Khadki Allarakha Sidikbhai vs Sabir S/O Hasam
2021 Latest Caselaw 7037 Guj

      C/FA/2451/2020                              JUDGMENT DATED: 28/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2451 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1     Whether Reporters of Local Papers may be allowed No
      to see the judgment ?

2     To be referred to the Reporter or not ?                    No

3     Whether their Lordships wish to see the fair copy No
      of the judgment ?

4     Whether this case involves a substantial question No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        KHADKI ALLARAKHA SIDIKBHAI
                                  Versus
                             SABIR S/O HASAM
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 4
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 5
MR YOGI K. GADHIA, ADVOCATE for MR KV GADHIA(319) for the
Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1,2,4.1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 28/06/2021
                              ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the judgment and award dated 02/03/2020 passed by Motor Accident Claim Tribunal (Aux.), Nadiad in Motor Accident Claim Petition No. 332 of 2018, the appellants - original

C/FA/2451/2020 JUDGMENT DATED: 28/06/2021

claimants have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

2. Heard Mr. Nishit A. Bhalodi, learned counsel for the appellants - original claimants and Mr. Yogi K. Gadhia learned counsel for respondent No.3 - New India Assurance Company Ltd. The presence of respondent Nos.1 and 2, who were driver and owner of the offending vehicle involved in the accident respectively are not necessary as respondent No. 3-Insurance Company has not denied its liability.

3. In light of the aforesaid fact and at the request of learned counsel for the appellants and learned counsel for the respondent No.3- Insurance Company, the appeal is taken up for final disposal. Learned Counsel for the parties have also provided copies of evidence adduced before learned Tribunal for perusal of this Court.

4. The following noteworthy facts emerge from the record of the appeal:

4.1 That the deceased who was son of the appellant Nos.1 and 2 on 02/11/2017 was travelling as pillion rider on Motorcycle bearing registration No. GJ.07.CH.8943 which was driven by the respondent no. 4 and when they reached near the spot of accident opponent No. 1 came driving the Truck bearing registration No. HL.01.Q.6757 in full speed and dashed with the Motorcycle No. GJ.07.CH.8943. It is submitted that due to the said accident, deceased sustained serious injuries, which resulted into the death.

4.2 It is the case of the appellants that, the deceased was 26 years old on the date of accident and was doing private job and used to earn Rs. 10,000/-

       C/FA/2451/2020                               JUDGMENT DATED: 28/06/2021



per month.


4.3     Therefore, the appellants filed Motor Accident Claim Petition before

the Tribunal under Section 166 of the Act, claiming compensation of Rs. 15,00,000/, wherein the Tribunal awarded compensation of Rs. 7,84,000/- along with costs and interest @ 9% per annum. Being dissatisfied with the said compensation, the appellants have filed present appeal for enhancement of compensation.

5. The Learned counsel for the appellants has raised the following contentions :

5.1 That the learned Tribunal has committed error in considering the income of the deceased as Rs. 5,000/- per month whereas the learned Tribunal ought to have considered that the minimum wages prevailing on the date of accident i.e. 02/11/2017 for the unskilled labourer was Rs. 7946/-, therefore, the learned Tribunal ought to have considered Rs. 7946/- per month as the income of the deceased. That the appellants have relied upon the judgment of Supreme Court in case of Govind Yadav v. New India Assurance Co. Ltd. reported in 2012 ACJ 28.

5.2 Other grounds raised by the learned counsel for the appellants are not pressed at this stage and hence not taken into consideration.

6. Per contra, Mr. Yogi K. Gadhia, learned counsel for respondent No.3

- New India Assurance Co. Ltd. has supported the impugned judgment and award. He contended that in absence of the evidence of income, the Tribunal has rightly fixed the amount of monthly income of Rs. 5,000/- per month and has not committed an error while computing the amount of

C/FA/2451/2020 JUDGMENT DATED: 28/06/2021

compensation. It is also submitted that the Tribunal has rightly calculated the compensation and he supported the impugned Judgment and argued that the award is just and proper.

7. This Court is of the view that the Tribunal has observed that the deceased was doing private job, hence, looking to the nature of work undertaken by the deceased, it was difficult to get documentary evidence to prove the income. This Court is of the considered opinion that in absence of any documentary proof of income, the learned Tribunal ought to have considered minimum wages as statutorily prescribed under the Minimum Wages Act, as prevailing on the date of the accident as the income of the deceased.

8. In view of the above, this Court is of the view that income of the deceased should be considered at Rs. 7,500/- per month and accordingly, the same is fixed for the purpose of computing the amount of loss of dependency.

9. On the basis of the above finding, the appellants-claimants would be entitled to compensation under the head of loss of dependency as under :

Compensation As per Award under Calculation in Challenge First Appeal (A) Future Loss

(i) Actual Income 5000/- 7500/-

 (ii)        Prospective Income              7000/- (40%)              10500/- (40%)
 (iii)       Deduction of amount             3500/- (½)                5250/- (½)
             spent by the deceased on
             himself





        C/FA/2451/2020                                  JUDGMENT DATED: 28/06/2021



 (iv)       Future Loss Per Annum           3500/- x 12 =               5250/- x 12 =
                                            42000/-                     63,000/-

 (A)        Future Loss                     7,14,000/-                  10,71,000/-
 (B)        Conventional Amount             70,000/-                    70,000/-
            Total Compensation              7,84,000/-                  11,41,000/-

Thus, the appellants would be entitled to get compensation of Rs.11,41,000/-.

10. As the Tribunal has already awarded compensation of Rs. 7,84,000/-, the appellants would be entitled to get additional compensation of Rs. 3,57,000/- (Rs. 11,41,000/- minus Rs. 7,84,000/-). The claimants- appellants are entitled for additional compensation of Rs. 3,57,000/- with interest at the rate of 7.5% p.a. on enhanced amount as consented by the learned advocate for the appellants from the date of filing of claim petition till its realization.

11. The Respondent No.3 - Insurance Company shall deposit the said additional amount of Rs. 3,57,000/- with interest at the rate of 7.5% p.a. from the date of filing of claim petition till its realization before the Tribunal within a period of 60 days from the date of receipt of order.

12. Accordingly, present appeal is partly allowed. The impugned judgment and award stands modified to the aforesaid extent. Record and proceedings be remitted back to the concerned Tribunal forthwith if received by this court. No order as to costs.

(NIKHIL S. KARIEL,J) BDSONGARA