Gujarat High Court

Trikambhai Dhayabhai Vadher vs M/S Abhishek Industries Service ... on 25 October, 2021

Bench: Niral R. Mehta

      C/FA/2292/2010                               JUDGMENT DATED: 25/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2292 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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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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              TRIKAMBHAI DHAYABHAI VADHER & 3 other(s)
                               Versus
         M/S ABHISHEK INDUSTRIES SERVICE PVT LTD & 2 other(s)
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Appearance:
MR AMIT C NANAVATI(1384) for the Appellant(s) No. 1,2,3,4
MR SHASHIKANT S GADE(1706) 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 : 25/10/2021

                              ORAL JUDGMENT

1. This is an appeal under Section 173 of the Motor Vehicles Act for

enhancement of the claim at the instance of appellants (original

claimants).

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

2. The original claim of the claimants was Rs.5 lakhs under the

various heads. The Tribunal vide impugned judgment and award dated

29.9.2009 has awarded Rs.2,09,000/- as under :

             Sr.        Amount                       Particulars
             No.

              1.      Rs.1,92,000/-     Future Loss of Income

              2.       Rs.2,000/-       Cremation and Transportation

              3.      Rs.15,000/-       Consortium

              Total Rs.2,09,000/-

3. Being aggrieved by the aforesaid inadequate compensation

awarded by the Tribunal, the present appeal has been filed by the

claimants, seeking, inter-alia, enhancement of compensation.

4. On 17.5.2004, a fateful day, accident took place. The deceased was

driving Rickshaw No.GJ-11-W-7196 from Una to village Alvi. Near

Village Modh, the truck bearing Registration No.GJ-11-U-9417 was

coming with excessive speed and in rash manner, dashed with the

rickshaw. The deceased along with other 3 persons i.e. (I) Haribhai

Jesingbhai (ii) Vajubhai Bholabhai Dodiya and (iii) Ashwinbhai

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

Bachubhai all have died on the spot. Thus, claim petition being MAC

Petition No.129 of 2004 came to be filed by the appellants herein,

wherein the MAC Tribunal (Aux.) , Fast Track Court No.2, Veraval camp

at Una, vide judgment and award dated 29.9.2009 awarded Rs.2,09,000/-

with 9% interest under the various heads.

5. It was the case before the Tribunal that the driver of the truck

involved in the accident was solely negligent. It was further stated by the

claimants that the age of the deceased was 26 years at the time of accident

and was earning Rs.2500/- per month. To prove that the driver of the

motor-truck involved in the accident, the original claimants heavily relied

upon the panchnama of the place of accident below Exh.71, FIR at

Exh.70 given by Jesingbhai Ranabhai Dodiya.

6. Though served, nobody appeared on behalf of the driver of the

truck involved in the accident. The claim petition was opposed by the

original respondent No.2 - Insurance Co. It was further specifically

denied that the driver of the truck was involved in the accident. The

Insurance Co. has also disputed the income of the deceased at Rs.2500/-

per month.

7. That on appreciation of the evidence, the Tribunal has held that the

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

driver of the truck bearing Registration No.GJ-11-W-7417 was solely

responsible for the accident in question. Further, the Tribunal has

assessed Rs.1500/- per month in absence of any cogent evidence

produced on record. Thus, from the aforesaid income of Rs.1500/- per

month, the Tribunal has deducted Rs.500/- for personal expenses and held

at Rs.1000/- net income per month as the income of the deceased. The

Tribunal has also awarded multiplier of 16 considering the age of the

deceased. Therefore, Rs.1,92,000/- was awarded under the head of Future

Loss of Income, Rs.2000/- towards cremation and transportation and

Rs.15,000/- towards consortium, that comes to total Rs.2,09,000/- with

9% interest from the date of application till realization came to be

awarded.

8. Being aggrieved by the aforesaid judgment and award passed by

the Tribunal, the appellants have preferred the present First Appeal for

enhancement of compensation.

9. Mr.Amit Nanavati, learned counsel appearing for the appellants -

claimants, has vehemently submitted that the Tribunal has materially

erred in assessing the income of the deceased at Rs.1500/- per month. It

was further submitted that the Tribunal should have considered at least

the schedule of daily wages for the purpose of arriving at a just amount of

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

income in absence of any income proof. Learned counsel has also

submitted that the Tribunal has also erred in calculating the amount under

the head of Future Loss of Income by ignoring the prospect of rise in the

income. Mr.Nanavati has further submitted that the Tribunal has also

erred in deducting personal expenditure looking to the size of the

members of the claimants as dependent. Learned counsel has also

submitted that the Tribunal has materially erred in adopting the multiplier

at 16. Learned counsel also urged to this Court for enhancement of

compensation under the head of consortium and further submitted to

grant Rs.40,000/- to the each claimant under the head of loss of

consortium.

