Fatesinh Samantsinh Gohil vs Alpeshkumar Jalamsinh Jadav
2021 Latest Caselaw 17496 Guj

       C/FA/1760/2021                                           ORDER DATED: 22/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO.              1760 of 2021

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                           FATESINH SAMANTSINH GOHIL
                                     Versus
                          ALPESHKUMAR JALAMSINH JADAV
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MR N V RAVAL(11267) for the Defendant(s) No. 1
MR VIJAY N RAVAL(2025) for the Defendant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                 Date : 22/11/2021

                                       ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act of 1988') by the appellants - original claimants challenging the judgment and award dated 04.01.2020 passed by the Motor Accident Claims Tribunal (Aux.), Anand (hereinafter referred to as the 'Tribunal') in Motor Accident Claims Petition No.286 of 2016 and prayed for enhancement of compensation.

2. Heard learned advocate Mr. Nishit Bhalodi for the appellants, learned advocate Mr. Vijay Raval for opponent No.1 and learned advocate Ms. Sejal Mandavia for opponent No.2.

3. Since limited contention is raised to make the compass of the controversy narrow, the appeal could

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be decided on legal principles alone for which the Record and Proceedings are not necessary to be called for. It is further pertinent to note that this Court, vide order dated 07.07.2021, issued notice for final disposal as the issue involved in the present appeal is covered by the decision rendered by this Court in First Appeal No.91 of 2020 decided on 06.02.2020.

4. That the present appellants - original claimants filed Claim Petition under Section 166 of the Act of 1988 for recovery of compensation of Rs.15 lakh for the death of deceased Manguben Fatesinh Gohil, who died in a vehicular accident. It is the case of the original claimants that the alleged vehicular accident took place on 31.05.2016 when the deceased was travelling as a pillion rider and returning from Rangaipura on a motorcycle bearing Registration No.GJ-6-CR-8487. The said motorcycle was driven by the driver in a moderate speed on the correct side of the road. When the said motorcycle was passing near Jalaram Mandir on Borsad-Anand road, at that time, one S.T.Bus bearing Registration No.GJ-18-YZ-119, which was driven by the opponent No.1 with an excessive speed and in rash and negligent manner, dashed with the motorcycle, as a result of which, the deceased sustained serious injuries and thereafter succumbed to the injuries. It is the case of the original claimants that the deceased was aged about 53 years at the time of accident and was earning Rs.10,000/- per month from agricultural as well as animal husbandry work.

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5. The opponent No.2 filed written statement vide Exh.25 and thereafter oral and documentary evidence was led before the Tribunal. The Tribunal, vide judgment and award dated 04.01.2020, partly allowed the claim petition and thereby held the opponent Nos. 1 and 2 jointly and severally liable to pay compensation of Rs.5,54,044/- to the original claimants together with interest @ 9% per annum from the date of claim petition till realization of the amount. The opponents were also directed to pay the cost to the original claimants.

6. While passing the aforesaid judgment and award, the Tribunal considered the aspect of negligence as well as quantum. On the basis of the FIR Exh.17, Panchnama Exh.18 as well as other documentary evidence, it was held by the Tribunal that the opponent No.1 - driver of S.T.Bus was solely negligent.

7. On the aspect of quantum, the appellant No.1 gave deposition which was recorded at Exh.14. It was deposed that deceased Manguben was member of Angadh Milk Produce Sahakari Mandali and in the year 2014, she had deposited milk worth Rs.2,39,125/-, and in the year 2015, milk worth Rs.2,18,373/- was deposited and in the year 2016 up to 30.05.2016 she had deposited milk worth Rs.40,262/-. However, the Tribunal observed that the claimants have not examined any authorized person of the Milk Produce

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Mandali to prove the income of the deceased from the milk. Thus, in absence of any cogent evidence and considering the fact that accident took place in the year 2016, the Tribunal considered monthly income of the deceased at Rs.5,000/-. Moreover, relying upon the decision rendered by the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, reported in (2006) 9 SCC 121, the multiplier of 11 was adopted considering the age of the deceased. The Tribunal thereafter referred to the decision of the Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680 and added 10% towards prospective income loss considering the age of the deceased and status of the deceased as self- employed and thus arrived at the figure of Rs.4,84,044/- towards the future loss of income. The Tribunal also awarded lumpsum amount of Rs.55,000/- towards the loss of estate and consortium. The Tribunal further awarded Rs.15,000/- as funeral expenses and thus awarded total compensation of Rs.5,54,044/- along with 9% interest.

