Amitbhai Panubhai Patel ... vs Pareshbhai @ Punambhai Kantilal ...
2021 Latest Caselaw 16070 Guj

     C/FA/955/2021                              JUDGMENT DATED: 12/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 955 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.G.URAIZEE                 Sd/-
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1    Whether Reporters of Local Papers may be allowed                   NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                            NO

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 ?

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          AMITBHAI PANUBHAI PATEL (DELETED) & 2 other(s)
                             Versus
        PARESHBHAI @ PUNAMBHAI KANTILAL PATEL & 2 other(s)
==========================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1
NOTICE UNSERVED(8) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                           Date : 12/10/2021
                           ORAL JUDGMENT

1. This appeal has been preferred by the appellant- original claimants under Section 173 of the Motor Vehicle Act, 1988 being unhappy by the quantum of compensation awarded under judgment and award dated 2.3.2020, passed by the the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in Motor Accident Claim Petition No.442

C/FA/955/2021 JUDGMENT DATED: 12/10/2021

of 2018, wherein the learned Tribunal has awarded the compensation of Rs.7.54,300/-.

2. In response to the notice, Mr.Ratin Raval, learned advocate has entered his appearance on behalf of respondent No.3-Insurance Company. Respondent Nos.1 and 2-driver and owner of the offending vehicle have not entered their appearance, despite service of notice. With the consent of of learned advocate for the appellant and learned advocate for the respondent No.3-Insurance Company, the appeal is taken up for final disposal, as the issue involved in the appeal is of quantum of compensation only. The presence of respondent Nos.1 and 2 is not necessary for the purpose of disposal of this appeal.

3. Mr.Bhalodi, learned advocate for the appellants vehemently submits that the deceased was earning Rs.10,000/- per month by doing job. However, the claimants could not produce any evidence to buttress the income of the deceased. The Tribunal has, therefore, considered Rs.5,000- per month on the basis of minimum wages for unskilled labourer, which was prevailing in the year 2017. He submits that the Tribunal has committed an error in considering Rs.5,000/- per month, as minimum wages for the year 2017. Accordingly to his submission, minimum wages prevailing at the time of accident for the unskilled labourer was Rs.7,8000/-. He, therefore, urges

C/FA/955/2021 JUDGMENT DATED: 12/10/2021

that the income of the deceased may be assessed at the rate of Rs.7,800/- and consequently dependency may be decided on the basis of this figure. He, therefore, urges that the appeal may be allowed accordingly.

4. Mr.Rathin Raval, learned advocate for the Insurance Company stoutly submits that considering the overall facts that the claimants have not produced any cogent evidence to prove the income of the deceased. Therefore, the Tribunal has not committed any error in assessing Rs.5,000/- as the monthly income of the deceased. He, therefore, urges that the impugned award does not warrant interference. He, however, submits that if this Court comes to the conclusion that enhancement in the compensation is called for, in that event, interest on the additional compensation may be awarded @ 7.5% instead of @9% as awarded by the Tribunal.

5. The sole issue involved in the present appeal is whether the Tribunal has committed any error in assessing Rs.5,000/- per month as the income of the deceased on the basis of minimum wages for unskilled labourer prevailing in the year 2017. As per the submissions of Mr.Bhalodi, learned advocate, the Tribunal ought to have assessed Rs.7,800/- as monthly income of the deceased as per minimum wages for unskilled labourer prevailing in the year 2017. Mr.Raval, learned advocate for the Insurance Company given comfort the fact that at the

C/FA/955/2021 JUDGMENT DATED: 12/10/2021

time of accident i.e. in the year 2017 as per prevailing minimum wages for unskilled labourer, the deceased ought to have been paid Rs.7,800/- monthly instead of Rs.5,000/-.

6. in view of the above, I am of the view that the Tribunal has committed an error in assessing the monthly income of the deceased Rs.5,000/- rather the same ought to have been assessed Rs.7,800/- per month as the income of the deceased on the basis of minimum wages of unskilled labourer prevailing in the year 2017. Accordingly, the compensation determined by the Tribunal will have to be recalculated as under:

Compensation As Per Award Recalculation under Challenged Future Loss Actual Income Rs.5,000/- Rs.7,800/- Prospective Income Rs.6,250/- (25%) Rs.9750 (25%) Deduction of amount spent Rs.2,083/- (1/3) Rs.3,250/-

     by the deceased on himself                                  (1/3)
     Future Loss Per Annum           Rs.4,167x12=                Rs.6,500x12
                                     Rs.50,000/-                 =78,000/-

     Future Loss                     Rs.6,50,000/-               Rs.10,14,000/-
     Medical Bills                   Rs.34,300/-                 Rs.34,300/-
     Conventional Amount             Rs.70,000/-                 Rs.70,000/-
     Total                           Rs.7,54,300/-               Rs.11,18,300/-

7. In view of the above, the Tribunal ought to have

C/FA/955/2021 JUDGMENT DATED: 12/10/2021

awarded Rs.11,18,300/- as compensation to the appellants-complainants instead of Rs.7,54,300/-.

Therefore, the claimants are entitled to get Rs.3,64,000/- as additional compensation.

8. So far as the interest on the additional compensation is concerned, Mr.Bhalodi, learned advocate submits that interest @7.5% may be awarded on the additional compensation as submitted by Mr.Raval, learned advocate for the Insurance Company.

9. For the forgoing reasons, the Appeal succeeds in part and the judgment and award dated 2.3.2020, passed by the the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in Motor Accident Claim Petition No.442 of 2018 is hereby modified and the appellants-claimants are held entitled to get Rs.11,18,300/- in place of Rs.7,54,300/- as compensation. Accordingly the claimants are entitled to get Rs.3,64,000/- as additional compensation with interest @7.5%. The respondent-Insurance Company is directed to deposit the additional amount along with interest in the Tribunal within six weeks of the receipt of the order of this Court.

Sd/-

(A.G.URAIZEE, J) ALI