Gujarat High Court
Ajubha Vajubha Sarvaiya vs Ajitbhai Dayabhai Vaghela on 28 October, 2021
Bench: R.M.Chhaya, Samir J. Dave
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1005 of 2019
With
R/FIRST APPEAL NO. 818 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE sd/-
==============================================================
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 of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
AJUBHA VAJUBHA SARVAIYA
Versus
AJITBHAI DAYABHAI VAGHELA
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5,6
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
common judgment and award passed in MACP Nos. 39 of
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
2017 and 40 of 2017, the original claimants of both the
original claim petitions have preferred present appeals.
2.0. The appeals arise out of the same accident and parties
have adduced the same set of evidence before the Tribunal
and even Tribunal has partly allowed the claim petitions by
common judgment and award and hence both the appeals
were heard together and are disposed of by this common
judgment and order.
3.0. The following facts emerge from the record of the
appeals:
3.1. That the accident occurred on 25.3.2017. It is the case
of the original claimants that the deceased Yuvrajsinh and
Janaksinh were going on motorcycle from Talaja to Rojiya
and deceased Janaksinh was driving the said motorcycle on
the correct side of the road. The record indicates that while
motorcycle reached near village Pasvi, a truck bearing
registration no. GJ-6-Z-4111 came from otherside and was
driving truck in rash and negligent manner, which resulted
into accident and that the truck dashed with the
motorcycle, both the deceased Yuvrajsinh and Janaksinh
sustained serious injuries and ultimately succumbed to the
same. An FIR was lodged with the jurisdictional police
station. Present claim petitions were filed under Section 166
of the Motor Vehicles Act by the original claimants and in
both the claim petitions the appellants- original claimants
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
claimed compensation of Rs.45 lakhs each. That one
Purnaba Sarvaiya in Claim Petition No. 39 of 2017 and one
Ajubha Sarvaiya was examined at Exh.17 in Claim Petition
No. 40 of 2017. In both the claim petitions, appellants -
original claimants relied upon the following plethora of
documentary evidence.
Exh. No. Particulars
MACP NO. 39 OF 2017
21 FIR and complaint
22 & 23 Panchanama (2)
24 Inquest Panchnama
25 PM Note of deceased Yuvrajsinh
26 Copy of birth certificate of Yuvrajsinh
27 Village form no. 7/12, 8-A of revenue record.
28 Purchase bills
29 Aadhar Cards (2)
30 Copy of DL
31 Copy of RC Book
32 Copy of certificate of fitness
33 Copy of permit
MACP NO. 40 OF 2017
18 Inquest Panchnama
19 PM Note of Janaksinh
20 Copy of birth certificate of Janaksinh
21 Village form no. 7/12, 8-A of revenue record.
22 Copy of purchase bills
23 Copy of Aadhar Card (6)
The Insurance Company did not adduce any oral
evidence but only relied upon the policy of the truck at
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
Exh.34. The Tribunal having appreciated the evidence, more
particularly, FIR and the panchnama came to the
conclusion that the driver of the truck was solely
responsible and negligent for the accident. In MACP No. 39
of 2017 it was the case of the appellants - original claimants
that the deceased Yuvrajsinh was aged about 20 years on
the date of accident and was engaged in the vocation of
agriculture and was doing agricultural activities and earning
Rs.4 lakhs p.a. In Claim Petition No. 40 of 2017 it was the
case of the appellants - original claimants that deceased
Janaksinh was aged about 25 years on the date of accident
and was engaged in the vocation of agriculture and was
doing agricultural activities and earning Rs.4 lakhs p.a. It
deserves to be noted at this stage that the original claimants
have relied upon the same set of evidence to prove the
income. The Tribunal in both these claim petitions
appreciated the common evidence on record and was
pleased to partly allowed the both the claim petitions and
awarded a total compensation of Rs.7,86,000/- individually
in both the claim petitions and awarded interest at the rate
of 9% pa from the date of claim petitions till its realization.
Being aggrieved and dissatisfied with the same, the original
claimants have preferred present appeals.
4.0. Heard Mr. Hiren Modi, learned advocate for the
appellants- original claimants and Mr. Sunil Parikh, learned
advocate for the Insurance Company. Though served,
nobody appears on behalf of respondent no.1. With the
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
consent of the learned advocates for the respective parties,
the matter is taken up for its final hearing forthwith. We
have also perused the original record and proceedings of the
case.
5.0. Mr. Hiren Modi, learned advocate for the appellants in
both the appeals contended that the Tribunal has
committed an error in determining the income of the
deceased in both the appeals at Rs.5000/- per month.
According to Mr. Modi, both the deceased were working as
agriculturist may be in the field belonging to the family
member. However, according to documentary evidence at
Exhs. 27 & 28, it was contended by Mr. Modi that both the
deceased used to earn Rs.4 lakhs each per annum. On the
aforesaid sole ground, it was contended by Mr. Modi that
impugned judgment and award deserves to be modified by
allowing the appeals.
