Manish Manilal Parmar Since Decd. ... vs Bharatkumar Vrajlal Brahmbhatt
2021 Latest Caselaw 4900 Guj

           C/FA/4406/2008                                       JUDGMENT



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 4406 of 2008

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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          MANISH MANILAL PARMAR SINCE DECD. THROUGH HEIRS
                              Versus
            BHARATKUMAR VRAJLAL BRAHMBHATT & 1 other(s)
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Appearance:
MS NISHA M THAKORE(3293) for the Appellant(s) No. 1,1.1,1.2,1.3
MR HS MUNSHAW(495) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 31/03/2021
                       ORAL JUDGMENT

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 15.2.2008 passed by the Motor Accident Claims Tribunal (Auxi), Fast Track Court No.5, Ahmedabad in MACP No. 638 of 2000, the appellants - original claimants have preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 ("Act" for short).

2.0. The following facts emerge from the record of this appeal: 2.1. That the accident occurred on 6.7.2000at about 11.20 hours

C/FA/4406/2008 JUDGMENT

in Ahmedabad City. It is the case of the appellants that son of the appellant nos. 1 and 2 Manish aged about 19 years was standing at the Majoorgaon Bus Stop awaiting for a bus for HK Commerce College. AMTS Bus Route No. 13/1 bearing registration no. GJ­10T­ 7562 came from Isanpur side. The record indicates that deceased Manish climbed up the stair of the said Bus and immediate thereafter, the driver of the said bus started the bus with a view to overtake another AMTS bus being Route No.72 in such rash and negligent manner that the deceased Manish was crushed between two buses and fell down. The record indicates that the injuries sustained were so serious that the deceased Manish died on the spot. An FIR was lodged with the concerned police station at Exh.24. The claimants preferred claim petition under Section 166 of the Act and claim compensation of Rs.8 lakh.

2.2. It is the case of the appellants - claimants that the accident occurred due to negligence on the part of the driver of the AMTS bus. It was further the case of the claimants that deceased was 19 years old and was studying in SY.Bcom and was very bright future. The appellants­ claimants examined appellant no.1 at Exh.42 and also relied upon the documentary evidence such as panchnama of place of incident at Exh.25, Inquest Panchnama of the deceased at Exh.26, Statement of applicant­ Manilal at Exh.27, Follow up Card of deceased Manish at Exh.28, Postmortem report of deceased at Exh.29, copy of the mark­sheet of New SSC of the deceased at Exh.30, Caste Certificate of deceased at Exh.31, copy of first attempt of deceased issued by Shri Sardar Patel & Swami Vivekanand High School at Exh.32, Copy of the mark­sheet of HSC of the deceased at Exh.34 & 35, School leave certificate of the deceased at Exh.36, Certificate of

C/FA/4406/2008 JUDGMENT

the deceased showing participation in Senior National Net­ Ball at Exh.37, copy of mark sheet of Fy. B.com of the deceased at Exh.38, copy of the resolution passed by the Shri H K College of deceased at Exh.39 and copy of the 23rd Senior National Tenni­ Koit Championship of the deceased at Exh.40. The said MACP was heard by the Tribunal along with another Claim Petition No. 454 of 2001 which arise out of the same accident. After considering the evidence on record, the Tribunal considered notional income of the deceased at Rs.1500/­ and deducted 2/3rd amount as pocket expenses and applying multiplier 15, awarded a sum of Rs.90,000/­ as compensation under the head of loss of dependency. The Tribunal further awarded sum of Rs.15000/­ for loss of expectancy of life and Rs.3000/­ for funeral expenses and thus awarded total compensation of Rs.1,08,000/­ along with interest at rate of 9% pa from the date of filing of claim petition till its realization with proportionate costs. Upon appreciating the evidence, the Tribunal come to the conclusion that the driver of the AMTS was solely negligent for the accident.

2.3. Being aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the appellants­ original claimants have preferred present appeal.

3.0. Heard Ms. Nisha Thakore, learned advocate for the appellants­ original claimants and Mr. H S Munshaw, learned advocate for the respondent no.2. Though served, nobody appears on behalf of other respondents. I have also perused the record and proceedings of the case.

4.0. Ms. Thakore, learned advocate for the appellants contended as under:

C/FA/4406/2008 JUDGMENT

4.1. That the Tribunal has committed error in considering the national income of the deceased Manish at Rs.1500/­ only, which should be suitably enhanced.

