Bhanuben Chandubhai Prajapati vs Faridbhai Mohammadbhai Bhatti
2021 Latest Caselaw 953 Guj

           C/FA/1081/2007                                       JUDGMENT



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 1081 of 2007

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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               BHANUBEN CHANDUBHAI PRAJAPATI & 4 other(s)
                               Versus
               FARIDBHAI MOHAMMADBHAI BHATTI & 6 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
MR AJAY R MEHTA(453) for the Defendant(s) No. 3
MR KK NAIR(499) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 7
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 6
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 21/01/2021
                        ORAL JUDGMENT

1.0. Being aggrieved and dissatisfied with the impugned judgment and award dated 27.12.2002 passed by the Motor Accident Claims Tribunal (Main), Vadodara in MACP No.879 of 1992, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988.

2.0. The record of the appeal shows that accident occurred on

C/FA/1081/2007 JUDGMENT

22.04.1992 at about 6.30 hours. It is the case of the claimants that while deceased Chandubhai was going on scooter bearing registration no. GJ­6E­1153 along with the pillion rider Kantibhai from Baroda to Padara, the accident occurred. As per the record while attempting to overtake, Truck bearing registration no. GJ­ 3T­721 and Tanker bearing registration no. GTK­5892, dashed with each other and because of such impact Tanker bearing no. GTK 5180 went on wrong side ran over the deceased scooterist and deceased succumbed to the injuries. FIR came to be lodged with the jurisdictional police station. Present claim petition was preferred by the appellants for compensation of Rs.10 lakh.

2.1. It was the case of the appellants before the Tribunal that deceased Chandubhai was 42 years old and was serving as supervisor in private pharmaceutical company at Baroda. It is the case of the appellants­ claimants that the salary of the deceased on the date of accident was 2440/­ per month and in addition to that deceased had income by way of bonus, provident fund etc. and it was the case of the appellants­ claimants that income of the deceased was Rs.5000/­. The Tribunal considered the oral as well as documentary evidence produced before it by the appellants and also took into consideration the oral deposition of the injured eyewitness Kantibhai at Exh.32 and while partly allowing the claim petition, considered the income of the deceased considering prospects of the deceased, determined the income of deceased at Rs.3500/­ per month mainly relying upon the salary certificate at Exh.37. The Tribunal was also pleased to deduct 1/3rd towards personal expenses and awarded a sum of Rs.4,49,900/­ as total

C/FA/1081/2007 JUDGMENT

compensation. Being aggrieved and dissatisfied with the same, present appeal is preferred.

3.0. Heard Mr. MTM Hakim, learned advocate for the appellants, Mr. Vibhuti Nanavati, learned advocate for the respondent nos. 4 & 7, Mr. Ajay Mehta, learned advocate for the respondent no.3 and Mr. Alkesh Shah, learned advocate for the respondent no.6. Though served, nobody appears on behalf of the other respondents.

4.0. Mr. Hakim, learned advocate for the appellants has raised following contentions:

4.1. That relying upon the judgment of 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. Hakim that the appellants would be entitled to prospective income to the tune of 30% . Mr Hakim further contended that the Tribunal has committed error in deducting 1/3rd towards personal expenses. According to Mr. Hakim, deceased had five dependents and therefore, 1/4th of total income would be required to be deducted towards personal expenses. Mr. Hakim also contended that the as per the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the appellants would be entitled to additional compensation of Rs.70,000/­ under the different conventional heads including funeral expenses. Mr. Hakim also contended that a specific contention was taken before the Tribunal and accordingly loss of gratuity to the tune of Rs.52,500/­ was already granted by the Tribunal. According to Mr. Hakim, impugned judgment and award therefore, deserves to be modified

C/FA/1081/2007 JUDGMENT

by allowing the appeal.

5.0. Per contra, Mr. Vibhuti Nanavati, learned advocate has supported the impugned judgment and award. Mr. Nanavati contended that the Tribunal has relied upon the Division Bench judgment of this Court and has rightly and properly appreciated the evidence on record and therefore, no modification is required in this appeal.

6.0. Mr. Shah, learned advocate for the respondent no.6 has submitted that this Court may pass appropriate order.

7.0. No other and further submissions, grounds and contentions have been raised by the learned advocates for the respective parties.

8.0. I have perused the original record and proceedings of the case. Upon considering the submissions made and grounds raised by Mr. Hakim, learned advocate for the appellants, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra). The record indicates that the deceased was serving in pharmaceutical company at Baroda and had a permanent job. Hence, following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) as per the age of the deceased, the appellants would be entitled to prospective income to the tune of 30%. The record also indicates that the deceased had five dependents and therefore, deduction towards personal expenses would be 1/4th instead of 1/3rd. As per the judgment of the Hon'ble Supreme Court in the case of Pranay

C/FA/1081/2007 JUDGMENT

Sethi (supra), the appellants would also be entitled to additional amount of Rs.70,000/­ towards different conventional heads including funeral expenses. Having come to the aforesaid conclusion, the appellants would be entitled compensation as under:

Compensation                                Amount (Rs.)
Loss of dependency                          3,99,672/­
Conventional heads                          70,000/­
Loss of Gratuity                            52,500/­
Total compensation                          5,22,172/­

The appellants would be entitled to total compensation of Rs.5,22,172/­. As the Tribunal has awarded Rs.4,49,900/, the appellants would be entitled to an additional amount of Rs.72,272/with interest at the rate of 9% 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) KAUSHIK J. RATHOD