Gujarat High Court
Shardaben Himatbhai Vekaria L.R. ... vs Prem Cargo Movers Pvt Ltd on 20 January, 2021
Bench: R.M.Chhaya
C/FA/2926/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2926 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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SHARDABEN HIMATBHAI VEKARIA L.R. OF HIMATBHAI M VEKARIA &
1 other(s)
Versus
PREM CARGO MOVERS PVT LTD & 3 other(s)
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 1,3
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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 07.08.2008 passed by Motor
Accident Claims Tribunal (Aux), Morbi in MACP
No. 48 of 2003, being common judgment and award,
C/FA/2926/2009 JUDGMENT
the original claimants of Claim Petition No. 48
of 2003 has filed this appeal under Section 173
of the Motor Vehicles Act, 1988 (hereinafter
referred to as the "Act").
2. The facts on record indicate that the accident
occurred on 23.01.2003 at about 3.30 PM. As the
record unfolds, the deceased Himmatbhai was
driving his Maruti Van towards Maliya National
Highway and when his vehicle reached three roads
near Maliya, tanker bearing registration No. RJ
0292 came from the other side, i.e., from Bhuj
side and dashed with the maruti van because of
the rash and negligent driving. Himmatbhai
received serious injuries and succumbed to the
same. FIR came to be lodged with the
jurisdictional police. Thereafter, the
claimants, being wife, son and daughter of
deceased Himmatbhai, filed the present claim
petition.
3. It was the case of the claimants that deceased
Himmatbhai was earning Rs. 10,000/ and claimed
total compensation of Rs.8,00,000/. It was the
case of the claimants that the deceased was
engaged in the vocation of building contractor
and was earning Rs. 10,000/. Original claimant
No.1 Shardaben was examined at exhibit 41.
However, no further evidence as regards income
was adduced by the appellant. The Tribunal
after appreciating the evidence on record, came
to the conclusion that as per the PM Note, the
C/FA/2926/2009 JUDGMENT
age of the deceased Himmatbhai was 52 years on
the date of the accident. In absence of any
evidence as regards income except oral
deposition, the Tribunal determined the income
of the deceased at Rs.3,000/ and applied
multiplier of 10 and awarded a sum of Rs.
2,40,000/ after deducting 1/3rd towards personal
expenses. Over and above the same, the
Tribunal was pleased to award additional
compensation of Rs. 20,000/ under the head of
loss of estate and Rs. 3,000/ as funeral
charges and thus, awarded total compensation of
Rs. 2,71,000/. Being aggrieved by the judgment
and award, the original claimants have preferred
this appeal.
4. Heard Mr. Mrugen Purohit, learned advocate for
the appellant, Mr. H.G. Mazmudar, learned
advocate for respondent no.2 and Ms. Karuna
Rehvar, learned advocate for respondent no.4.
Though served, no one appears for the other
respondents.
5. Mr. Mrugen Purohit, learned advocate appearing
for the appellant has raised the following
contentions
1) That the Tribunal has wrongly relied upon the
PM Note and has considered the age of the
deceased as 52 years. However, the real age
of the deceased on the date of the accident
was 47 years even as per the deposition and
C/FA/2926/2009 JUDGMENT
the school leaving certificate produced by the
appellants.
2) It was also contended that the Tribunal has
wrongly assessed the income of Rs.3,000/.
3) Mr. Purohit also contended that no prospective
income is given by the Tribunal.
4) According to Mr. Purohit, the applicable
multiplier would be 13 and not 10 as granted
by the Tribunal.
On the aforesaid grounds, it was therefore
contended by Mr. Purohit that the appeal be
allowed and the impugned judgment and award be
modified.
6. Mr. Mazmudar, learned advocate appearing for the
respondent no.2 insurance company has supported
the impugned award. Mr. Mazmudar contended that
in absence of any evidence, even remote, the
Tribunal has rightly considered the income of
the deceased at Rs.3,000/, which does not
require any modification. As far as other
grounds are concerned, Mr. Mazmudar contended
that considering the date of accident, the
appellants would not be entitled to prospective
income and the age of the deceased is rightly
considered as 52 years and therefore, the
multiplier of 10 is also properly applied by the
Tribunal. Mr. Mazmudar submitted that no
interference is called for and the appeal being
C/FA/2926/2009 JUDGMENT
meritless, deserves to be dismissed.
7. Ms. Rahevar, learned advocate appearing for the
respondent no.4 insurance company has adopted
the arguments made by Mr. Mazmudar and submitted
that the appeal be dismissed.
8. No other or further submissions have been made
by the learned advocate appearing for the
parties.
9. As far as the aspect of the income is concerned,
there is no evidence which even remotely suggest
that the income of the deceased was Rs. 10,000/
per month as averred in the claim petition. The
Tribunal therefore was left with no alternative
but to do guess work and considering the date of
accident, the Tribunal has rightly determined
the income of the deceased at Rs. 3,000/ per
month. 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, the appellant would be entitled to
prospective income to the tune of 10%. As far
as multiplier is concerned, though Mr. Purohit
has contended that in the deposition of the
claimant, the claimant has deposed that the age
of the deceased was 47 years, for which she has
produced school leaving certificate, on perusal
of the record and proceedings, we find that no
such school leaving certificate is on record. On
the contrary, the deposition of the appellants
indicate that the PM note were also produced by
C/FA/2926/2009 JUDGMENT
the appellant, which shows the age of the
deceased to be 52 years and therefore, the age
of the deceased is rightly considered as 52
years. However, as per the judgment of the Apex
Court in the case of Pranay Sethi (supra), the
appellants would be entitled to multiplier of 11
instead of 10 as awarded by the Tribunal.
Having come to the aforesaid conclusion
therefore, the appellant would be entitled to
compensation under the head of future loss of
income as under
Rs.3,000/ (income) + 300 (10% prospective
income) = Rs.3,300/ - Rs. 1100/ (1/3rd
towards personal expenses) = Rs.2,200/ X
12 X 11 (multiplier) = Rs. 2,90,400/
10. Thus, the appellants would be entitled to
Rs. 2,90,400/ towards future loss of income.
Over and above the same, the appellants would be
entitled to additional compensation of Rs.
70,000/ under different conventional heads
including funeral expenses and thus, the
appellants would be entitled to total
compensation of Rs. 3,60,400/. As the Tribunal
has awarded Rs. 2,71,000/, the appellants would
be entitled to an additional compensation of
Rs.89,400/. Rest of the award shall remains
unaltered. 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
C/FA/2926/2009 JUDGMENT
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
