Gujarat High Court
Kaminiben Ajaykumar Solanki vs Mayurkumar Shakranand Datta on 5 March, 2021
Bench: Vaibhavi D. Nanavati
C/FA/2454/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2454 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
=========== ==== == == == == == === == == == == == == == == == == == = == ==
===
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 ?
=========== ==== == == == == == === == == == == == == == == == == == = == ==
===
KAMINIBEN AJAYKUMAR SOLANKI & 5 other(s)
Versus
MAYURKUMAR SHAKRANAND DATTA & 2 other(s)
=========== ==== == == == == == === == == == == == == == == == == == = == ==
===
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5,6
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1,2
=========== ==== == == == == == === == == == == == == == == == == == = == ==
===
CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/03/2021
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied with the
judgment and award dated 20.04.2017 passed by
C/FA/2454/2020 JUDGMENT
Motor Accident Claims Tribunal (Aux.) Sabarkantha
at Idar, in Motor Accident Claim Petition No. 154
of 2017, the appellants - original claimants
preferred present appeal under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to
as "the Act" for short);
2. Heard Mr.Hiren Modi, learned advocate for the
appellants - original claimants and Mr. Maulik J
Shelat, learned counsel for the respondent No.3 -
National Insurance Company Ltd. Though served, no
one appears for other respondents No.1 and 2 who
are driver and owner of the Motorcycle involved
in the accident respectively. Tespondent No.3 has
not denied its liability.
3. In light of the aforesaid fact and at the
request of learned advocates for the appellants
and the Insurance Company, the appeal is taken up
for final disposal. Learned advocates for the
parties have also provided copies of evidence
adduced before learned Tribunal for perusal of
this Court.
C/FA/2454/2020 JUDGMENT
4. The following noteworthy facts emerge from the
record of the appeal :
4.1 That on 16.10.2017, the husband of the
appellant No.1, namely Ajaykumar Mukeshbhai
Solanki was coming towards the Idar from Vadali
on Motorcycle No.GJ09CQ1698 as pillion rider,
which was driven by the respondent no.1 in rash
and negligent manner. It is submitted that when
they reached near Gambhirpura Village at that
time the respondent No.1 due to excessive speed
dashed with one person and then lost control over
the motorcycle and met with an accident. It is
submitted that due to accident pillion rider
Ajaykumar fallen down on road, sustained serious
injuries, which resulted into death of deceased.
4.2 It is the case of the appellants that, the
deceased was 23 years old on the date of accident
and was serving as Sweeper in Jan Seva Kendra and
also driving Rickshaw and earning Rs. 20,000/
p.m.
C/FA/2454/2020 JUDGMENT
4.3 The appellants filed Motor Accident Claim
Petition before the Tribunal under Section 166 of
the Act, claiming compensation of Rs.
25,00,000/, wherein the Tribunal awarded
compensation of Rs.10,63,500/ along with costs
and interest @ 8.75% per annum. Being
dissatisfied with the said compensation, the
appellants have filed present appeal for
enhancement of compensation.
5. Learned advocate for the appellants has raised
the following contentions :
(i) That the Tribunal has committed an error
while considering the income of the deceased at
Rs. 4,500/p.m. as the deceased was serving as
Sweeper in Jan Seva Kendra and also driving
rickshaw and earning Rs.20,000/ p.m;
(ii) That the Tribunal has committed an error
while considering the future prospective income
of the deceased. The Tribunal has considered 25%
prospective income of the deceased instead of 50%
C/FA/2454/2020 JUDGMENT
looking to the age of the deceased on the date of
accident;
(iii) That the Tribunal has awarded meager amount
of Rs. 70,000/ under the different conventional
heads;
(iv) That the Tribunal failed to consider the
directions delivered by the Hon'ble Supreme Court
in the case of National Insurance Company Ltd.
Vs. Pranay Sethi, reported in 2017 (16) SCC 680,
while fixing the amount of dependency loss, which
shows that the award is contrary to law and facts
and therefore, the same is required to be
enhanced. On the aforesaid contentions, learned
advocate for the appellants has submitted that
present appeal be allowed.
