Gujarat High Court

Ilaba Bhimdevsinh Gohil vs Ashokbhai Ghelabhai Dabhi on 7 September, 2021

Bench: A.G.Uraizee

     C/FA/1007/2021                               ORDER DATED: 07/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1007 of 2021

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                        ILABA BHIMDEVSINH GOHIL
                                 Versus
                       ASHOKBHAI GHELABHAI DABHI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
MR RUDRA V TRIVEDI FOR MR. BHAUMIK DHOLARIYA(7009) for the
Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                              Date : 07/09/2021

                               ORAL ORDER

1. Present appeal under Section 173 of the Motor

Vehicles Act, 1988 (MV Act for short) is preferred by the

appellants - original claimants for enhancement of

compensation awarded to them under judgment and

award dated 9.1.2020 passed by Motor Accident Claims

Tribunal (Aux), Distrcit Bhavnagar in M.A.C.P. No. 349 of

2016.

2. The facts giving rise to this appeal are that on

10.9.2016 at about 3 p.m., the deceased Bhimdevsinh

Gohil had parked his motorcycle near his field and was

standing near his motorcycle. At that time, the driver of

C/FA/1007/2021 ORDER DATED: 07/09/2021

the offending truck bearing registration No. GJ-14X-1010

came from his behind at very high and excessive speed in

rash and negligent manner and lost control over the

steering, as a result, the truck dashed with the deceased

Bhimdevsinh Gohil causing serious injuries. The deceased

Bhimdevsinh Gohil died on the spot as a consequence of

serious injury. The offence punishable under Sections

279, 304(A) of Indian Penal Code and under Sections 184,

177 of M.V. Act came to be registered with Ghogha Police

Station vide I-C.R. No. 40 of 2016 against the respondent

No.1 the driver of the offending truck.

2.1 The claimants being legal heirs of the deceased

Bhimdevsinh Gohil filed M.A.C.P. No. 349 of 2016 against

the respondent No.1 driver and insurance company

respectively of the offending truck bearing registration

No. GJ-14X-1010 to recover a sum of Rs.15,00,000/- with

12% interest and cost.

2.2 The respondent Nos. 1 and 2 did not enter their

appearance to contest the claim petition, whereas the

C/FA/1007/2021 ORDER DATED: 07/09/2021

respondent No.3 insurance company of the offending

truck resisted the claim petition by filing written

statement Exh.21. The Tribunal after considering ocular

and documentary evidence adduced by the parties, partly

allowed the claim petition and directed the respondent to

pay a sum of Rs.9,52,000/- with 9% interest jointly and

severally to the claimants from the date of the petition till

payment. The appellants, being aggrieved by the

quantum of the compensation, have preferred present

appeal for enhancement of the compensation.

3. With the consent of the learned advocates for the

parties, present appeal is taken up for final disposal as

the issue involved in the appeal moves in narrow

compass.

4. I have heard Mr. Nishit A. Bhalodi, learned advocate

for the appellants, Mr. Rudra V. Trivedi, learned advocate

for Mr. Bhaumik Dholariya, learned advocate the

respondent Nos. 1 and 2 and Mr. Alkesh N. Shah, learned

advocate for the respondent no.3 insurance company.

C/FA/1007/2021 ORDER DATED: 07/09/2021

5. Mr. Bhalodi, learned advocate for the appellants

submits that the deceased was having his own

agricultural land and was also having cattle. He submits

that the deceased was earning Rs.75,000/- per year after

meeting of the expenses from his agricultural activity and

was also earning good amount by selling milk. He,

therefore, submits that as per the say of the appellants,

the deceased was earning around Rs.10,000/- per month.

However, Tribunal has taken very conservative view in

assessing monthly income as Rs.5,000/- per month. He,

submits that the Tribunal ought to have at least assessed

Rs.7,800/- as monthly income of the deceased. He, further

submits that he does not press ground B and C raised in

the memo of present appeal. He, submits that the

compensation under the head of prospective income and

future loss of income needs to be revised and the final

compensation needs to be enhanced accordingly.

