Gujarat High Court
Dhuliben Manabhai Vankar vs Abdul Gafar Aaiyubbhai Pinjara ... on 26 November, 2021
Bench: Hemant M. Prachchhak
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1239 of 2010
FOR APPROVAL AND SIGNATURE: Sd-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
DHULIBEN MANABHAI VANKAR & 1 other(s)
Versus
ABDUL GAFAR AAIYUBBHAI PINJARA (DRIVER) & 2 other(s)
================================================================
Appearance:
MR PARTHIV A BHATT(5331) for the Appellant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
================================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 26/11/2021
ORAL JUDGMENT
1. This is an appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter be referred to as "the Act") by
appellants - claimants calling in question the correctness and
legality of the judgment and award passed in M.A.C.P. No.6335
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
of 2004 (Old M.A.C.P. No.2002 of 2003) by the Motor Accident
Claims Tribunal at Dahod (hereinafter be referred to as "the
Tribunal") whereunder claim petition filed has been allowed in
part and a total compensation of Rs.6,60,000/- with interest @
7.5% per annum has been awarded as against claim of
Rs.12,00,000/-.
2. Facts in nutshell which has led to filing of this appeal are as
under.
2.1 The husband of the first claimant and father of second
claimant, namely, Manabhai Bhanabhai Vankar was serving as a
principal in the primary school was proceeded towards Village :
Kali Dungri for his official meeting on 19.07.2003 and was
waiting for vehicle and, therefore, he boarded one rickshaw
bearing Registration No.GJ-17-U-3649 from Village: Bhuval to
Village : Kali Dungri and when reached near bridge of Ujjal river,
the driver of the offending vehicle lost control over the steering,
since, he was driving in rushed and negligent manner dashed
with the stone lying on right side of the road and due to that, the
deceased Manabhai Bhanabhai Vankar had fallen down from the
rickshaw and sustained bodily injury. When the deceased
Manabhai Vankar was taken to the hospital, he died on the way.
Hence, a claim petition being M.A.C.P. No.6335 of 2004 (old
M.A.C.P. No.2002 of 2003) came to be filed by the wife and son
of the deceased seeking compensation for the death of Manabhai
Bhanabhai Vankar. The Tribunal after evaluating the pleadings
and oral and documentary evidence tendered by the parties as
noticed hereinabove awarded total compensation of
Rs.6,60,000/- under two heads i.e. (1) Rs.6,38,000/- towards
future loss of income and (2) Rs.22,000/- towards funeral,
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
transporation and pain, shock and suffering in all Rs.6,60,000/-
with running interest @ 7.5% p.a.
4. It came to be held by the Tribunal that said amount was
ordered to be awarded to the dependents. Not being satisfied
with the quantum of compensation awarded, this appeal has
been filed.
5. I have heard Mr.Parthiv Bhatt, learned advocate appearing
for the appellants - claimants and Mr.Palak Thakkar, learned
advocate appearing for the insurer - respondent No.3. The
respondent Nos.1 and 2 are served and unrepresented.
6. It is the contention of the learned advocate appearing for
the appellants that the Tribunal has committed a serious error in
awarding abysmally very less compensation without considering
the material evidence available on record and in particular he
would draw the attention of this Court to the documentary
evidence and contend that income of the deceased, as per the
record, has not been considered by the learned Tribunal as the
deceased was serving as principal in the Government Primary
School and his salary certificate was produced on record. He
would submit that even the future prospective income was also
not considered by the learned Tribunal, nor proper multiplier was
applied while considering the amount of compensation. He has
further submitted that the learned Tribunal has erred in not
considering the fact that the deceased was having agricultural
land and the revenue record to that effect has been produced on
record by the appellants vide Exhibit 35 to 39 wherein the name
of the deceased - Manabhai Bhanabhai Vankar was shown along
with others but that was not considered by the learned Tribunal
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
and completely ignored and, therefore, the learned Tribunal has
committed serious error of facts and law in not considering the
agricultural income of the deceased. He has also submitted that
the Tribunal has not awarded just and reasonable compensation.
Hence, he prays for enhancement of compensation under all
heads.
7. As against that, Mr.Palak Thakkar, learned advocate
appearing for the insurer - respondent No.3 herein has
supported the impugned judgment and award passed by the
Tribunal and in support, he has submitted that the Tribunal has
rightly considered the income at Rs.9000/- per month of the
deceased. He has fairly conceded that Tribunal has not awarded
the compensation for his future loss of income, consortium
funeral expenses and loss of estate.