6. Per contra, Mr. Maulik J Shelat, learned
advocate for respondent No.3 - National Insurance
Co. Ltd. has supported the impugned judgment and
award. He contended that in absence of the
evidence of income, the Tribunal has rightly
C/FA/2454/2020 JUDGMENT
fixed the amount of monthly income of Rs.4,500/
p.m and has not committed any error while
computing the amount of compensation. It is also
submitted that the Tribunal has deducted 1/5
towards the personal expenses though there are
six claimants and as per the decision of the
Pranay Shetty the Tribunal ought to have deducted
1/4 of amount towards the personal expenses.
Therefore, the award is just and proper.
7. Having heard learned advocates for the
parties, on perusal of the impugned judgment and
award and also considering the evidence on
record, it appears that the Tribunal has
calculated the loss of dependency on the basis of
monthly income of Rs.4,500/. It further appears
that the Tribunal has considered future
prospective income of the deceased at 25% despite
the fact that deceased was only 23 years old. In
view of this Court, the Tribunal has observed
that the deceased was doing work of sweeper at
Dr. Chhaganbhai and used to earn Rs. 7,000/ and
C/FA/2454/2020 JUDGMENT
certificate produced at Exhibit42 but no oral
evidence was examined. Hence, looking to the
nature of work undertaken by the deceased, the
Tribunal has failed to consider the income/wage
of skilled labour as well as the Price Index of
the relevant years.
8. In view of the above, I am of the view that
income of the deceased be considered Rs.6,500/
p.m and fix the same for the purpose of computing
the amount of loss of dependency. Further, it is
required to be noted that while fixing the amount
of loss of dependency, future prospective income
of the deceased be considered 40% instead of 25%.
9. Towards personal expenses 1/4 of the amount
be deducted instead of 1/5 considering the fact
that there are six claimants, as per the ratio
laid down in case of Pranay Shetty (Supra).
10. For the foregoing reasons, the appellants
claimants would be entitled to compensation under
the head of loss of dependency is as under:
C/FA/2454/2020 JUDGMENT
Compensation As per Award Calculation
under in First
challenge Appeal
(A) Future Loss
(i) Actual Income 4500 6500
(ii) Prospective Income 4500 (50%) 9100 (40%)
(iii) Deduction of amount 900(1/5) 2275(1/4)
spent by the decd. on
himself
(iv) Future Loss Per Annum 4500 x 12 = 6825 x 12 =
54000 81900
(A) Future Loss 5,02,200 5,02,200
(B) Conventional Amount 70,000 70,000
Total Compensation 10,63,500 15,65,700
Interest 7% 7%
11. As far as compensation under the
conventional heads is concerned, following
the ratio laid down by the Apex Court in the
case of National Insurance Company Ltd.
(supra), the appellants would be entitled to
Rs.70,000/ under the conventional heads. The
claimant have incurred medical expenses of
Rs.21,500/ which is already awarded. Thus,
C/FA/2454/2020 JUDGMENT
the appellants would be entitled to get
compensation of Rs.15,65,700/.
12. Total amount of the award comes to
Rs.15,65,700/. The learned Tribunal has
passed the award of Rs.10,63,500/. The
present respondents are therefore entitled to
Rs.5,02,200/ to be rounded of @
Rs.5,00,000/ as enhanced amount of
compensation along with 7% from the date of
application filed before the Tribunal on the
enhanced amount of compensation. The National
Insurance Company - respondent No.3 is
directed to deposit the amount of
compensation alongwith interest before the
Tribunal within a period of three weeks from
the date of receipt of copy of this judgment.
13. In the result, the appeal is partly
allowed. Consequently the civil application
is disposed of.
14. In view of above, judgment and award
C/FA/2454/2020 JUDGMENT
dated dated 20.04.2017 passed by Motor
Accident Claims Tribunal (Aux.) Sabarkantha
at Idar, in Motor Accident Claim Petition No.
154 of 2017 is modified to the aforesaid
extent. After the amount of compensation
alongwith interest is deposited the Tribunal
is directed to disburse the amount in favour
of the original claimants after proper
verification within a period of eight weeks.
15. Record and Proceedings, if any, be sent
back to the trial Court concerned, forthwith.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