4.2. It was contended by Ms. Thakore that the Tribunal has wrongly deducted 2/3rd from the income as personal expenses of the deceased only because deceased was unmarried.

4.3. Ms. Thakore also contended that the Tribunal has erred in not granting any prospective income.

4.4. Ms. Thakore contended that Tribunal has committed error in granting meager amount of Rs.18,000/­ towards conventional heads, which should be enhanced.

4.5. Ms. Thakore also further contended that the appellants who are parents has lost their only son aged about 19 years. According to Ms. Thakore, appellants would also be entitled filial consortium as they have lost of their only son. Ms. Thakore contended that appeal be allowed as prayed for by modifying the impugned judgment and award.

5.0. Per contra, Mr. Munshaw has supported the impugned judgment and award passed by the learned Tribunal. Mr. Munshaw submitted that appellants have not adduced any evidence as far as income is concerned and hence it was contended by Munshaw that the Tribunal has correctly assessed the income of the deceased at Rs.1500/­ as notional income.

5.1. Mr. Munshaw contended that considering the date of accident, the Tribunal has rightly deducted 2/3rd towards pocket expenses of the deceased and according to Mr. Munshaw, Tribunal has rightly adopted the multiplier of 15.

C/FA/4406/2008 JUDGMENT

5.2. Mr. Munshaw contended that in facts of this case the appellants are not entitled for any filial consortium as contended by Ms. Thakore, learned advocate for the appellants. Mr. Munshaw contended that the Tribunal has granted just compensation, which does not require any alteration / interference. Mr. Munshaw contended the appeal being merit less and deserves to be dismissed.

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

7.0. Upon hearing the learned advocates for the respective parties and upon perusal of the original record and proceedings of the case, it transpires that appellants have not adduced any evidence except oral assertion of one of the appellant who happens to be father of the deceased Manish to prove the income of the deceased. The Tribunal has no other alternative but to determine the income of the deceased by way of guess work. It is matter of record that the deceased was 19 years and was studying in 2nd year B.com. Upon re­appreciation of the evidence on record as a whole, the Tribunal has therefore, correctly assessed the income of the deceased at Rs.1500/­. However, the Tribunal has committed an error in deducting 2/3rd towards personal expenses of the deceased as he was unmarried. It can also be seen that the Tribunal has not considered any prospective income. Following ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 and in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, the appellants would be entitled to 40% increase in income by way of

C/FA/4406/2008 JUDGMENT

prospective income. As per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (supra), only one half of the income would be deductible as deceased Manish was unmarried. As the deceased Manish was 19 years of old on the date of accident, appropriate multiplier would be 18. Similarly, following the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the appellants would also be entitled to additional compensation of Rs.70,000/­ under the different conventional heads including funeral expenses.

7.1. The record clearly indicates that the deceased was just 19 years old on the date of accident. It is an admitted position that deceased Manish was the only son of appellants no.1 and 2. It is also a matter of fact that deceased had a very bright future and was pursuing his study in 2nd year of graduation. The appellant no.1 is father and appellant no.2 is mother who have lost their only beloved son at tender age of 19 years. Following ratio laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and Ors reported in (2018) 18 SCC 130 as well as recent judgment of the Hon'ble Supreme Court in the case of United India Insurance Company Limited vs. Satinder Kaul and other rendered in Civil Appeal No. 2705 of 2020, in facts of this case, appellant nos. 1 and 2 as parents would be entitled to filial consortium as greatest agony for a parent is to lose their child during the lifetime. Following the aforesaid judgment, in facts of this case, the appellants no. 1 and 2 would be entitled to filial consortium of Rs.40000/­ each.

8.0. Having come to the aforesaid conclusion, therefore, the

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appellants would be entitled to total compensation as under:

             " 1500/­       (per month) + 600 (40% prospective)=
             2100/­         minus Rs.1050/­ (1/2 towards persons
             expenses)= 1050/­ x 12= 12,600/­ pa x 18

(Multiplier)= 2,26,800/­ and Rs.70,000/­ towards different conventional amount and Rs.80,000/­ towards loss of filial consortium."

Thus, Claimants would be entitled to total compensation of Rs.3,76,800/­. As the Tribunal has awarded Rs.1,08,000/­,the appellants would be entitled to an additional amount of Rs.2,68,800/­. Insurance Company shall deposit the additional amount with 9% interest from the date of Claim Petition till its realization. Accordingly, the appeal is allowed to the aforesaid extent. The impugned judgment and award stands modified to the aforesaid extent. 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.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD