended that the award deserves to be modified by following the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680. On the aforesaid grounds, it was contended by Mr. Shah that the appeal be allowed by modifying the award.

6. Per contra Ms. Rehvar has opposed the appeal. Ms. Rehvar contended that considering the year of accident being 2007, in absence of any evidence, the Tribunal has rightly determined the income of the deceased at Rs.2,500/­ p.m. In absence of any remote evidence, the Tribunal has committed no error in coming to such conclusion. According to Ms. Rehvar, the appeal being meritless, deserves to be dismissed.

C/FA/4443/2009 JUDGMENT

7. No other or further submissions have been made by the learned advocates appearing for the parties.

8. Having considered the submissions made and on perusal of the original record and proceedings, it clearly transpires that the deceased was 36 years old on the date of the accident. Considering the oral testimony, which has been also been cross­examined by the insurance company at exhibit 19, though there is no clearcut evidence on record, the fact remains that the appellants have been able to bring home the point that deceased Prafulbhai was doing cycle repair work and was earning Rs. 5,000/­ p.m. The said fact is not in any manner controverted by the insurance company. Considering such evidence in a claim petition, the same has to be made basis of determining the income even if there is little guess work while doing the same. Though the agricultural land is in the individual name, the same does not inspire any confidence that the appellants has been able to prove in toto the income of the deceased to the tune of Rs.20,000/­ p.m. Upon re­appreciation of the evidence as a whole and even applying the principle of guesswork, considering the age of the deceased and the year of the accident, in peculiar facts and circumstances of this case and more particularly considering the fact that the deceased was doing cycle repairing work, that too in a village

C/FA/4443/2009 JUDGMENT

where cycle is still an important mode of transportation, income of the deceased can safely be determined at Rs.6,000/­ per month. Having come to the aforesaid conclusion therefore, the appellants would be entitled to compensation under the head of loss of dependency as under ­

Rs.6,000/­ (income) + Rs.2,400/­ (40% prospective income as per the ratio laid down in the case of Pranay Sethi)­ =Rs.8,400/­ ­ Rs.2,100/­ (1/4 th towards personal expenses as deceased had 4 dependents) = Rs.6,300/­ X 12 = Rs.75,600/­

The Tribunal has rightly applied the multiplier of 15 and thus, the appellant would be entitled to a sum of Rs.11,34,000/­ as compensation under the head of loss of dependency. Over and above the same, the appellants would be entitled to additional compensation of Rs.70,000/­ under different conventional heads. The Tribunal has awarded Rs.35,000/­ towards medical expenses, which does not require any modification.

9. Thus      the      appellant        would        be      entitled             to
  compensation as under ­

          Loss of dependency ­                   Rs.11,34,000/­
          Conventional head ­                    Rs.   70,000/­
          Medical expenses ­                     Rs.    35,000/­
                                                 ­­­­­­­­­­­­­­­
          Total compensation ­                   Rs.12,39,000/­
                                                 ===============







           C/FA/4443/2009                                            JUDGMENT

10. Thus, the appellants would be entitled to total compensation of Rs.12,39,000/­. As the Tribunal has awarded Rs. 5,07,500/­, the appellants would be entitled to additional compensation of Rs.7,31,500/­. Considering the fact that the accident is of the year 2007, the appellants would be entitled to interest at the rate of 6% instead of 9% on the additional amount of Rs.7,31,500/­ awarded by this Court from the date of filing of the claim petition till its realisation. The appeal is thus partly allowed. The impugned judgment and award stands modified to the aforesaid extent. The insurance company is directed to deposit the additional amount along with proportionate interest as awarded by this Court with the Tribunal within a period of three months from the date of the receipt of this judgment and order. Record and proceedings be transmitted back to the Tribunal forthwith.

(R.M.CHHAYA, J) BIJOY B. PILLAI