Gujarat High Court
Umadevi Rajneesh Chandra Pandey vs Sajjansinh Abhesinh Rathod on 26 October, 2021
Bench: R.M.Chhaya
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4924 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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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UMADEVI RAJNEESH CHANDRA PANDEY
Versus
SAJJANSINH ABHESINH RATHOD
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No.
1,2,3,4,5,6,7
MS VYOMA K JHAVERI(6386) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 26/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 25.09.2018 passed by the
Motor Accident Claims Tribunal (Aux), Vadodara in
MACP No. 951 of 2011, the original claimants have
preferred the present appeal under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to as
the "Act").
2. Heard Mr. MSM Hakim, learned advocate for the
appellant and Ms. Vyoma Jhaveri, learned advocate for
respondent no.2. Though served, no one appears for
respondent no.1.
3. The following facts emerge from the record of
the appeal -
3.1 That the accident took place on 21.05.2011 near
Moti Talavdi Canal of Padra. It is the case of the
claimants that the deceased was riding his motorcycle
bearing registration no. GJ-16-AQ-4734 and when he
reached the scene of occurrence, one ST Bus bearing
registration no.GJ-18Y-1877 came from the other side
being driven in rash and negligent manner and dashed
with the motorcycle because of which, the deceased
succumbed to the injuries. FIR was lodged with the
Vadodara Taluka Police Station being C.R. No. I-
87/2011. The appellants-original claimants preferred
the present petition under Section 166 of the Act and
claimed compensation of Rs.22,00,000/-.
3.2 The appellant no.1 was examined at exhibit 15
and appellants relied upon the documentary evidence
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
such as income certificate of the deceased at exhibit
17, FIR at exhibit 19, chargesheet at exhibit 20,
panchnama of the place of accident at exhibit 21,
inquest panchnama at exhibit 22, PM report at exhibit
23. It was the case of the appellants that the
deceased was working as Security Supervisor in a
private firm named as Solaris Chemtech and was
earning Rs. 13,953/- as salary. The prove the said
fact, the appellants relied upon the salary
certificate dated 21.07.2011 at exhibit 17. The
Tribunal after appreciating the said evidence on
record, came to the conclusion that the basic salary
as well as special allowances only should be taken as
the income of the deceased and thus determined the
income of the deceased per month at Rs. 5,520/- and
following the ratio laid down by the Apex Court in
the case of National Insurance Company Ltd. Vs.
Pranay Sethi, reported in 2017 (16) SCC 680, after
deducting 1/5th towards personal expenses, applying
multiplier of 16 as the age of the deceased was 32
years, awarded a sum of Rs. 11,82,720/- as
compensation under Future Loss of Income and also
awarded Rs. 70,000/- under different conventional
heads including funeral expenses and thus while
partly allowing the claim petition was pleased to
award as sum of Rs. 12,52,720/- as total compensation
along with 9% interest from the date of the filing of
the claim petition till its realisation with costs.
Being aggrieved by the same, the claimants have
preferred this appeal.
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
4. With the consent of the learned advocates for
the parties, the matter was taken up for final
disposal as only one issue of income is raised in
this appeal.
5. Mr. Hakim, learned advocate appearing for the
appellants has also provided relevant documentary
evidence, including deposition exhibit 24 and the
salary certificate at exhibit 17. Mr. Hakim
contended that the Tribunal has committed a grave
error in considering just two aspects being part of
the income of the deceased. Mr. Hakim contended that
the other heads like medical reimbursement, leave
travel assistance, Provident Fund, gratuity, ex
gratia in lieu of bonus, earned leave, casual leave,
sick leave are the part of the income of the deceased
who has lost because of the demise of the deceased
only because of the accident. Mr. Hakim relying upon
the judgment of the Apex Court in the case of United
India Insurance Co. Ltd. Vs. Satinder Kaur @
Satwinder Kaur reported in AIR 2020 SC 3076 contended
that over and above the conventional head which was
granted by the Tribunal, the appellants no. 2 to 5
who are minor of the deceased would be entitled to
parental consortium and appellants no. 6 & 7 would be
entitled to filial consortium. On the aforesaid
grounds, it was therefore contended by Mr. Hakim that
the impugned judgment and award be modified by
allowing the present appeal.
