Gujarat High Court
Sakarben Vrajlal Bhanderi vs Bhagubhai Nagbhai Khachar on 26 October, 2021
Bench: Mauna M. Bhatt
C/FA/1339/2020 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1339 of 2020
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SAKARBEN VRAJLAL BHANDERI
Versus
BHAGUBHAI NAGBHAI KHACHAR
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Appearance:
MR. KARNA H. DHOMSE, ADVOCATE FOR MR.HIREN M MODI(3732) for
the Appellant(s) No. 1,2,3,4
MR SUNIL B PARIKH(582) 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 THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 26/10/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR)
1. This is a claimants' appeal for enhancement of the
compensation by challenging the quantum of
compensation awarded by the Motor Accident Claim
Tribunal (Aux.), Junagadh in MACP No. 156 of 2017,
whereunder claim petition filed under section 166 of the
M.V. Act, 1988 came to be allowed in part and a total
compensation of Rs. 42,70,000/- has been awarded.
2. We have heard the learned advocates appearing for
the parties namely learned advocate Mr. Karna H.
Dhomse appearing for Mr. Hiren M. Modi for the
appellants and Mr. Sunil B. Parikh for the respondent No.
3.
C/FA/1339/2020 ORDER DATED: 26/10/2021
3. We dispense with calling for Record and
proceedings since this appeal can be disposed of on a
short issue namely as to whether the compensation
awarded by the Tribunal requires enhancement at all and
if so, to what extent ?
4. The occurrence of accident on 01.07.2017 at about
5 pm, issuance of policy to the offending vehicle namely
the luxury bus bearing registration No. GJ-14-Z-395 as
well as the deceased having suffered fatal injury in the
said accident and succumbing to the same are all facts
which are not in dispute and same having been delved
upon by the Tribunal in detail, we do not propose to
burden this judgment by repeating the same.
5. Learned counsel appearing for the appellants has
vehemently contended that Tribunal committed a serious
error in not considering the actual income of the
deceased for assessing the compensation towards loss of
future income, and as such, the compensation awarded to
the dependents of the deceased, requires to be modified
by enhancing the same. He would also submit that
Tribunal ought to have deducted 1/4 of the income of the
deceased towards living expenses and not 1/3 particularly
when claimants were four in number. He would contend
that mother of the deceased as well as children are
entitled to filial compensation as well as parental
consortium, and same having not been granted, he has
prayed for same being awarded by this Court. He would
also submit that Tribunal committed an error in arriving
at a conclusion that on account of accident, having
C/FA/1339/2020 ORDER DATED: 26/10/2021
occurred due to head on collision, a presumption has to
be drawn there was negligence on the part of the
deceased also and he had also contributed to the said
accident. Hence, he has prayed for allowing the appeal.
6. Per contra, learned counsel Mr. Parikh appearing for
the insurer would support the judgment and award
passed by the Tribunal and contends that whatever
compensation is awarded by the Tribunal is itself
excessive and as such, it would not call for interference.
7. Having heard the learned counsel appearing for the
appellants, we notice that Tribunal while computing the
loss of future income, has taken into consideration the
income tax returns as per Exh. 29, 30 and 31, relating to
the Assessment Years 2014-15, 2015-16 and 2016-17
which revealed the gross income as well as agricultural
income of the deceased. For the purposes of
convenience, we have tabulated the same herein below: -
Exh. Business Income Agricultural Income
29 2,41,896/- 1,64,790/-
30 3,57,430/- 85,430/-
31 3,32,006/- 78,900
Total 9,31,332/- 3,29,100/-
8. The Tribunal has taken the income of the deceased
at Rs. 37,500/- per month which is inclusive of
prospective income. This computation is traceable to
paragraph 24 and 25 of the award of the Tribunal.
Though Tribunal ought to have taken the net income, for
C/FA/1339/2020 ORDER DATED: 26/10/2021
reasons best known it has computed the income as gross
income though this error is committed by the Tribunal, we
do not propose to go into the said aspect inasmuch, as,
the average income of these three years when calculated,
would come to Rs. 3,10,444/- per year, or in other words,
it would be Rs. 25,870/- per mensem. Likewise, the
average of three years of agricultural income would be
Rs. 1,09,700/- and the monthly income would be Rs.
9,141/-, the sum total of which would be Rs. 35,011/-.
Taking into consideration that there is fluctuation in the
income, we do not propose to interfere with the award of
the Tribunal, whereunder, the income of the deceased is
taken at Rs. 30,000/- per month and tribunal has also
taken into consideration the age of the deceased being
41 years has added 25% towards future prospects by
applying the principles laid down by the Apex Court in the
case of National Insurance Co. Ltd. versus Pranay
Sethi & Ors. reported in (2017) 3 GLH 535. In other
words the income of the deceased which came to be
construed by the Tribunal at Rs. 37,500/-, is just and
proper.
