Gujarat High Court
Rambhaben Wd/O Hasmukhbhai @ ... vs Ahmad Saeed Kasim Shah on 30 November, 2021
Bench: R.M.Chhaya
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 911 of 2011
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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RAMBHABEN WD/O HASMUKHBHAI @ HASUBHAI KURJIBHAI PATEL & 4
other(s)
Versus
AHMAD SAEED KASIM SHAH & 2 other(s)
==========================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED(64) 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 : 30/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 11.12.2008 passed by the
Motor Accident Claims Tribunal (Aux), Narmada at
Rajpipla, in MACP No. 795/06, the original claimants
have preferred this appeal under Section 173 of the
Motor Vehicles Act, 19688 (hereinafter referred to as
"the Act").
2. Heard Mr. Mohsin Hakim, learned advocate for the
appellants and Mr. Vibhuti Nanavati, learned advocate
for respondent no.3. Though served, no one appears
for respondents no.1 and 2. We have also perused the
original record and proceedings.
3. Following facts emerge from the record of the
appeal -
3.1 On 26.08.2003, deceased Hasmukhbhai @ Hasubhai
was going on his bullet motorcycle bearing
registration no. MZX-4454 towards Ankleshwar from
Surat. At around 9.00 hrs. on National Highway no.8
between Dhamroad Chokdi and Chacha Hotel, one Indica
car bearing registration no.GJP-CA-4488, which was
behind the bullet motorcycle, driven in rash and
negligent manner and in excessive speed by opponent
no.1, hit the motorcycle driven by the deceased from
behind, because of which the deceased and the pillion
rider were flung on the road. The deceased sustained
serious injuries and died on the spot. FIR came to
be lodged with the jurisdictional police station.
The original claimants preferred claim petition under
Section 166 of the Act and claimed compensation of
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
Rs. 25,00,000/-.
3.2 The Tribunal upon consideration of oral and
documentary evidences, such as deposition of the one
of the claimant Ms. Rambhaben at exhibit 29, FIR at
exhibit 30, panchmana at exhibit 31, inquest
panchnama at exhibit 32, P.M. note at exhibit 33,
charge-sheet at exhibit 34 partly allowed the claim
petition and awarded total compensation of Rs.
4,25,000/- along with 9% interest thereon from the
date of filing of the petition. Being aggrieved by
the same, the appellants-original claimants have
preferred the present appeal.
4. Mr. Hakim, learned counsel appearing for the
appellants contended that the Tribunal has failed to
consider the evidence on record as regards income.
Mr. Hakim, learned counsel for the appellants relied
upon documentary evidence exhibits 35 to 39, 64 to
66, which are village form nos. 7/12 of the
agricultural land possessed by the deceased situated
at Narmada District as well as Rajkot District.
Mr.Hakim contended that the claimants also brought on
record the sugarcane sold to Shri Narmada Khand
Udhyog Sahakari Mandli Ltd. to the tune of
15,64,426/- between 1999-2003 being exhibit 56. Mr.
Hakim relied upon oral deposition of Kamleshbhai
Jivrajbhai Bhuva at exhibit 70 and contended that
even the said testimony has not been properly
examined by the Tribunal. Relying upon the
deposition of Motibhai Chhitabhai Macchi at exhibit
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
67, it was contended by Mr. Hakim that even the bills
were pressed into service being exhibits 68 and 69,
but the same is totally ignored by the Tribunal.
Again referring to village form 7/12, it was
contended by Mr. Hakim that though the land was owned
by the father of the deceased, the same was being
cultivated by deceased himself as his father was old
and feeble at the age of 72 years. Mr. Hakim
contended that even though plethora of evidence was
adduced before the Tribunal, the Tribunal has wrongly
assessed income of the deceased at Rs.5,000/-. Mr.
