Gujarat High Court
Karimabai Ibrahim Sota vs Driver Of Trailor on 24 November, 2021
Bench: R.M.Chhaya
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4396 of 2019
With
R/FIRST APPEAL NO. 422 of 2020
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 ?
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KARIMABAI IBRAHIM SOTA
Versus
DRIVER OF TRAILOR
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 2
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
1. Both the appeals relate to the same accident and
hence, both the appeals were heard together and are
disposed of by this common judgment and order.
2. Feeling aggrieved and dissatisfied by the
judgment and award dated 16.05.2019, passed by the
Motor Accident Claims Tribunal (Aux), Kachchh at Bhuj
in MACP No. 367 of 2013, the original claimants have
preferred appeal being First Appeal No. 4396 of 2019
and Insurance Company has preferred appeal being
First Appeal No. 422 of 2020.
3. Considering the issue involved in this petition,
this Court has called for the Record and Proceedings.
4. Heard Mr. Rathin Raval, learned advocate for the
insurance company and Mr. Nishit Bhalodi, learned
advocate for the original claimants in both the
appeals.
5. Following facts emerge from the record of the
appeal -
5.1 That on 10.07.2013, deceased Osman Ibrahim Sota
was driving his Chakdo Rikshaw bearing registration
No.GJ-12-X-8718 with passengers in it from Tarpolia
Company to Zero Point, in very moderate speed and in
the right side of the road. When the deceased
reached near the place of the accident, one trailer
bearing registration no. GJ-12-AT-8834, being driven
in rash and negligent manner, came from the opposite
side. The driver of the trailer lost control over
the steering and drove the trailer on the wrong side.
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
The avoid the accident, the deceased took the chakda
rickshaw on the left side. Even though, the driver
of the trailer came on the extreme wrong side and
dashed with the chakdo riskshaw because of which the
chakdo rickshaw turned turtle and the deceased chakdo
driver received serious injuries and succumbed to the
injuries during treatment. A complaint came to be
lodged with the jurisdictional police station at
exhibit 35 and the present claim petition was filed
by the original claimants for compensation of
Rs.40,00,000/-.
5.2 It was the say of the original claimants in the
claim petition that the deceased was earning Rs.
500/- daily by driving the chakda rickshaw of his
ownership and he was also having agricultural land
and was earning Rs.5,000/- per month from the
agriculture. The deceased was earning Rs. 20,000/-
p.m. as per the say of the original claimants. One of
the claimant Reshmaben had deposed at exhibit 30.
Oral as well as documentary evidence were relied upon
such as village form no.7 at exhibit 32, village form
no.8A at exhibit 33, village form no.6 at exhibit 34,
FIR at exhibit 35, panchnama of the place of incident
at exhibit 36, inquest panchnama at exhibit 37, PM
report at exhibit 38, charge-sheet at exhibit 39,
driving license of the deceased at exhibit 40, RC
book of chakda rickshaw at exhibit 41, insurance
policy of the trailer at exhibit 69, statement of
paras liladhar at exhibit 70, extract of driving
license at exhibit 72, driving license certificate at
exhibit 73.
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
5.3 The Tribunal after appreciating the evidence on
record, determined the income of the deceased at
Rs.5,000/- and granted prospective income at 40% and
deducted 1/4th towards personal expenses and applying
multiplier of 16, awarded Rs. 10,08,000/- towards
future loss of income. The Tribunal also awarded
Rs.30,000/- towards funeral expenses and
transportation and loss of estate. The Tribunal also
awarded Rs.40,000/- towards loss of consortium.
Thus, the Tribunal awarded total compensation of Rs.
10,78,000/- with interest at the rate of 9% from the
date of filing of the claim petition till its
realisation. Feeling aggrieved by the same, the
original claimants have preferred First Appeal No.
4396 of 2019 for enhancement and the insurance
company has preferred First Appeal No. 422 of 2020
challenging the said judgment and award.
6. Mr. Bhalodi, learned advocate appearing for the
original claimants contended that the deceased was
himself the owner of the chakdo rickshaw and was
driving the same on his own and was earning handsome
amount. Mr. Bhalodi further contended that the
deceased was also engaged in the vocation of farming
and was owner of agricultural land. However, the
Tribunal has not considered the said fact and has
committed error in determining the income of the
deceased at Rs. 5,000/-. Relying upon the judgment
of the Apex Court in the case of Satinder Kaur alias
Satwinder Kaur and Ors. reported in AIR 2020 SC 3076,
it was contended by Mr. Bhalodi that the original
claimants would be entitled to filial consortium and
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
so also two minor children would be entitled to
parental consortium. On the aforesaid grounds, it
was contended that the appeal filed by the claimants
be allowed. Mr. Bhalodi further contended that the
truck driver had already license to drive Light Motor
Vehicle and the RTO officer is already been examined
at exhibit 71. Mr. Bhalodi contended that the
Tribunal has correctly appreciated the evidence on
record and has rightly passed the order of pay and
recover. Mr. Bhalodi therefore contended that the
appeal filed by the insurance company being
meritless, deserves to be dismissed.