8. Learned advocate for the appellants submitted that monthly income of Rs.5000/- assessed by the Tribunal is on lower side. It is contended that the accident had taken place in the year 2016 and therefore even if the Tribunal was of the opinion that evidence was not available to accept the claim of income of the deceased at Rs.10,000/- per month, in absence of any evidence on income criteria, the

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income of the deceased ought to have been assessed on the basis of the minimum wages prevalent in the year of accident i.e. in the year 2016. After referring to the minimum wages prevalent in the year 2016, it is contended by learned advocate for the appellants that the Tribunal ought to have considered monthly income of the deceased at Rs.7,800/-.

9. On the other hand, learned advocates appearing for the opponents are not in position to dispute the fact that the minimum wage prevalent at the relevant point of time was Rs.7,800/-.

10. Thus, considering the submissions canvassed by learned advocate for the appellants, this Court is of the view that Rs.7,800/- per month which was prevalent at the relevant point of time in the year 2016 as minimum wage should be considered as income of the deceased in absence of any other proof of income. As per the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (supra), 10% is required to be added as prospective income of the deceased. Thus, the figure comes to Rs.8,580/- per month (Rs.7,800/- + Rs. 780 = Rs.8,580/-).

11. Applying the monthly income of the deceased as above, the compensation would have to be arrived at. Since there are total three dependents of the deceased, 1/3rd amount is required to be deducted from Rs.8,580/- towards personal expenses. Thus, the final figure comes to Rs.5,720/- (Rs.8,580/- -

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Rs.2,860/- = Rs.5,720/-). Now, as per the decision of the Hon'ble Supreme Court rendered in the case of Sarla Verma (supra), if multiplier of 11 is adopted then the final figure comes to Rs.7,55,040/- (Rs.5,720 x 12 x 11 = Rs.7,55,040/-). Thus the claimants - appellants herein are entitled to get the amount of Rs.7,55,040/- under the head of future loss of income of the deceased instead of Rs.4,84,044/- as awarded by the Tribunal.

12. Learned advocate for the appellants - original claimants referred to the decision rendered by the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and contended that as per the said decision, appellant no.1 being husband of the deceased Manguben is entitled to get Rs.40,000/- under the head of loss of spousal consortium, whereas appellant Nos. 2 and 3 being sons of the deceased Manguben are entitled to get Rs.40,000/- each under the head of loss of parental consortium and all the appellants are entitled to get Rs.15,000/- under the head of loss of estate and therefore the Tribunal has committed an error in awarding lumpsum amount of Rs.55,000/- under the head of loss of estate and consortium.

13. At this stage, this Court would like to refer to the relevant observations made by the Hon'ble Supreme Court in para 38, 39, 40 and 42 of the decision of Somwati and others (supra), which read as under:

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"38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss of consortium' but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.

39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.

40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head 'loss of love and affection'. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head 'loss of love and affection'.

xxx      xxx xxx

42. This         Court    in     the    above
case    confined    its consideration towards

the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for

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payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents."

14. From the aforesaid judgment, it appears that the Hon'ble Supreme Court finds the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law. Thus, this Court is of the view that each appellant - original claimant is entitled to get an amount of Rs.40,000/- under the head of loss of consortium. Thus, total figure comes to Rs.1,20,000/- under the head of loss of consortium.

15. Thus, the appellants are entitled to get the following final amount as compensation:

1. Rs.7,55,040=00 towards future loss of income

2. Rs.1,20,000=00 towards loss of consortium (spousal as well as parental)

3. Rs.15,000=00 towards loss of estate

4. Rs.15,000=00 towards funeral expenses ______________ Rs.9,05,040=00 Total

16. Thus, the Tribunal has committed an error in awarding total compensation of Rs.5,54,044/- under various heads. The appellants - original claimants

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are, therefore, entitled to the additional amount of compensation of Rs.3,50,996/- over and above the amount of Rs.5,54,044/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.3,50,996/- to the appellants - original claimants together with interest @ 9% per annum from the date of the claim petition till realization.

16. The appeal stands partly allowed. The judgment and award dated 04.01.2020 passed by the Tribunal in Motor Accident Claims Petition No.286 of 2016 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above.

17. The disbursement of the aforesaid additional amount of compensation shall be after proper identification of the claimants and following procedure, by issuing the account payee cheque for the proportionate amount.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI