Daxaben Alias Sudhaben Wd/O. ... vs Dhulabhai Budhabhai
2022 Latest Caselaw 3988 Guj

     C/FA/4392/2006                             JUDGMENT DATED: 05/04/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 4392 of 2006

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.G.URAIZEE                 Sd/-
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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               NO
      of the judgment ?

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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     DAXABEN ALIAS SUDHABEN WD/O. ARVINDSINH HIMMATSINH & 3
                            other(s)
                             Versus
                 DHULABHAI BUDHABHAI & 5 other(s)
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1,2,3,4
GOVERNMENT PLEADER for the Defendant(s) No. 4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MS LILU K BHAYA(1705) for the Defendant(s) No. 6
NOTICE SERVED BY DS for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,5
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    CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                           Date : 05/04/2022
                           ORAL JUDGMENT

1. The present appeal under Section 173 of Motor Vehicles Act, 1988 ("MV Act" for short) is preferred by the appellants for enhancement of the compensation awarded by the Motor Accident Claim Tribunal (Aux.) Bharuch in Motor Accident Claim Petition No.512 of 1994.

2. The facts in brief as could be culled out from the

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memo of the appeal and the impugned judgment and award are that on 19.02.1994, the deceased -Arvindsinh Himmatsinh, who happens to be husband of appellant No.1-claimant, was going to Nobara with the respondent No.5 on his Scooter as a pillion rider. At that time, when the said scooter was driven by the respondent no.5, the police jeep bearing registration No.GJ-16-G-0013 came with full speed, rashly and negligently from opposite direction and on the wrong side and dashed with the said scooter resulted into serious accident, in which deceased- Arvindsinh Himmatsinh crushed under the wheels of the said Jeep and died on the spot. Thereafter, an FIR in respect of the accident was registered in Jambusar Police Station against the respondent No.1-driver of the offending vehicle. The offending vehicle was of the ownership of respondent No.2 and it was insured with respondent No.3-Insurance Company at the time of accident. The appellant, therefore, filed MACP No.512 of 1994 to recover a compensation of Rs.17,00,000/- from respondent Nos.1 to 3 jointly and severally.

3. The Tribunal after considering the oral and documentary evidence adduced by the parties partly allowed the claim petition by impugned judgment and award and awarded Rs.9,05,200/- as compensation with the interest @ 7.5% and the respondents were directed to pay jointly and severally. The appellant being unhappy with the quantum of compensation approached before this Court for enhancement of compensation.

C/FA/4392/2006 JUDGMENT DATED: 05/04/2022

4. I have heard Mr.KK Marfatia, learned advocate for Mr.K.R. Joshi, learned advocate for the appellants, Mr.Maulik Shelat, learned advocate for respondent No.3 - United India Insurance Company and Ms.Lilu K Bhaya, learned advocate for respondent No.6 - National Insurance Company Limited.

5. Mr.Marfatia, learned advocate for the appellants submits that the deceased was aged about 38 years at the time of accident and was Government employee. He, therefore, submits that the Tribunal ought to have considered prospective income for determining the dependency of the appellant. It is his further submission that the Tribunal has committed an error in deducting 1/3 towards personal expenses of the deceased. He submits that considering the principle of dependents, the deduction towards personal expenses may be considered as 1/4. He further submits that the amount of compensation awarded under the conventional head is also lower side. Relying upon the decision of the Supreme Court in the case of National Insurance Co. Ltd vs Pranay Sethi reported in 2017 (16) SCC 680, he urges that 50% prospective income may be considered for determining the income of deceased and total Rs.70,000/- instead of Rs.2,000/- may be awarded under the conventional head. He, therefore, urges that the compensation awarded by the Tribunal may be enhanced accordingly. He further submits that the Tribunal has

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committed an error in adopting 16 multiplier. According to his submission, as per the case of National Insurance (supra), the appropriate multiplier would be 15.

6. I have considered the rival submissions and I have perused the impugned judgment and award.

7. It is undisputed facts that the appellant was working as a Gram Sevak in Agricultural Department of State of Gujarat. The learned advocate for the applicant has not disputed the income assessed by the Tribunal. However, only grievance which is raised by him is regarding not consideration of prospective income.

8. The Supreme Court in the case of National Insurance (supra) has held that person having a permanent job and he is between the age bracket of 21 to 40, prospective income @ 50% is required to be considered to determine the income of the deceased for the purpose of dependency of the claimants. Undisputedly, in the present case, the Tribunal has not considered 50% prospective income of the deceased.

9. As per the decision of National Insurance (supra), the conventional under the head of loss of consortium, loss of estate and Funeral Expenses should be Rs.70,000/- in all (40+15+15 respectively) whereas, the Tribunal has considered Rs.22,000/- (Rs.10,000+10,000+2,000/-) under this head. It is apparent from the cause title of the

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claim petition that there are four dependents. Hence, as per the decision of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, should be deducted instead of 1/3 towards the personal expenses of the deceased.

10. Considering the overall facts as discussed hereinabove, I am of the view that the compensation awarded by the Tribunal needs to be revised as under:

Awarded by the Tribunal Reassessed calculation

(i) Annual Income Rs.55,168/- Rs.55,168/-

(Actual) [Rs.3764x12+10,000) [Rs.3764x12+10,000)

(ii) Annual Income Rs.55,168/- Rs.82,752/-

including prospective (Rs.55,168+50% income

(iii) Net annual income Rs.55,168/- Rs.62,064 for dependency (Rs.82,752-25%) benefit

A Total Rs.8,83,200/- Rs.9,30,960/-

(Rs.62,064x15) B Loss of consortium Rs.10,000/- Rs.40,000/- C Loss of estate Rs.10,000/- Rs.15,000/-

D       Funeral Expenses     2,000/-                     15,000/-
        Grand Total          Rs.9,05,200/-               Rs.10,00,960/-
        (A+B+C+D)

11. In view of the above, the appellants-claimants are entitled to Rs.10,00,960/- as total compensation instead of Rs.9,05,200/- awarded by the Tribunal under the impugned judgment and award. The appellants-claimants are accordingly entitled to Rs.95,760/- as additional

C/FA/4392/2006 JUDGMENT DATED: 05/04/2022

compensation.

12. Considering the overall facts of the case, I am of the view that ends of the justice would be subserved, if the interest @ 6% instead of 7.5 as awarded by the Tribunal is allowed on the additional compensation.

13. For the forgoing reasons, the appeal succeeds in part. The impugned judgment and award of the Tribunal is hereby modified and the appellants are entitled to Rs.10,00,960/- as compensation instead of Rs.9,05,200/- as awarded by the Tribunal. The claimants are entitled to Rs.95,760/- as additional compensation with interest @ 6% p.a. thereon from the date of claim petition till realization. The balance enhanced amount of compensation with interest and costs if any from the date of application till realization to be deposited by the respondent No.3-Insurance Company with the learned Tribunal on or before 30th June, 2022 and on such deposit, the same shall be paid to the original claimants by account payee cheque on proper identification and verification. The Registry is directed to remit R & P, if summoned, to the Tribunal forthwith. No order as to costs.

Sd/-

(A.G.URAIZEE, J) ALI