10. To substantiate the aforesaid submissions, Mr.Amit Nanavati,

learned counsel, has heavily relied upon the decisions of the Supreme

Court in the case of Sarla Verma vs. Delhi Transportation

Corporation, reported in 2009 (6) SCC 121, Magma General

Insurance Co. Ltd. v. Nanu Ram & Others, reported in 2018 ACJ

2782 and National Insurance Co. Ltd. v. Pranay Shethy and Others,

reported in AIR 2017 SC 5157,

11. Per contra, Mr.Shashikant Gade, learned counsel for the Insurance

Co., has submitted that the judgment and award passed by the Tribunal is

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

just and proper and the income assessed by the Tribunal is also fairly

adequate. However, the learned counsel for the Insurance Co. could not

dispute and distinguish the ratio laid down by the Supreme Court in the

aforesaid judgments relied upon by the appellants - original claimants.

12. I have heard the learned advocates for the respective parties and

gone through the materials produced on record and also gone through the

R & P of the Tribunal. No other submissions and the contentions have

been raised by the learned advocates for the respective parties.

13. It is pertinent to mention that the present appeal has been filed by

the claimants for the enhancement of the compensation, whereas the

Insurance Co. has accepted the judgment and award passed by the

Tribunal and thereby, not preferred any appeal. Thus, in view of the

aforesaid, in my considered opinion, the only aspect is with regard to

scope of enhancement of compensation only. Thus, first of all, the

compensation under the head of prospective income loss has to be

considered. To arrive at a just conclusion with regard to the compensation

under the said head, income of the deceased is required to be assessed. In

my view, the Tribunal ought to have considered the schedule of daily

wages prevailing at the time of accident, in absence of any evidence

towards the income. Upon perusal of the schedule of minimum wages in

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

2004, it appears that minimum wages at the relevant point of time was

Rs.2300/- per month. Thus, the monthly income of the deceased can

safely be arrived at Rs.2300/- per month. Now, applying the ratio laid

down by the Supreme Court in the case of National Insurance Co. Ltd.

v. Pranay Shethy and Others, reported in AIR 2017 SC 5157, 40% of

the monthly shall have to be added so as to award just and fair

compensation under the head of future dependency loss. Therefore,

Rs.2300/- + Rs.920/- (40%) = Rs.3220/- would be the monthly income.

Looking to the size of the family and the members of the dependent, 1/4th

amount required to be deducted as a personal expenditure from the

aforesaid income, which would come to Rs.3220/- (-) Rs.805/- =

Rs.2415/- which is the net monthly income for the purpose of

consideration of future dependency loss.

14. So far as awarding of multiplier is concerned, in my view, the

Tribunal should have awarded multiplier of 17, looking to the age of the

deceased. Thus, amount under the head of future prospective income

would be Rs.4,92,660/- (Rs.2415/- x 12 x 17) which would be just and

proper.

15. So far as the compensation under the head of consortium is

concerned, applying the ratio laid down by the Supreme Court in the case

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

of Magma Insurance Co. (Supra), in my opinion, each claimant shall be

entitled to Rs.40,000/- under the head of loss of consortium which would

come to Rs.1,60,000/- (Rs.40,000 x 4 (claimants)). In my view,

Rs.15,000/- would be just and proper under the head of loss of estate.

Thus, the claimant would be entitled to additional compensation under

the various heads as under :

              Sr.          Amount                       Particulars
              No.

               1.       Rs.4,92,660/-      Loss of future prospective income

               2.       Rs.1,60,000/-      Loss of consortium
                        (Rs.40,000 x 4
                          claimants)

               3.        Rs.15,000/-       Loss of estate

                       Total Rs.6,67,000/-

16. As against the aforesaid, the Tribunal has awarded Rs.2,09,000/-

which is required to be deducted from the above compensation. Thus, the

net enhanced amount payable to the claimants would come to

Rs.4,58,000/- with 9% interest thereon from the date of application till

realization.

17. In view of the above and for the reasons stated above, the present

First Appeal is allowed in toto. The impugned judgment and award dated

C/FA/2292/2010 JUDGMENT DATED: 25/10/2021

29.9.2009 passed by the Tribunal concerned is hereby modified to the

aforesaid extent. The Insurance Co. is directed to deposit the aforesaid

enhanced amount with 9% interest within 8 weeks with the concerned

Tribunal and the Tribunal concerned is further directed to issue account