Amjiba Wd/O Narendrasinh Alias ... vs Lilaram Johrilal Yadav
2021 Latest Caselaw 17246 Guj

      C/FA/2370/2019                                 JUDGMENT DATED: 16/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST appeal NO. 2370 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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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 ?

==========================================================
 AMJIBA WD/O NARENDRASINH ALIAS KALUSINH CHAMPAKSINH DABHI & 7
                                 other(s)
                                  Versus
                 LILARAM JOHRILAL YADAV & 4 other(s)
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1,2,3,4,5,6,7,8
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1,2,4
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 5
==========================================================

CORAM:        HONOURABLE MR. JUSTICE R.M.CHHAYA
              and
              HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                Date : 16/11/2021
                                ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/2370/2019 JUDGMENT DATED: 16/11/2021

1. Feeling aggrieved and dis-satisfied by the judgement and award dated 7.2.2018 passed by Motor Accident Claims Tribunal (Aux.), Palanpur in Motor Accident Claim Petition No.90 of 2017, the appellants-original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act")

2. Heard Mr. Kaash Thakkar, learned advocate appearing for the appellants and Mr. Tanmay Karia, learned advocate appearing for respondent No.3 - IFFCO Tokyo General Insurance Co. Ltd. As the liability is not denied, presence of respondent Nos. 1 and 2 is not essential for deciding the present appeal and with the consent of learned advocates appearing for the parties, the appeal is taken up for final disposal forthwith.

3. Draft amendment submitted by the appellants to enhance the appeal stands allowed. The same may be carried out forthwith.

4. Following facts emerge from the record of the appeal.

4.1. According to the appellants-claimants, deceased Narendrasinh @ Kalusinh Champaksinh Dabhi was proceeding towards village Aatroli on 4.4.2017 driving his tractor bearing registration No. GJ- 8-AP-0253. It is the case of the appellants that at about 1:00 p.m. when the tractor reached Chekhla Patia, respondent No.1 herein who was driving a Trailer bearing registration No. RJ-32-GA-9196 came from the behind and as the said Trailer was being driven in rash and negligent manner and dashed with the tractor driven by the deceased from behind because of which, the deceased sustained serious injuries and was admitted in ICU at Mehsana hospital. The record indicates that on 9.4.2017, the deceased expired during the

C/FA/2370/2019 JUDGMENT DATED: 16/11/2021

treatment. An FIR was lodged with the jurisdictional of the police- station. The appellants-claimants preferred the Claim Petition under Section 166 of the Act and claimed compensation of Rs. 25 lakhs.

4.2. It was the case of the claimants that the deceased was a skilled worker and was working as a Mason with the construction company since three years. The wife of the deceased was examined at Exh.23 and appellants also relied upon the oral evidence of Mr. Ankit Pravinchandra Pathak that is the employer of the deceased at Exh.38. The appellants-claimants also relied upon other documentary evidence such as school leaving certificate of deceased at Exh.30, copy of the FIR at Exh.32, panchnama of the scene of accident at Exh.33, inquest panchnama at Exh.34, PM note at Exh.35, copy of the driving licence of the Trailer and RC book of the Trailer at Exhs. 36 and 37 respectively. The Tribunal after appreciating the evidence on record determined the income of the deceased at Rs.5,000/- p.m. and and also considered increase in income, by way of prospective income to the tune of 40%, deducted 1/5th of the income of the deceased towards personal expenses and applying multiplier of 17 awarded a sum of Rs.11,42,400/- as compensation under the head of loss of dependency. Over and above the same following the judgement of the Apex Court in the case of National Insurance Company v. Pranay Sethi & Ors. reported in 2017 (16) SCC 680 awarded Rs.40,000/- towards consortium and Rs.15,000/- towards Loss of Estate and Rs.15,000/- as funeral expenses and also awarded Rs.50,000/- towards medical reimbursement and thus awarded total compensation of Rs.12,62,400/- with 9% interest. Feeling aggrieved by the same, the present appeal is filed.

5. Mr. Kaash Thakkar, learned advocate appearing for the

C/FA/2370/2019 JUDGMENT DATED: 16/11/2021

appellants has heavily relied upon the deposition of Mr.Ankit Pravinchandra Pathak, the employer of the deceased as well as the certificate dated 5.6.2017 at Exh.39 and has further contended that the Tribunal has committed an error in determining the income of the deceased at Rs.5,000/- p.m. Mr. Kaash Thakkar, learned advocate further referring to the cross-examination of the said witness contended that the Insurance Company has not been able to disprove any such aspect in the cross-examination of the said witness. Referring to the deposition of the said witness it was contended by Mr. Thakkar that when the evidence was there, the Tribunal had no jurisdiction to apply principle of "guess work" and determine the income at Rs.5,000/- p.m. Mr. Thakkar, learned advocate, therefore contended that the income should have been determined at Rs.18,000/- p.m. Relying upon the judgement of the Apex Court in the case of United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors. reported in AIR 2020 SC 3076, it was contended by Mr. Thakkar, learned advocate appearing for the appellants that the Appellant Nos. 2 and 3 who were minors would be entitled to parental consortium. It was also further contended that the Appellant Nos. 4 and 5 being father and mother of the deceased be entitled to filial consortium. On the aforesaid grounds, it was contended by Mr. Thakkar, that the appeal be allowed and the impugned judgement and award be modified.