7. As against this, Mr. Rathin Raval, learned
counsel appearing for the insurance company contended
that the claimants have adduced no evidence to show
that he was earning more than Rs.5,000/-. Mr. Raval,
learned counsel appearing for the insurance company
contended that the accident occurred on 10.07.2013
and even if it is considered that the deceased was
owner of the chakdo rickshaw, in a village like Dhrab
in Kachchh, the income assessed at Rs.5,000/- is
appropriate. Mr. Raval further contended that the
appellants-original claimants have not produced any
evidence to show that there was separate agricultural
income. It was therefore contended that in absence
of any proof thereof, the original claimants cannot
be permitted to contend that the deceased had any
other income from agriculture. Mr. Raval, relying
upon the judgment of the Apex Court in the case of
Magma General Insurance Company Limited vs. Nanuram
alias Chuhru Ram and Ors. reported in (2018) 18 SCC
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
130, contended that the father who was aged 65 years
on the date of filing of the claim petition is not
entitled to any filial consortium for the death of
his son, who was aged 34 years. Mr. Raval further
contended that as the driver of the trailer did not
possess appropriate license, the insurance company
deserves to be exonerated completely. On the
aforesaid grounds, it was contended by Mr. Raval that
the appeal filed by the insurance company deserves to
be allowed whereas the appeal filed by the original
claimants being meritless, deserves to be dismissed.
8. No other or further further submissions have
been made by the learned counsels appearing for the
respective parties.
9. Upon re-appreciation of the evidence on record,
it is the matter of fact that the deceased possessed
a Chakda rickshaw and even in a taluka place of
district like Kachchh, the deceased can very well be
presumed to be earning Rs.200/- per day, i.e.,
Rs.6,000/- per month. As the age of the deceased was
34 years, the appropriate multiplier would be that of
16. Having come to the aforesaid conclusion, the
appellants would be entitled to compensation under
the head of loss of dependency as under -
Rs. 6,000/- (income) + Rs.2,400/- (prospective
income) = Rs.8,400/- - Rs.2,100/- (1/4th
deduction towards personal expenses) =
Rs.6,300/- X 12 X 16 = Rs.12,09,600/- (loss of
dependency)
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
10. Following the judgment of the Apex Court in the
case of Satinder Kaur alias Satwinder Kaur(supra)
and the judgment of the Apex Court in the case of New
India Assurance Co. Ltd. Vs. Somwati and Ors.
reported in (2020) 9 SCC 644, the father, i.e., the
appellant no.1 would be entitled to filial consortium
of Rs.40,000/- and the children would be entitled to
parental compensation, i.e., Rs. 1,20,000/-
(Rs.40,000/- X 3), over and above spousal consortium
of Rs.40,000/-. As the Tribunal has already passed
an order of pay and recover, the issue of license is
properly decided by the Tribunal, which does not
require any modification. In view of the aforesaid,
the appellants-original claimants would be entitled
to compensation as under -
Loss of dependency - Rs.12,09,600/-
Transportation and Funeral
expense - Rs. 15,000/-
Loss of estate - Rs. 15,000/-
Loss of consortium - Rs. 40,000/-
Filial and parental
consortium - Rs. 1,20,000/-
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Total compensation - Rs.13,99,600/-
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As the Tribunal has awarded Rs. 10,78,000/- the
appellants would be entitled to additional
compensation of Rs. 3,21,600/- with 7% interest p.a.
on the enhanced amount from the date of the claim
petition till its realization and proportionate cost.
10. The appeal filed by the original claimants,
C/FA/4396/2019 JUDGMENT DATED: 24/11/2021
i.e., appellants of First Appeal No. 4396 of 2019 is
thus partly allowed and the appeal filed by the
insurance company being FA No. 422 of 2020 is
dismissed. The impugned judgment and award is
modified to the aforesaid extent. The insurance
company shall deposit the additional amount as
awarded by this Court along with proportionate
interest and cost with the Tribunal within a period
of eight weeks from the date of the receipt of this
judgment and order. However, there shall be no order
as to costs.
Civil Application, if any, shall also stand
disposed of.
Record and proceedings be transmitted back to
the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