6.0. Per contra, Mr. Sunil Parikh, learned advocate for the
Insurance Company in both the appeals has opposed the
present appeals. Mr. Parikh contended that the appellants -
original claimants have failed to prove the income of the
deceased. Mr. Parikh further contended that the land
belonging to the family member and therefore, at the most
while determining the income, supervisory lost of the
deceased in both the appeals can be considered to be the
income and nothing more. According to Mr. Parikh on the
contrary the Tribunal has determined Rs.5000/- as income
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
in both the cases which itself is excessive. It was therefore,
contended that both the appeals are meritless and same
deserve to be dismissed.
7.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
8.0. Having considered the submissions made by the
learned advocates for the respective parties, more
particularly, on the income, it is no doubt true that except
Exh.27 & 28 no other evidence is found on the record even
to prove that the appellants had income at Rs.4 lakhs p.a.
However, upon reappreciation of the evidence on record
such income was not individual income of the deceased in
both the appeals but was sole income of the family. It is no
doubt true that the evidence thus reveals that the deceased
were actually doing agricultural work. Considering the date
of accident to be 25.3.2017, even if minimum wages
standard is applied in both the cases, the income of the
deceased in both the appeals can safely be assessed at
Rs.7177/- per month which is rounded of to Rs.7200/-. The
Tribunal has rightly applied the multiplier of 18 and having
come to the aforesaid conclusion, the appellants in both
these appeals would be entitled to compensation under the
head of future loss of income as under:
First Appeal No. 1005 of 2019
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
Rs. 7200/- per month (income) + Rs.2880/- (40%
prospective income) = 10,080/- - 5040/- (1/2 towards
personal income = Rs5040/- x 12 (pa)= 60480/- X 18
(Multiplier as the age of the deceased was 20 years)= Rs.
10,88,640/-.
First Appeal No.818 of 2019
Rs. 7200/- per month (income) + Rs.2880/- (40%
prospective income) = 10,080/- - 5040/- (1/2 towards
personal income = Rs5040/- x 12 (pa)= 60480/- X 18
(Multiplier as the age of the deceased was 20 years)= Rs.
10,88,640/-.
9.0. In First Appeal No.1005 of 2019, over and above the
compensation under the head of loss of dependency,
Following the ratio laid down by the Hon'ble Supreme Court
in the case of United India Insurance Company Limited vs.
Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC
3076, the appellant nos. 1 and 2 as parents would also be
entitled to parental consortium of Rs.40,000/- each,
Rs.15000/- towards loss of estate and Rs.15000/- towards
funeral expenses.
Similarly, in First Appeal No.818 of 2019, over and
above the compensation under the head of loss of
dependency, Following the ratio laid down by the Hon'ble
Supreme Court in the case of United India Insurance
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
Company Limited vs. Satinder Kaur @ Satwinder Kaur
reported in AIR 2020 SC 3076, the appellant no. 1 as
parents would also be entitled to parental consortium of
Rs.40,000/-, Rs.15000/- towards loss of estate and
Rs.15000/- towards funeral expenses.
10. Having come to the aforesaid conclusion, therefore, the
appellants would be entitled to total compensation as
under:
First Appeal No. 1005 of 2019
Particulars Amount (Rs.)
Future loss of income 10,88,640/-
Parental consortium 80,000/--
Loss of estate 15,000/-
Funeral Expenses 15,000/-
Total Compensation 11,98,640/-
First Appeal No. 818of 2019
Particulars Amount (Rs.)
Future loss of income 10,88,640/-
Parental consortium 40,000/--
Loss of estate 15,000/-
Funeral Expenses 15,000/-
Total Compensation 11,58,640/-
10. Thus, the appellants- claimants of First Appeal
No.1005 of 2009 would be entitled to total compensation of
Rs.11,98,640/-. As the Tribunal has awarded an amount of
Rs. 7,86,000/-, the respondent Insurance Company shall
C/FA/1005/2019 JUDGMENT DATED: 28/10/2021
deposit the additional amount of Rs.4,12,640/- with 7.5%
interest from the date of claim petition till its realization
with the Tribunal within a period of 8 weeks from the
receipt of the order.
Thus, the appellants- claimants of First Appeal No.818
of 2009 would be entitled to total compensation of
Rs.11,58,640/-. As the Tribunal has awarded an amount of
Rs. 7,86,000/-, the respondent Insurance Company shall
deposit the additional amount of Rs.3,72,640/- with 7.5%
interest from the date of claim petition till its realization
with the Tribunal within a period of 8 weeks from the
receipt of the order.
11. In view of the aforesaid, therefore, both the appeals are
partly allowed to the aforesaid extend and impugned
judgment and award is modified to the aforesaid extend.
Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith.
However, there shall be no order as to costs.
sd/-
(R.M.CHHAYA,J)
sd/-
(SAMIR J. DAVE,J)
KAUSHIK J. RATHOD