6. Mr. Alkesh Shah, learned advocate for the

respondent No.3 - insurance company submits that the

monthly income of the deceased may be revised to

C/FA/1007/2021 ORDER DATED: 07/09/2021

Rs.7800/-. However, according to his submission the

Tribunal has committed error in calculating prospective

income @ 40% which should be 25% in view of the

judgment in case of National Insurance Company Ltd.

vs. Pranay Sethy and others reported in 2017 ACJ

2700, as the deceased was self-employed and age of the

deceased was 43 years. He also submits that the rate of

interest (9%) allowed by the tribunal on the compensation

is also on higher side and according to his submission,

the interest admissible on the compensation, as per

current rate of interest ought to be 7.5%. He, submits

that in view above, award may be modified accordingly.

7. It emerges from the record that the deceased was an

agriculturist and was also having cattle. It also emerges

from the record that the deceased was deriving his

income from agricultural activity and by selling milk.

Though, the claimants asserted that the deceased was

earning Rs.10,000/- per month, however, they did not

produce any conclusive evidence to buttress their say.

The Tribunal has, therefore, done some guess work and

C/FA/1007/2021 ORDER DATED: 07/09/2021

has assessed Rs.5000/- as monthly income of the

deceased. Considering overall facts of the case and the

year in which the accident occurred i.e. 2016, I am of the

view that the Tribunal has adopted a little conservative

approach in assessing the monthly income of the

deceased and in the facts and circumstances of the case,

ends of justice would meet if the monthly income of the

deceased is assessed at Rs.7800/- as submitted by learned

advocate for the appellants. It is an undisputed fact that

the deceased was an agriculturist and hence he was self-

employed. It also emerges from the record that the

deceased was aged 43 years at the time of unfortunate

accident. It, thus, appears that the Tribunal has fallen in

error in assessing the prospective income by adding 40%

to the monthly income of the deceased instead of 25%. I

am therefore of the view that 25% needs to be added to

the monthly income of the deceased for arriving at the

prospective income of the deceased.

8. Having heard learned advocates for the parties and

having perused the impugned judgment and award. I am

C/FA/1007/2021 ORDER DATED: 07/09/2021

of the view that the compensation awarded by the

Tribunal under different heads needs to be calculated as

under.

             Compensation               As per Award   Calculation in
                                       under challenge First Appeal
(A)     Future Loss
(i)     Actual Income                                    5000                         7800
(ii)    Prospective Income                          7000(40%)                9750(25%
(iii) Deduction of amount                            1750(1/4)             2437.5(1/4)
      spent by the decd. on
      himself
(iv) Future Loss per                                 5250 x 12            7312.5 x 12
     Annum                                             =63000                = 87750

(A)     Future Loss                                   8,82,000               12,28,500
(B)     Conventional Amount                             70,000                     70,000
        Total Compensation                            9,52,000               12,98,500
        Interest                                             9%                       7.5%


9.      Accordingly, the compensation awarded                                 to the

appellants              original     claimants          is      enhanced                to

Rs.12,98,500/-             in      place     of      Rs.9,52,000/-.            As        a

consequence,             the    appellants          original    claimants            are

entitled to Rs.3,46,500/- as an additional compensation

with 7.5% interest from the date of filing of the petition

till realization.

10. In view of above, present appeal is allowed. The

C/FA/1007/2021 ORDER DATED: 07/09/2021

impugned judgment and award dated 9.1.2020 passed by

the learned Motor Accident Claims Tribunal at Bhavnagar

in M.A.C.P. No. 349 of 2016 is hereby modified and the

claimants are also entitled to Rs. 12,98,500/- as total

compensation in place of Rs.9,52,000/- and the claimants

are held entitled to Rs.3,46,500/- as additional

compensation with 7.5% interest from the date of filing of