9. The composition of the deceased's family was his
wife, his aged mother and two children. Thus, the number
of dependents being four, the Hon'ble Apex Court in
Sarla Verma & Ors. versus Delhi Transport Corp.&
Anr. reported in (2009) 6 SCC 121, has held that the
deduction ought to be 1/4 and not 1/3. Thus, if 1/4 of the
total income is deducted from Rs.37,500/-, the gross
income which is lost to the dependents would be
Rs.28,125/- (37,500 - 9,375 = 28,125). However, the
C/FA/1339/2020 ORDER DATED: 26/10/2021
Tribunal has construed loss of income by deducting 1/3rd
of Rs.37,500/- which is erroneous and same requires to
be modified and the compensation awarded towards loss
of dependency requires to be recomputed as under : -
28,125 x 12 x 14 = 47,25,000/-
Thus, compensation awarded by the Tribunal
under the head towards "loss of dependency" i.e.
Rs. 42,00,000/- being erroneous, it is modified by
enhancing the same.
10. Hon'ble Apex Court has held that where the children
loose their parents, the loss of love and affection requires
to be commensurately compensated by awarding
parental compensation and Tribunal having not been
awarded any compensation towards loss of parental
consortium, we are of the considered view that a sum of
Rs. 40,000/- to each of the children namely appellant no.
3 and 4 deserves to be awarded and accordingly it is
awarded.
11. Insofar as appellant no. 1 being the mother having
lost her son who was in the prime age of 41 years, would
definitely loose the love and care that would have been
showered on her by her son. For depreviation of this, she
would be entitled to the compensation of Rs. 40,000/- as
held by the Apex Court in Pranay Sethi's case (supra)
and accordingly we award a sum of Rs. 40,000/- to the
first claimant.
C/FA/1339/2020 ORDER DATED: 26/10/2021
12. The compensation awarded by the Tribunal under
other heads would not call for interference. In
substitution to what has been awarded by the Tribunal,
we award following compensation : -
Head Amount
Loss of dependency 47,25,000/-
Parental consortium 80,000/-
Filial compensation 40,000/-
Loss of consortium 40,000/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Total 49,15,000/-
13. Tribunal has held that there was certain negligence
on the part of the deceased. The records of the police
investigation namely FIR and chargesheet would indicate
that driver of the offending vehicle namely luxury bus
bearing registration no. GJ-14-Z-395 has been proceeded
against after registering a case under section 188 of
Indian Penal Code for rash and negligent driving of the
offending vehicle. The insurer has not challenged the
chargesheet filed against the driver. It has also not taken
pains to examine the driver of the offending vehicle. In
this background, when spot panchnama Exh. 22 is
examined, it would clearly indicate that the accident has
taken place on the road leading from Khadiya to
Mendarda. The Tribunal on the ground that bumper on
right side of the bus had broken down, has arrived at a
conclusion that driver of the motorcycle namely the
deceased ought to have noticed the oncoming bus and
there was some negligence on the part of the deceased.
C/FA/1339/2020 ORDER DATED: 26/10/2021
We are of the considered view that this is an erroneous
finding recorded by the Tribunal. The bus being a big
sized luxury bus and on account of the driver of the bus
having come to the right side of the road, having dashed
against the oncoming motorcycle which was driven by the
deceased in a cautious manner, no negligence could have
been attributed to him. Merely because the drivers of
both the vehicle could have seen each other, was itself
not a ground on which any negligence could have been
attributed to the deceased. No driver would expect that
on an oncoming vehicle from the opposite direction would
suddenly cross the middle path and travel into the path in
which the vehicle is proceeding. This is exactly what has
happened in the instant case as could be seen from the
discussion made by the Tribunal at paragraph 14 of the
award of the Tribunal. Only on account of accident
having occurred during day light, tribunal could not have
jumped to the conclusion that there is probability of
negligence on the part of deceased. As such finding
recorded by the Tribunal in that regard cannot be
sustained. Accordingly, we answer the points formulated
hereinabove partly in favour of the appellants.
14. For the reasons aforestated, we proceed to pass
following
ORDER
(i) Appeal is allowed in part.
(ii) Judgment and award passed by Motor
Accident Claims Tribunal (Aux.), Junagadh in
MACP No. 156 of 2017 is hereby modified and
C/FA/1339/2020 ORDER DATED: 26/10/2021
claimants are awarded a total compensation of
Rs.49,15,000/- which shall carry interest @
7.5%.
(iii) The apportionment and order for
payment / deposit as made by the Tribunal
stands affirmed.
(iv) Insurer to deposit the compensation
amount with interest before the jurisdictional
Tribunal within 6 weeks from the date of receipt
of copy of this order.
(ARAVIND KUMAR,CJ)
(MAUNA M. BHATT,J)
AMAR SINGH
