Gujarat High Court
Ranjitbhai Babarbhai Bariya vs Ratanbhai Jokhanabhai Bariya on 26 November, 2021
Bench: Niral R. Mehta
C/FA/2313/2010 ORDER DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2313 of 2010
===================================================
RANJITBHAI BABARBHAI BARIYA & 3 other(s)
Versus
RATANBHAI JOKHANABHAI BARIYA & 2 other(s)
===================================================
Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1,2,3,4
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
===================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 26/11/2021
ORAL ORDER
1) Both these appeals are being filed by the original claimants
and the Insurance Company respectively against the judgment
and award passed by the Motor Accident Claims Tribunal (Aux.),
Fast Track Court, Dahod dated 26.08.2009 in Motor Accident
Claim Petition No. 2424 of 2004 (New), Motor Accident Claim
Petition No. 1742 of 1998 (Old).
2) Since both the appeals arise from the common judgment
and award, both are taken up for hearing together and are being
disposed of by the common order.
3) First Appeal No. 2313 of 2010 is filed by the original
claimants for the enhancement of compensation, whereas, First
Appeal No. 1600 of 2010 is filed by the Insurance Company
disputing its liability to the extent of Rs. 6,30,000/- out of the
total amount of Rs.8,51,000/- awarded by the Tribunal.
C/FA/2313/2010 ORDER DATED: 26/11/2021
4) The original claim was for Rs.18,45,000/- towards
compensation under the various heads with 21% interest.
5) The Tribunal, while awarding compensation, considered
following aspects;
(I) The driver of the offending vehicle/truck bearing
registration no. GJ-7-X-6746 as sole responsible for the
accident in question, that took place on 06.11.1998. The
Tribunal has considered the FIR below Exh. 28 filed by the
driver of the Jeep i.e. the independent person, panchanama
and the evidence in the nature of the deposition of the
widow, who happened to the eye witness at exhibit 41.
(II) The Tribunal has considered the age of the deceased
as 25 years by relying upon the postmortem report at
Exh.30, which was not disputed by the Insurance Company.
(III) The Tribunal, for the purpose of assessment of the
income, has not considered the Income Tax returns because
that was not signed by the Assessee and assessed Rs.4,000/-
per month from the work of constructions and Rs.500/- per
month from the agricultural work. Thus, the Tribunal has
considered Rs.4,500/- as income of the deceased.
(IV) The Tribunal has added 1/2 amount in the aforesaid
income so as to determine the prospective income, which
ultimately came to Rs.6,750/- per month. The Tribunal has
further deducted 1/3 amount towards personal expenditure
C/FA/2313/2010 ORDER DATED: 26/11/2021
and thus, after deduction of Rs.2,250/-, Rs.4,500/- held
towards the loss of dependency per month. Considering the
age of the deceased, the Tribunal has adopted multiplier of
15. Thus, in total Rs.8,10,000/- (Rs.4,500 X 12 X 15)
awarded under the head of loss of dependency.
(V) The Tribunal has awarded an amount of Rs.25,000/-
under the head of loss of estate, Rs.10,000/- under the
head of consortium, Rs.5,000/- under the head of funeral
expenditure and Rs.1,000/- under the head of transportation
with 8% interest from the date of application till the
realization.
6) Feeling aggrieved by the aforesaid, the org. claimant as
well as Insurance Company have preferred the aforesaid first
appeals before this Court. For the purpose of deciding these first
appeals, the undisputed facts, gathered from the records, are
required to be stated in nutshell as under:
6.1 "The accident took place on 06.11.1998 because of
rash and negligent driving of the driver of the vehicle
bearing registration No. GJ-7-X-6746, wherein, the deceased
aged about 25 years died on the spot.
6.2 Neither the driver nor the owner participated in the
proceedings before the Tribunal as well as before this
Court. The age of the deceased was not disputed by the
Insurance Company.
C/FA/2313/2010 ORDER DATED: 26/11/2021
6.3 To prove the negligence of the driver of the offending
vehicle, FIR, panchnama, deposition of the widow, who
happened to be the widow below Exh. 41, considered by
the Tribunal.
7) Submissions of appellants - Org. Claimants in First Appeal
No. 2313 of 2010.
7.1 It is submitted by the learned advocate Mr.Jenil Shah
for Mr. Mehul S. Shah, learned advocate appearing for the
appellants that the Tribunal has materially erred in
considering the income of the deceased at Rs.4,500/-. It has
been contended while arriving at an amount of Rs.4,500/-,
the Tribunal has not recorded any reasons much less logical
in nature, more particularly, when the income tax returns
for the year 1995-1996 and 1996-1997 was produced and
exhibited at Exhs. 43 and 44. It is further submitted that
the accident took place in the year 1998, whereas, the
aforesaid income tax returns are immediately of a preceding
two years and a bare perusal thereof, the Tribunal could
have considered the income of deceased by aggregating at
Rs.8,750/- per month.
7.2 The learned counsel appearing for the appellants has
further submitted that looking to the age of the deceased;
multiplier should have been at 18 instead of 15 awarded by
the Tribunal. Further, it has been contended that the
amount towards consortium is highly inadequate and that
each applicant should have been awarded Rs.40,000/- under
C/FA/2313/2010 ORDER DATED: 26/11/2021
the head of loss of consortium.