Hakim contended that even if the supervisory income
is considered, the same should be much more than what
has been determined by the Tribunal. Mr. Hakim
further contended that the Tribunal has also
committed an error in deducting 1/3rd towards
personal expenses as dependents of the deceased were
5 in number and according to Mr. Hakim, the deduction
towards personal expenses should be 1/4th. Mr. Hakim
contended that the Tribunal has also committed an
error in not granting any prospective income. It was
also contended that the age of the deceased was 44
years on the date of the accident and therefore, the
appropriate multiplier would be 14 and not 10 as
wrongly granted by the Tribunal. On the aforesaid
grounds, it was contended by Mr. Hakim that the
appeal deserves to be allowed and award deserves to
be enhanced.
5. Per contra, Mr. Vibhuti Nanavati, learned
advocate has opposed this appeal. Mr. Nanavati
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
contended that the agricultural lands which were
reflected in various village form nos. 7/12 were not
of the ownership of the deceased, but were of the
ownership of the father and the same has remained
with the family even after the accident of the
deceased. Mr. Nanavati contended that the other
conclusions arrived at by the Tribunal does not
require any interference and the appeal being
meritless, deserve to be dismissed.
6. Upon re-appreciation of the evidence on record,
it clearly appears that the father of the deceased
who was aged 72 years had vast chunk of agricultural
land in Narmada District as well as Rajkot District.
Naturally, when he has a son aged 44 years, it was
the deceased who was actually cultivating the land.
The said fact is evident from the oral evidence of
the appellant. Upon re-appreciation of the evidence
on income, this Court is of the opinion that the
Tribunal has assessed income on a lower side and upon
considering the evidence as a whole, we deem it fit
to determine the income of the deceased at Rs.8,500/-
p.m. in form of supervisory income as the age of the
deceased was 44 years. As the deceased was self
employed, the appellants-original claimants would be
entitled to increase in income by way of prospective
income to the tune of 25%. Mr. Hakim, learned
counsel appearing for the appellants is correct in
contending that the deduction has to be 1/4th towards
personal expenses, as the dependents of the deceased
were 5 in number. Following the judgment of the Apex
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
Court in the case of Sarla Verma vs. Delhi Road
Transport Corporation reported in (2009) 6 SCC 121
and National Insurance Company Ltd. Vs. Pranay Sethi,
reported in 2017 (16) SCC 680, therefore, the
deduction towards personal expenses would be 1/4th in
the case on hand and the appropriate multiplier would
be 14 and not 10 as granted by the Tribunal. Over
and above the same, following the judgment in the
case of Magma General Insurance Company Limited vs.
Nanuram alias Chuhru Ram and Ors. reported in (2018)
18 SCC 130 and Satinder Kaur alias Satwinder Kaur and
Ors. reported in AIR 2020 SC 3076, the appellants-
original claimants would be entitled to filial
compensation as well.
7. Having come to the aforesaid conclusion, the
appellants would be entitled to compensation as
under-
Rs.8,500/- (income) + Rs.2,125/- (25%
prospective income) = Rs.10,625/- - Rs.2,656/-
p.m. (1/4th towards personal expenses) =
Rs.7,969/- X 12 X 14 (multiplier) =
Rs.13,38,792/- (Dependency Loss)
Rs.13,38,792/- - Towards dependency loss
Rs. 70,000/- - Loss of consortium, loss of
estate and funeral expenses
Rs. 1,20,000/- - Filial consortium
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Rs.15,28,792/- Total compensation
--------------
8. Thus, the appellants-original claimants would be
entitled to total compensation of Rs.15,28,792/-.
C/FA/911/2011 JUDGMENT DATED: 30/11/2021
As the Tribunal has awarded Rs.4,25,000/-, the
appellants-original claimants would be entitled to an
additional compensation of 11,03,792/- with interest
at the rate of 7% p.a. on the enhanced amount from
the date of filing of the claim petition till its
realisation. The impugned judgment and award stands
modified to the aforesaid extent. The insurance
company shall deposit the additional amount along
with interest as provided in this judgment within a
period of eight weeks from the date of the receipt of
this judgmemnt.
11. The appeal is thus partly allowed. However,
there shall be no order as to costs in this appeal.
Registry is directed to remit the record and
proceedings back to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
