Gujarat High Court
Chandrikaben Wd/O Sureshbhai ... vs Renukaben Wd/O Kantibhai ... on 17 November, 2021
Bench: R.M.Chhaya
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2742 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==============================================================
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 of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
CHANDRIKABEN WD/O SURESHBHAI RUPABHAI NINAMA & 5
other(s)
Versus
RENUKABEN WD/O KANTIBHAI NANJIBHAI NINAMA & 2 other(s)
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1,2,3,4,5,6
MRS KIRAN P JOSHI(1328) for the Appellant(s) No. 1,2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,1.1,1.2,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 29.12.2008 passed by the Motor
Accident Claims Tribunal (Main), Sabarkantha at
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
Himatnagar in MACP No.937 of 2004 present appeal under
Section 173 of the Motor Vehicles Act has been filed by the
appellants- original claimants.
2.0. The following facts emerge from the record of this
appeal:
2.1. That accident occurred on 23.3.2004 when deceased
Sureshbhai was driving the Jeep No. GJ-9M-2492 with
slow speed on correct side of the road towards Bhiloda and
at the time of accident, opponent no.1 Driver of Tractor
No.GJ-9E-7467 driving his tractor with full speed in rash
and negligent manner on wrong side and dashed with Jeep
of the deceased, because of which, deceased sustained
serious injuries and succumbed to the same. An FIR was
lodged with the jurisdictional Police Station. It is the case of
the appellants that deceased was aged about 32 years at the
time of accident. The appellants preferred claim petition
under Section 166 of the Act and claimed compensation at
Rs. 21 lakh. The appellants also adduced following oral as
well as documentary evidence before the Tribunal.
Exh.No. Particulars
32 FIR
33 Panchnama of place of accident
34 Inquest Panchnama of deceased
35 PM Note of the deceased
22 School leaving certificate of the deceased
23 to 27 Educational Certificate of deceased
48 to 31 Village Form No. 8-A and 7/12
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
38 Copy of insurance policy of involved tractor
36 Charge Sheet
37 Caste certificate of deceased
59 Salary certificate of deceased
60 Panchnama of involved tractor
The Tribunal after appreciating the evidence on record
and considering the submissions made by the respective
parties, partly allowed the claim petition and awarded the
compensation of Rs.8,46,780/- with 7.5% interest from the
date of application till its realization with proportionate
costs. Being aggrieved and dissatisfied with the same, the
present appellants preferred present appeal.
3.0. Heard Ms.Kiran P Joshi, learned advocate for the
applicants- original claimants and Mr.H G Muzmudar,
learned advocate for the Insurance Company. Though
served, nobody appears on behalf of other respondents. We
have also perused the original record and proceedings of the
case.
4.0. Ms. Joshi, learned advocate for the appellants has
contended as under:
4.1. That the Tribunal has committed an error in deducting
1/3rd towards personal expenses. Relying upon the
judgment of the Hon'ble Supreme Court in the case of Sarla
Verma and ors. vs. Delhi Transport Corporation and Anr
reported in 2009 ACJ 1298, it was contended by Ms. Joshi
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
that as the dependents were six in number, deduction has
to be 1/4th. Ms. Joshi further contended that the Tribunal
has also committed an error in awarding only Rs.23,000/-
under the different conventional heads. Ms. Joshi relying
upon the judgment of the Hon'ble Supreme Court in the
case of United India Insurance Company Limited vs.
Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC
3076 contended that the appellant nos. 2 to 5 as minor
children and appellant no.6 as mother would also be
entitled to parental as well as filial consortium respectively.
4.2. Ms. Joshi relying upon the FIR at Exh.32 and
panchnama of the place of accident at Exh.33 contended
that the Jeep was driven by the deceased in slow speed on
the right side whereas Tractor was being driven at full
speed, because of which, the accident has occurred.
According to Ms. Joshi learned Tribunal has committed an
error in coming to the conclusion that driver of both the
vehicles were contributory negligent. Ms. Joshi contended
that the Tribunal has straightway without appreciating the
manner in which the accident has occurred come to the
conclusion that the deceased as owner and driver of the
Jeep was equally negligent and has attributed 50%
negligence to the owner and driver of the Jeep. On the
aforesaid grounds, Ms. Joshi, therefore, submitted that the
impugned judgment and award deserves to be modified by
allowing the appeal.
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
5.0. Per contra, Mr. Mazmudar, learned advocate for the
Insurance Company has opposed the present appeal. Mr.