7.3 The learned advocate for the appellants has also
submitted that rate of interest should have been granted at
the rate of 9% instead of 8%.
8) Submissions in First Appeal No. 1600 of 2010.
8.1 Learned advocate Mr.Dakshesh Mehta for the
Insurance Company has tried to assail the judgment and
award passed by the Tribunal contending, inter alia, mainly
that the Tribunal has grossly erred in assessing the income
of the deceased. The learned advocate for the Insurance
Company has mainly contested the appeal on the ground of
quantum. That too out of the total award of Rs.8,51,000/-,
Rs.6,30,000/- has been questioned and rest of the amount
Rs.2,21,000/- with proportionate income of cost has been
admitted.
9) Heard the learned advocates appearing for the respective
parties and also have gone through the record and
proceedings of the Tribunal. No other submissions except
stated hereinabove have been advanced by the respective
advocates.
10) From the submissions made by the learned advocates, short
question as to whether the Tribunal has awarded
inadequate compensation or excessive compensation to be
determined.
C/FA/2313/2010 ORDER DATED: 26/11/2021
11) It would be apt to take note of the law declared by the
Hon'ble Apex Court in various decisions so as to determine
just and fair compensation to be awarded in the cases of
Motor vehicle accident. More particularly, in the case of
the National Insurance Co. Ltd v. Pranay Shethi & Ors. ,
reported in 2017(16) SCC and Sarla Verma & Ors. v. Delhi
Transportation Corporation & Anr., reported in 2009 (6)
SCC 121 .
12) Taking into consideration of above referred cases and to the
facts and circumstances of the present case, it appears that
the deceased was aged 25 years at the time of accident, as
per the Income Tax Returns, the income of the deceased
for the year 1995-1996 was of Rs.1,34,238/- and in the
year 1996-1997 was Rs.1,49,375/-. Thus, in my considered
opinion, the Tribunal has committed a serious error in
computing the monthly income at Rs.4,000/- of the
deceased.
13) In my view, the Tribunal should have considered the
Income Tax Returns, which was produced at Exh: 43 and
44 so as to computing the monthly income of the deceased.
14) As can be seen from the Income Tax Returns produced at
Exh: 43 and 44 i.e. just preceding two years of the date of
the accident, thus, the Tribunal ought to have given due
weightage to those evidence so as to computing the
monthly income of the deceased. It would be just and
C/FA/2313/2010 ORDER DATED: 26/11/2021
proper to compute the monthly income of the deceased by
aggregating the amount of lost two years Income Tax
Returns Rs.1,41,806/12 = Rs.11,817/- per month divided by
4 = Rs.8,862/- per month. Now added 40% towards future
prospective income would come to Rs.12,406/- monthly
income. Rs.1,48,881/- is the income of deceased is just and
proper. Now, looking to the age of the deceased, the
Tribunal has wrongly granted multiplier of 15 years, which
should be increased to 18 years. Under the circumstances,
the appellants-org. claimants would be entitled to
Rs.26,79,868/- under the head of loss of dependency.
15) Looking to the law settled by the Hon'ble Apex Court, the
appellants No. 2, 3 and 4 being mother, wife and daughter
of the deceased would be entitled for Rs.40,000/- each
towards loss of consortium, whereas the appellant No.1
being a brother of the deceased, who appears to have been
joined as an applicant upon the death of Babar Ranchhod
Bariya as the heir of the father of deceased, who died
during the pendency of the claim petition before the
Tribunal. Thus, in my view, he would not be entitled for
the compensation under the head of loss of consortium.
The amount under the head of funeral expenditure is also
required to be enhanced from Rs.5,000/- to Rs.15,000/-.
The rate of interest at the rate of 8% granted is also
required to be modified to the rate of 9% looking to the
prevailing rate of interest at the relevant point of time.
C/FA/2313/2010 ORDER DATED: 26/11/2021
16) In view of the aforesaid discussion, the original claimant
would be entitled to following amount.
Sr. Particulars Amount
No.
1 Loss of dependency Rs.26,79,000/-
2 Loss of consortium Rs.1,20,000/-
3 Funeral expenditure Rs.15,000/-
Total Rs.28,14,000/-
4 Awarded by the Tribunal Rs.8,51,000/-
5 Additional compensation is required Rs.19,63,000/-
to be paid
Thus, the claimants are also entitled for the interest at the
rate of 7% on the enhanced compensation from the date of
application till realization.
17) For the reasons stated herein above, the judgment and
award passed by the Motor Accident Claims Tribunal
(Aux.), Fast Track Court, Dahod in Motor Accident Claim
Petition No. 2424 of 2004 (New), Motor Accident Claim
Petition No. 1742 of 1998 (Old) dated 26.08.2009 is hereby
modified to the aforesaid extent. The Insurance Company is
directed to deposit an amount of Rs.19,63,000/- with
interest within a period of eight weeks from the date of
receipt of the order of this Court, before the Tribunal
concerned. The Tribunal shall disburse the same to the
original claimant by paying account payee cheque after due
and proper verification.
C/FA/2313/2010 ORDER DATED: 26/11/2021
18) The claimants are also required to pay appropriate Court
fees for additional compensation.
19) In view of the above, First Appeal No. 2313 of 2008 is
hereby allowed and consequently First Appeal No. 1600 of
2010 is hereby dismissed with no order as to costs. Record
and Proceedings be sent to the Tribunal concerned.
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