6. Per contra, Ms. Vyoma Jhaveri, learned advocate
appearing for the respondent no.2 has opposed this
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
appeal. According to Ms. Jhaveri, the Tribunal has
committed no error in considering only two heads as
part of the regular income. According to Ms.
Jhaveri, the other salary heads as mentioned in the
salary slip at exhibit 17 were of personal in nature
and same cannot be considered to be a part of the
regular income of the deceased. Ms. Jhaveri
contended that the accident is dated 21.05.2011.
Therefore, the benefit of the judgment of the Apex
Court in the case of United India Insurance Co. Ltd.
Vs. Satinder Kaur @ Satwinder Kaur reported in AIR
2020 SC 3076 cannot be extended to the present
appellants. On the aforesaid grounds, it was
contended by Ms. Jhaveri that the appeal being
meritless, deserves to be dismissed.
7. On perusal of the impugned judgment and award,
the Tribunal has referred to the salary certificate.
However, while determining the income, has not
considered the salary slip at exhibit 17. The salary
slip at exhibit 17 clearly indicates that over and
above the basic salary and special allowances, other
heads were also part of the income of the deceased.
Upon re-appreciation of the evidence on record, this
Court is of the opinion that from the salary slip at
exhibit 17, the following are required to be
considered as part of income -
Medical Reimbursement - Rs.333/-
Leave Travel Assistance - Rs.500/-
Provident Fund - Rs.480
Gratuity - Rs.192/-
Ex-gratia in lieu of bonus - Rs.583/-
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
Earned Leave - Rs.385/-
Casual Leave - Rs.90/-
Sick Leave - Rs.90/-
Rest of the heads were personal in nature and
therefore cannot form part of the income. Having
come to the aforesaid conclusion and upon re-
appreciation of the said evidence on record, the
income of the deceased would come to Rs. 8200/- per
month.
8. The appellant no.1 is the widow and the
appellants no.2 to 5 who are minor children of the
deceased and appellants no.6 & 7 are parents.
Following the ratio laid down by the Apex Court in
the case of Satinder Kaur @ Satwinder Kaur (supra),
the appellants no. 2 to 5 being minor children who
have lost their parent because of the premature death
would therefore be entitled to parental consortium
and similarly appellants no. 6 and 7, the parents,
have lost their son, and are therefore entitled to
filial consortium. Following the judgment of the
Apex Court in the case of Magma General Insurance
Company ltd. Versus Nanu Ram @ Chuhru Ram and Ors.,
(2018) 18 SCC 130 as well as Satinder Kaur @
Satwinder Kaur (supra), the appellants would be
entitled to parental consortium of Rs.40,000/- each
and filial consortium of Rs.40,000/-. Having come to
the aforesaid conclusion, the appellants would be
entitled to compensation as under -
C/FA/4924/2019 JUDGMENT DATED: 26/10/2021
Rs.8,200/- (monthly income) X 12 = Rs.98,400/-
(annual income) - Rs. 19,680/- (1/5th towards
personal expenses) = Rs.78,720/- + Rs. 31,488/-
(40% future prospects) = Rs.1,10,208/- X 16
(multiplier) = Rs. 17,63,328/- (Future loss of
income)
Future Loss of Income - Rs.17,63,328/-
Loss of Estate, Loss
of consortium and
funeral expenses - Rs. 70,000/-
Parental consortium
& Filial consortium - Rs. 2,40,000/-
______________
Total compensation Rs.20,73,328/-
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As the Tribunal has awarded Rs. 12,52,570/- the
appellants would be entitled to additional
compensation of Rs. 8,20,758/- with 9% interest p.a.
from the date of the claim petition till its
realization and proportionate cost.
10. The appeal is thus partly allowed. The impugned
judgment and award is modified to the aforesaid
extent. The respondent Corporation shall deposit the
additional amount as awarded by this Court along with
proportionate interest and cost with the Tribunal
within a period of eight weeks from the date of the
receipt of this judgment and order. However, there
shall be no order as to costs.
(R.M.CHHAYA,J)
(SAMIR J. DAVE,J)
BIJOY B. PILLAI