6. Per contra, Mr. Tanmay Karia, learned advocate for the Insurance Company has opposed this appeal. Mr. Karia, learned advocate also relied upon the deposition of the witness Mr. Ankit Pravinchandra Pathak at Exh.38 contended that the appellants have not proved the income and, therefore, the Tribunal has correctly applied "guess work" and determined the income fo the deceased as Rs.5,000/- p.m. Mr. Karia, learned advocate also contended that

C/FA/2370/2019 JUDGMENT DATED: 16/11/2021

the ratio laid down by the Apex Court in the case of Satinder Kaur @ Satwinder Kaur & Ors. (supra) shall not be applicable in this case. Mr. Karia, also contended that the appeal being merit-less deserves to be dismissed.

7. No other or further submissions or grounds have been raised by learned advocates appearing for the parties.

8. Have perused the original record and proceedings. Upon re- appreciation of the evidence on record, Mr.Ankit Pravinchandra Pathak at Exh.38 has clearly deposed before the Tribunal that the deceased was working in his firm as a Mason engaged in work of Masonry and was paid Rs.15000-18000/- p.m. Upon re-appreciation of the evidence of the said witness and upon re-appreciating the evidence in form of certificate at Exh.39 it clearly transpires that the deceased was a skilled Mason and was engaged in Masonry work in the firm of the witness Mr. Ankit Pravinchandra Pathak at Exh.38. The said witness has categorically stood the test of veracity of his version to the effect that the deceased was working in his firm and that he was paid Rs.15000 to Rs.18000/- p.m. Upon considering the very piece of evidence it clearly transpires that the deceased was not a permanent employee of the said firm. But it clearly appears that the deceased was engaged by the said firm regularly as and when the work was there. Even if the lowest amount as per the said deposition is considered this Court is of the opinion that the income of the deceased can safely be assessed as Rs.15,000/- p.m. and thus, we find that the Tribunal has committed an error in determining the income of the deceased only at Rs.5,000/- p.m.

9. Appellant Nos.2 and 3 are the minor children of the deceased

C/FA/2370/2019 JUDGMENT DATED: 16/11/2021

totally depending upon the deceased so are the parents being Appellant Nos.4 and 5. Following the ratio laid down by the Apex Court in the case of Satinder Kaur @ Satwinder Kaur & Ors. (supra) as well as the ratio laid down by the Apex Court in the case of Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and Ors. reported in 2018(18) SCC 130, respondent Nos.2 and 3 as minor children would be entitled to parental consortium and appellant Nos.4 and 5 as parents would be entitled to filial consortium of Rs.40,000/- each.

10. Having come to the aforesaid conclusion, the appellants would be entitled to compensation under the head of loss of dependency.

Rs.15000/-(per month income) + Rs.6000/- (40% prospective income) = 21,000/- - 4200/- (1/5 towards personal income = Rs16,800/- x 12 (pa)= 2,01,600/- X 17 (Multiplier as the age of the deceased was 24 years) = 34,27,200/-.

11. Over and above the same, the Appellant No.1 would be entitled to consortium of Rs.40,000/-, Appellant Nos. 2, 3, 4 and 5 would also be entitled to parental and filial consortium respectively at Rs.40,000/- each. Over and above the same, the Appellant would be entitled to Rs.15,000/- under the head of loss of estate and Rs.15,000/- towards funeral expenses. As rightly contended by learned advocates appearing for the parties, there is no challenge to the medical reimbursement to the tune of Rs.50,000/-.

12. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to total compensation as under:

       C/FA/2370/2019                            JUDGMENT DATED: 16/11/2021



Particulars                          Amount (Rs.)
Future loss of income                34,27,200/-
Loss of consortium and Parental 2,00,000/-
consortium
Loss of Estate                       15,000/-
Funeral expenses                     15,000/-
Medical Bills                        50,000/-
Total                                37,07,200/-

13. At the end the learned advocate appearing for the Insurance Company also contended before this Court that the interest on enhanced amount be provided @ 8% instead of 9% as provided by the Tribunal. We find that the discretion exercised by the Tribunal is proper and no alteration is required.

14. Thus, the appellants- claimants would be entitled to total compensation of Rs.37,07,200/-. As the Tribunal has awarded an amount of Rs. 12,62,400/-, the respondent Insurance Company shall deposit the additional amount of Rs.24,44,800/- with 9% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. Appeal is thus allowed. The rest of the judgment and award passed by the learned Tribunal has remained unaltered. Appellants shall pay the deficit Court fees forthwith. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

(R.M.CHHAYA, J)

(MAUNA M. BHATT, J) NAIR SMITA V.