8. Having heard learned advocates appearing for the
respective parties and on perusal of the record and proceedings
of the case, I am of the considered view that following points
arise for consideration:
(1) Whether the compensation awarded by the Tribunal is
just and reasonable or it requires to be modified ? If
so, to what extent ?
(2) What order?
9. The aspects relating to the accident, issuance of policy to
the offending vehicle and same being in force or vogue as on the
date of accident are all aspects which are not in dispute and as
such they are not delved upon by me in the present appeal as it
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
would be repetition of facts.
POINT NO.1 :-
10. The records on hand would clearly indicate that accident
had occurred on 19.07.2003 at about 7.00 p.m. The chargesheet
has been filed by the jurisdictional police against the driver of
the offending vehicle i.e. rickshaw bearing Registration No.GJ-17-
U-3649. This is not disputed by the insurer. In fact, the insurer
did not examine the driver of the offending vehicle. The contents
of the FIR and the panchnama are not challenged by the insurer.
These aspects though noticed by the Tribunal has awarded the
compensation which is on lower side.
11. The Tribunal while determining the compensation payable
to the dependents, insofar as loss of dependency is concerned,
the Tribunal has construed the income of the deceased at
Rs.9000/- per month, though overwhelming evidence which was
available on record establish that deceased was an income tax
assessee, owning agricultural land and generating income from
the agricultural activities carried on in the said land and yet it
holds that he was getting income of Rs.9,000/- per month and
not considered the agricultural income at all or to reject the
contention of the claimants for considering the income of the
deceased as prayed for in the claim petition i.e. Rs.11,278/- per
month considering only Rs.9,000/- as monthly income. The
Tribunal has committed serious error while considering these
aspects. This would clearly indicate that the Tribunal had in fact
arrived at a conclusion that there is future loss of income of
Rs.6,000/- per months which comes to Rs.72,000/- per annum
and multiplier was applied 9, then, amount of Rs.6,38,000/-
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
towards future loss of income and Rs.22,000/- towards
transporation, funeral expenses, pain, shock and suffering and
other heads in all Rs.6,60,000/-. If the same is taken into
consideration 30% towards future prospective income,
considering the number of dependents being two and applying
the dicta laid down by the Apex Court in Sarla Verma and
others vs. Delhi Transport Corporation and another
[(2009) 6 SCC 121], 1/3rd is to be deducted from total income
and when so deducted the total loss of income would be
Rs.11,700/- per month and the multiplier which is adopted being
13 taking into consideration the age of deceased as 48 years
being just and proper, compensation is accordingly redetermined
as under :
Future Loss of Income as considered and Rs. 6,38,000/-
awarded
Transporation, funeral expenses, pain, shock Rs. 22,000/-
and suffering and other heads as awarded
Rs.9,000/- considered and as per the decision Rs. 11,700/-
of the Hon'ble Supreme Court in the case of
Pranay Shethi (supra) 30% are required to be
added. (Rs.9000 + 27000)
1/3 expenses deducted as personal expenses Rs. 7,800/-
(Rs.11,700/- X 1/3 = Rs.3900/-)
Multiplier (Rs.7800 x 12 x 13) Rs.12,16,800/-
Different heads like consortium, funeral, loss of Rs. 70,000/-
estate (Rs.40000/- + Rs.15000/- + Rs.15000)
Total amount Rs.12,86,800/-
Compensation Rs. 6,60,000/-
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
Amount (Rs.12,86,800/- - Rs.6,60,000/-) Rs. 6,26,800/-
Accordingly, a sum of Rs.12,86,800/- requires to be
awarded towards loss of dependency which is just and
reasonable compensation and same is awarded in substitution
awarded by the to Tribunal. The compensation awarded under
other heads is also required to be calculated as per the table
produced hereinabove. Accordingly, point No.1 is answered in
affirmative.
POINT NO. 2 :-
12. For reasons aforestated, I pass following order.
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and award dated 19.06.2009
passed by the Motor Accident Claims Tribunal (Aux.),
Dahod in M.A.C.P. No.6335 of 2004 (Old M.A.C.P. No.2002
of 2003) is hereby modified and in substitution to what
has been awarded by the Tribunal a sum of Rs.6,68,000/-
with interest at the rate of 7.5% per annum is awarded
which shall be from the date of petition till date of
payment or deposit whichever is earlier.
(iii) The apportionment and order for deposit as made by the
Tribunal in paragraph - 16 of the operative portion of the
order shall hold good for the substituted award. The
C/FA/1239/2010 JUDGMENT DATED: 26/11/2021
insurer is directed to deposit the compensation amount
expeditiously at any rate within an outer limit of four
weeks from the date of receipt of certified copy of this
order.
Record and proceedings be sent back to the concerned
Court, forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
