Gujarat High Court
Fatubibi Wd/O Majidbhai Manubhai ... vs J V Desai on 26 November, 2021
Bench: Niral R. Mehta
C/FA/1412/2009 ORDER DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1412 of 2009
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FATUBIBI WD/O MAJIDBHAI MANUBHAI RASHIDWALA & 4
other(s)
Versus
J V DESAI & 3 other(s)
===================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 26/11/2021
ORAL ORDER
1. Being aggrieved and dissatisfied with the judgment and
award dated 29.07.2008 passed in Motor Accident Claim Petition
No. 761 of 1995 by the Motor Accident Claims Tribunal (Aux),
Fast Track Court, District Panchmahal at Godhara, the appellants-
original claimants have preferred this first appeal under Section
173 of the Motor Vehicles Act, 1988 for the enhancement of the
compensation.
2. The original claim of the appellants-original claimants was
Rs.8,00,000/- as against that Tribunal as awarded Rs.2,87,000/-
under various heads as below.
C/FA/1412/2009 ORDER DATED: 26/11/2021
Sr. No. Particulars Amount
1. Loss of dependency Rs.2,52,000/-
2. Loss of Estate Rs.20,000/-
3. Loss of Consortium Rs.10,000/-
4. Transportation and funeral Rs.5,000/-
expenditure
5. Total Rs.2,87,000/-
3. It is the case of the appellants-original claimants that the
deceased Ayub Daudbhai Piplodwala, on 20.02.1995, was driving
a truck bearing registration No.GJ-7-U-6780 from Godhara to
Dahod for unloading the same. While, passing through the
village Rampur, the offending vehicle being "ST Bus" bearing
registered No.GJ-01-Z-3860 came in rash and negligent manner,
dashed with the truck. Pursuant to which, deceased Ayubhai
Daudbhai Piplodwala had received serious injuries, and
ultimately, succumbed to the injuries. Thus, the appellants-
original claimants have claimed Rs.8,00,000/- against the
respondents herein under various heads.
4. Upon the service of notice, the ST Corporation as well as
Insurance Company of the truck No. GJ-7-U-6780 have appeared
and filed their written statement. It is the say of the ST
Corporation that the accident occurred because of the negligence
of the driver of the truck bearing registered No. GJ-07-U-6780;
whereas as per the Insurance Company that the accident took
place because of rash and negligent driving of the driver of the
ST bus bearing registration No. GJ-1-Z-3860. The Tribunal, after
having appreciated the evidence, came to the conclusion that the
driver of the offending vehicle was negligent for the accident in
C/FA/1412/2009 ORDER DATED: 26/11/2021
question. The Tribunal considered the monthly income of the
deceased at Rs.1,500/- per month, in absence of any income
proof produced on record. Thus, the yearly income of
Rs.18,000/- came to be calculated and thereafter by adding 15%
for the future rise, the final amount was calculated at
Rs.27,000/- p.a. (Rs.18,000X15). The Tribunal has considered the
age of the deceased at 35 years, and thereby, the multiplier of
14 years came to be awarded. Therefore, while calculating loss
of dependency, Rs.27,000X14=3,78,000/- was considered, and out
of it, 1/3 amount came to be deducted for personal expenses.
Thus, the final amount under the head of loss of dependency
came to be assessed at Rs.2,52,000/- (Rs.27,000X14 % 1/3). The
Tribunal has awarded a sum of Rs.10,000/- under the head of
consortium to wife of the deceased, Rs. 20,000/- under the head
of loss of estate and Rs.5,000/- awarded towards funeral
expenditure. Thus, in all Rs.2,87,000/- came to be awarded at
the rate of 9% from the date of application till the realization.
5. The Tribunal has further directed that 50% of the awarded
amount is recoverable from respondents No. 1 and 2 jointly and
severely and rest 50% of the awarded amount is recoverable
from the respondents No. 3 and 4 jointly and severely. Thus,
being aggrieved by the aforesaid, the present appellants-original
claimants have filed this appeal for enhancing of the
compensation.
C/FA/1412/2009 ORDER DATED: 26/11/2021
6. Mr. M.T.M.Hakim, the learned advocate appearing for the
appellants-original claimants has submitted that the Tribunal has
committed serious error in awarding just and fair compensation.
He has further submitted that the Tribunal has not awarded just
and fair compensation to the heirs of the deceased and that has
resulted into miscarriage of justice.
7. Mr. Hakim, the learned advocate for the appellants has
lastly urged to this Court to allow the appeal by enhancing the
amount of compensation in view of the ratio laid down by the
Hon'ble Apex Court in the case of Sarla Verma & Ors vs.Delhi
Transportation & Anr, reported in (2009) 6 Supreme Court Cases
121, the National Insurance Company Ltd. Vs Pranay Shethi,
reported in (2017)16 Supreme Court Cases 680, Magma General
Insurance v. Satindra Kaur, reported in (2018) 18 Supreme Court
Cases 130 as well as Chandraram and Another vs. Mukeshkumar
and Ors in Civil Application No. 6152 of 2021.