Mazmudar contended that the Tribunal has awarded just
and adequate compensation and no further modification or
alternation is necessary. Relying upon the very panchnama
and FIR, Mr. Mazmudar contended that the Tribunal having
appreciated the evidence as to how accident has occurred,
has rightly come to the conclusion that the deceased as
driver of the Jeep was equally negligent. Supporting the
conclusion arrived at by the Tribunal on the aspect of
negligence, Mr. Mazmudar contended that the appeal being
totally meritless, deserves to be dismissed.
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
7.0. Having considered the submissions made and as an
admitted position that there are six claimants, following
judgments of the Hon'ble Supreme Court in the case of arla
Verma and ors (supra) and in the case of National
Insurance Company Limited vs. Pranay Sethi & ors reported
in (2017) 16 SCC 680, as the dependents are six, deduction
towards personal expenses would come to the extent of ¼
and not 1/3 rd as considered by the Tribunal . Upon re-
appreciation of evidence on record at Exh.32- FIR and 33-
Panchnama, it clearly appears that tractor dashed with the
Jeep and the damage which is found from the panchnama
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
of the tractor at Exh.60 also indicates that though the Jeep
was a smaller vehicle and tractor was sturdy vehicle, tractor
is also damaged to some extent. Upon re-appreciating such
evidence on record was clearly transpires that both the
vehicles were being driven in rash and negligent manner
and driver of both the vehicles are contributory negligent.
However, considering the fact that tractor is heavy and
sturdy vehicle, driver of tractor ought to have more careful
and hence driver of the tractor has to be considered more
negligent than the deceased as a driver of the Jeep. Upon
re-appreciation of the evidence on record, this Court is of
the opinion that driver of the tractor was negligent to the
extent of 70% whereas the deceased as driver and owner of
the Jeep was negligent to the extent of 30%. Ms. Joshi,
learned advocate for the appellants has correctly submitted
that appellant nos. 2 to 5 as children would be entitled to
parental consortium and appellant no.6 as mother would be
entitled to filial consortium. We also find that the age of the
deceased was 32 years on the date of accident and following
the judgment of the Hon'ble Supreme Court in the case of
Sarla Verma (supra), the appellants would be entitled to
multiplier of 16 and not 17 as awarded by the Tribunal.
Having come to the aforesaid conclusion, the original
claimants would be entitled to compensation under the
head of loss of dependency as under:
Particulars Amount (Rs.)
Income 8189/-
Future prospective Income 12,283/- (50%)
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
Deduction towards personal 3070.75 (3070 rounded of)
expenses 1/4th
Monthly future loss of 12,283- 3070 =9213
dependency
Yearly future loss of 9213 x 12 = 1,10,556/-
dependency
Multiplier of 16 (as the 1,10,556 x 16 = 17, 68,896/-
deceased was 32 years)
8.0. Following the ratio laid down by the Hon'ble Supreme
Court in the case of Satinder Kaur @ Satwinder Kaur
(supra), the original claimants - appellants no. 2 to 5 would
be entitled to parental consortium to the tune of
Rs.40,000/- each and appellant no.6 would be entitled to
filial consortium to the tune of Rs.40,000/- i.e. Total
consortium at Rs.2,00,000/-. The claimants would also be
entitled to further amount of Rs.15,000/- towards loss of
estate and funeral expenses and thus, the respondents
claimants would be entitled to compensation as under:
Particulars Amount (Rs.)
Future loss of income 17,68,896/-
Parental consortium 2,00,000/-
Loss of estate 15,000/-
Loss of consortium 10,000/-
Loss of mental pain, shock 10,000/-
and suffering
Funeral expenses 3000/-
Total Compensation 20,06,896/-
9.0 Thus, the claimants would be entitled to compensation
C/FA/2742/2009 JUDGMENT DATED: 17/11/2021
of Rs.20,06,896/-with 7.5% interest from the date of
application till its realization. Upon re-appreciation of the
evidence on record, this Court is of the opinion that
deceased as driver and owner of the Jeep was negligent to
the extent of 30%. Thus, the appellants would be entitled to
total compensation of Rs. 14,04,827/-(Rs.20,06,896/-
minus Rs. 6,02,068/-). As the Tribunal has awarded an
amount of Rs.8,46,778/-, the respondent Insurance
Company shall deposit the additional amount of Rs.
5,58,049/- with 7.5% interest from the date of filing claim
petition till its realization and with proportionate costs with
the Tribunal within a period of 8 weeks from the receipt of
the order. The impugned judgment and award is modified
to the aforesaid extent. Appeal is thus, partly allowed.
Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith,
if any. However, there shall be no order as to costs.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
