Labhuben Wd/O Manjibhai Kamabhai ... vs Vishunubhai Dahyabhai Raval
2021 Latest Caselaw 4305 Guj

           C/FA/138/2021                                         ORDER




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 138 of 2021

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      LABHUBEN WD/O MANJIBHAI KAMABHAI CHUNARA
                             Versus
               VISHUNUBHAI DAHYABHAI RAVAL
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 17/03/2021

                               ORAL ORDER

1. Feeling aggrieved by and dissatisfied with the judgment and award dated 22.07.2019 passed by the learned Motor Accident Claims Tribunal, Nadiad, in MACP No.616 of 2017, the appellants - original claimants have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1999 for enhancement of the compensation.

2. With the consent of both the learned Advocates for the parties, present appeal is taken up for final disposal.

3. Heard learned Advocate Shri Nishit Bhalodi for the appellant and learned Advocate Shri Rathin P. Raval for the respondent No.3 - Insurance Company. The respondent Nos.1 and 2, who are driver and owner of the vehicle motorcycle involved in the accident and their presence is not necessary as the respondent No.3 has not denied its liability.

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4. The brief facts to file present appeal are as under:

4.1 On 07.05.2017, the deceased husband of appellant No.1 and father of appellant No.2 was coming home in Auto Rickshaw No.GJ-7YY-5803, which was driven by opponent No.1 in rash and negligence manner and when they reached in the outskirts of village Ratanpur, on the road towards Kheda, the opponent No.1 had suddenly applied the brake and on account of the same, the deceased fell down on the road. The deceased therefore, sustained grievous and serious injury on his head and ultimately, he succumbed to the injuries.

4.2 The deceased was 42 years old on the date of accident and he was doing labour work and his earning was Rs.9000/- per month. The appellants therefore filed MACP under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.10,00,000/-. The learned Tribunal clearly observed sole negligence of the driver of the vehicle Auto Rickshaw, which was driven by the opponent No.1 at the time of accident and the opponent No.2 is a owner of the said vehicle. It is further observed by the learned Tribunal that there is no dispute at bar that said vehicle was insured by the opponent No.3 at the time of accident. The learned Tribunal after considering the record and various decisions of the Supreme Court, awarded compensation of Rs.8,10,000/- along with costs and interest @ 9% p.a. The appellants file present appeal on the ground of income of the deceased as Rs.5,000/- per month instead of Rs.9,000/- per month relying upon the schedule of minimum wages in absence of income proof.

5. Learned Advocate Shri Nishit A. Bhalodi for the appellants submits that the learned Tribunal has considered the income of the deceased as Rs.5,000/- per month, which is not just and proper and that the learned Tribunal ought to have considered the income of the deceased as per the schedule of minimum wages prevailing on the date of accident. Learned Advocate, therefore, submits that present Appeal requires consideration for

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enhancement of the compensation on the basis of monthly income of Rs.9,000/-.

6. As against the same, learned Advocate Shri Rathin P. Raval for the respondent No.3 Insurance Company while supporting impugned judgment and award, strongly opposed the present Appeal. It is the submission of learned Advocate Shri Raval that in absence of the evidence of income, the learned Tribunal has rightly considered the monthly income of the deceased at Rs.5,000/- per month and therefore, the learned Tribunal has not committed any error in computing the compensation. He further submits that the interest is awarded at 9%, which is on higher side. Lastly, he submits that present appeal may not be allowed as the learned Tribunal has rightly awarded just compensation.

7. Having heard the learned Advocates for the parties and on perusal of the impugned judgment and award as well as evidence on record, it appears that the learned Tribunal has considered the loss of dependency on the basis of monthly income of Rs.5,000/-.

8. The learned Tribunal observed that as per the pleadings, the deceased was doing labour work and used to earn Rs.9,000/- per month at the time of accident. It is pertinent note that it is difficult to ascertain the income in absence of documentary evidence regarding the income of the deceased, who was working in unorganized sector. The learned Tribunal further observed that there is no cogent evidence about the said income of Rs.9,000/- earned by the deceased per month at the time of accident. Therefore, the Tribunal has committed grave in considering Rs.5000/- as in the year 2017, the minimum wages prevailing in the State of Gujarat was Rs.7900/- for unskilled workers. Therefore, the Tribunal could not and ought not to have considered a income which would be less than the monthly wages as prescribed for that year by the statute.

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9. In view of the above, the income of the deceased is required to be considered as Rs.7,900/- per month and same is fixed for the purpose of computing the amount of loss of dependency.

10. Considering the income of the deceased as Rs.7,900/- instead of Rs.5000/-, the claimants - appellants herein are entitled to get the compensation as under:

On the basis of Rs.7,900/- as monthly income of the deceased in the year 2017, he would get 25% rise if would alive as prospective income and therefore, Rs.7900 x 25% =Rs.9,875/- would come. After deducting 1/3rd towards personal expenses of the deceased, the amount would come to Rs.6,583/- [Rs.9,875 - Rs.3,292 (1/3rd)]. The deceased was 42 years old at the time of accident and therefore, 14 multiplier is applied and hence, the future loss of dependency would come to Rs.11,05,944/-. The compensation towards the loss of consortium of Rs.80,000/-, funeral expenses of Rs.15,000/- and Rs.15,000/- towards the loss of Estate are just and proper. Therefore, in all the claimants are entitled to get compensation of Rs.12,15,944/- from the Insurance Company. Considering the contention of the learned Advocate for the Insurance Company that the interest rate is on higher side and therefore, the interest is decreased from 9% to 7.5% on the total compensation amount. Therefore, the appellants - original claimants would be entitled to get total compensation of Rs.12,15,944/- with 7.5% from the Insurance Company.

11. AS the Tribunal has already awarded compensation of Rs.8,10,000/- , the appellants would be entitled to get additional compensation of Rs.4,05,944/- (Rs.12,15,944/- minus Rs.8,10,000/-). Now, the appellants - original claimants are entitled for additional compensation of Rs.4,05,944/- with 7.5% interest p.a. on enhanced amount as consented by the learned Advocate for the appellants from the date of filing of claim till its

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realization.

12. The respondent No.3 - Insurance Company shall deposit aforesaid additional amount of Rs.4,05,944/- with interest at the rate of 7.5% from the date of filing of claim petition till its realization before the learned Tribunal within a period of 60 days from the date of receipt of this order.

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

(NIKHIL S. KARIEL,J) Y.N. VYAS