8. Learned advocate for the appellants-original claimants has
submitted that the Tribunal has committed serious error in
considering only Rs.1,500/- in absence of any income proof
under the head of future loss of income. It was further submitted
that the Tribunal, should have, at least, considered the
scheduled of minimum wages prevalent at the time of accident
so as to arrived at just a conclusion.
C/FA/1412/2009 ORDER DATED: 26/11/2021
9. Per contra, Ms. Kiran Pandey, the learned advocate
appearing for the respondent No.2 has vehemently opposed the
appeal by contending that the award passed by the Tribunal is
just and proper, and ultimately, she has requested to dismiss the
appeal. However, neither she could produce any authority so as
to substantiate her contention nor she could dispute with the
authority produced by the learned advocate for the appellants.
10. Heard Mr.M.T.M.Hakim, the learned advocate appearing for
the appellants-original claimants as well as Ms.Kiran Pandey, the
learned advocate appearing for the respondent No.2 and
Mr.Majumdar, the learned advocate appearing for the respondent
No.4. The respondent Nos. 1 and 3 though served, have chosen
not to appear before this Court.
11. Having considered the submissions of the respective parties
and having gone through the records and proceedings, in my
view, the Tribunal has committed the error, while calculating
the compensation under the head of loss of dependency, more
particularly, assessing the income of the deceased. It is true that
the appellants-original claimants could not produce any evidence
and/or certificate so as to justify their claims. Therefore, it was
the duty of the Tribunal to adopt the reasonable yardstick for
some guessing work of the income of the deceased so as to
award just and fair compensation. The basic yardstick, if not
conclusive, would be, of referring to a schedule of minimum
wages prevalent at the time of accident.
C/FA/1412/2009 ORDER DATED: 26/11/2021
12. I have perused the schedule of minimum wages prevalent at
the time of accident and found that minimum wages, per month,
was of Rs.3,000/-. Thus, in my view, it would be just and
proper to assess the monthly income of the deceased at
Rs.3,000/- per month, adding 40% in the aforesaid income so as
to consider prospective monthly income would come to
Rs.4,200/- (Rs.3,000+Rs.1,200). Considering the numbers of
claimants, the ¼ amount deserves to be deducted towards
personal expenditure of the deceased would come to Rs.1,050/-.
Thus the dependency benefit per month can be calculated at
Rs.3,150/- (Rs.4200-1050/-). Now, to consider annually
dependency Rs.3150/-X12, which would come to 37,800/- p.a.
13. Looking to the age, the multiplier as suggested by the
Hon'ble Apex Court is 16 years. Thus, under the head of loss of
dependency Rs.6,04,800/- (Rs.37,500/- X 16) is just and proper
compensation. So far as compensation under the head of loss of
consortium is concerned, the Tribunal had awarded only sum of
Rs.10,000/-, that too, only to a wife of the deceased. Further, as
per the recent decision of the Hon'ble Apex Court, the scope and
meaning of consortium is now extended and classified as
parental consortium, spouse consortium and filial consortium.
Therefore, all appellants are entitled to Rs.40,000/- each under
the head of consortium. Thus, Rs.2,00,000/- (40,000X5) is hereby
awarded under the head of loss of consortium. So far as
compensation under the head of transportation and funeral
expenditure are concerned, Rs.5,000/- awarded by the Tribunal,
C/FA/1412/2009 ORDER DATED: 26/11/2021
is also on a lower side, which deserves to be increased to
Rs.15,000/-.
14. In view of the aforesaid discussions, the judgment and
award dated judgment and award dated 29.07.2008 passed in
Motor Accident Claim Petition No. 761 of 1995 by the Motor
Accident Claims Tribunal (Aux), Fast Track Court, District
Panchmahal @ Godhara, is modified to the extent as under:-
Sr. No. Particulars Amount
1. Loss of dependency Rs.6,04,800/-
2. Loss of Consortium Rs.2,00,000/-
3. Transportation and funeral Rs.15,000/-
expenditure
4. Total Rs.8,19,800/-
Awarded by the Tribunal Rs.2,87,000/-
Amount Rs.5,32,800/-
Thus, the appellants-original claimants are entitled to additional
compensation of Rs.5,32,800/- at the rate of 6 % interest instead
of 9% by the Tribunal from the date of the application till the
realization before the Tribunal concerned.
15. In view of the aforesaid facts and circumstances, the first
appeal is allowed and thereby the Insurance Company is directed
to deposit an additional amount of Rs.5,32,800/- with interest
within the period of eight weeks from the date of receipt of the
order of this Court before the Tribunal concerned and the
Tribunal shall disburse the same to the original claimant by
paying account payee cheque after due and proper verification.
C/FA/1412/2009 ORDER DATED: 26/11/2021
16. The claimants are also required to pay appropriate Court
fees for additional compensation. Record and Proceedings be sent
to the Tribunal concerned.
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
