Pramilaben W/O Rameshbhai ... vs Thakorsing Ramsablay Sikh
2022 Latest Caselaw 4150 Guj

     C/FA/387/2010                             JUDGMENT DATED: 13/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 387 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed                   Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

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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     PRAMILABEN W/O RAMESHBHAI MOHANBHAI PATEL & 4 other(s)
                           Versus
             THAKORSING RAMSABLAY SIKH & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 2
MR ANAL S SHAH(3988) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 13/04/2022
                           ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - original claimants, being aggrieved and dissatisfied with the judgment and award dated 06.01.2004 passed by the Motor Accident Claims Tribunal (Aux.), Bharuch Camp Court at Rajpipla in Motor Accident Claim Petition No. 355 of 1991,

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by which the Tribunal has awarded Rs.7,53,800/- compensation with 9% per annum interest to the claimants, holding Opponent Nos.1 to 3 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 03.01.1991, deceased - Rameshbhai Mohanbhai Patel was going on his scooter bearing registration No.GBP- 6680 and when he reached near Kevadia - Garudeshwar Road, one dumper bearing registration No.AMP-2380, driven by original opponent No.1, in rash and negligent manner, came from the opposite side with wrong side and dashed with the scooter of the deceased - Rameshbhai Mohanbhai Patel. As a result, Rameshbhai Mohanbhai Patel sustained grievous injuries and succumbed to the injuries on the spot. His Scooter was also damaged to very a great extent. The deceased was studied up to B.E. (Civil), and was working as an Additional Dy. Engineer in the office of Executive Engineer, Narmada Project, Main Canal Part-II, Kevadia Colony since 1978 and was earning Rs.2,958/- p.m. as on 03.01.1991. He was to go further service of 23 years. Deceased - Rameshbhai Mohanbhai Patel used to go to his native place and was also deals with the affairs of agricultural land and from that also, he was earning Rs.18,000/- to Rs.20,000/- p.a. after deducting all the expenses. Thereafter, the claim petition is filed to get the compensation of Rs.15,00,000/-.

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2.2 The Tribunal has issued summons to the claimants in the claim petition. Opponent No.1 did not appear. Opponent No.2 has filed his written statement at Exh.46 and has denied time, place and date of the accident as well as age and income of the deceased and denied all the averments made in the claim petition. Opponent No.3 has filed its written statement at Exh.38 by denying all the averments made in the claim petition.

3.3 The Tribunal has framed the issues at Exh.57. The widow of the deceased (Rameshbhai Mohanbhai Patel) - Premilaben was examined at Exh.71 and various documentary evidence have been produced on record; like F.I.R. at Exh.58, Panchnama of scene of offence at Exh.59 as well as documentary evidence regarding salary of the deceased at Exh.76 - 77. Moreover, the claimants have also examined one Bhulabhai Jethabhai Vasava at Ex.75 from Irrigation Department, Devadia .

2.4 After considering oral as well as documentary evidence, the Tribunal has awarded compensation of Rs.7,53,800/- with 9% per annum interest to the claimants.

2.5 Therefore, the present appeal is filed by the appellants

- original claimants for enhancement of amount of compensation under Section 173 of the Motor Vehicles Act, 1988.

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3.1 Learned advocate Mr. M.T.M. Hakim for the appellants - original claimants has submitted that the Tribunal has erred in considering the actual income of the deceased, by not considering the income towards the loss of managerial capacity of agriculture activity. Further, he has submitted that the Tribunal has considered the future income of deceased Rs.6,500/- p.m. and after deducting 1/3 towards person expenses, the income towards future loss of income is to be considered Rs.4,350/- p.m.. Thereafter, annual dependency is calculated Rs.52,200/-, looking to the age of deceased 35 years, the Tribunal has considered multiplier of 14 and therefore, total amount of compensation is calculated Rs.7,30,800/- towards loss of future income. Further, the Tribunal has considered towards loss estate Rs.10,000/- and towards loss of love and affection Rs.10,000/- and towards funeral expenses Rs.3,000/- and therefore, total amount of compensation comes to Rs.7,53,800/- with 9% p.a. interest, which is awarded by the Tribunal.

3.2 Learned advocate Mr. Hakim has submitted that the multiplier should be 16 not 14 and the deduction towards personal expenses should be 1/4th not 1/3rd as there are five dependents on the deceased. Further, he has submitted that towards loss of managerial capacity of the agriculture activity, the Tribunal ought to have considered Rs.3,000/-

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p.m. as actual income of the deceased. Further, he has submitted that the multiplier, which ought to have considered by the Tribunal is 16 and not 14 as per the decisions of the Hon'ble Apex Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. repored in (2009) 6 SCC 121 and National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680. Further, he has submitted that as per the decision of the Hon'ble Apex Court in the case Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram reported in (2018) 18 SCC 130, the amount towards loss of consortium to the four persons should be awarded Rs.1,60,000/- and towards loss of estate Rs.15,000/- as well as towards funeral expenses Rs.15,000/- as per the decision of the Hon'ble Apex Court in the case of Pranay Seth (supra) is required to be awarded. Therefore, he has submitted that amount of six lacks be enhanced over and above the awarded amount, after considering the submissions and therefore, he has submitted that the appeal is required to be allowed to the aforesaid extent.

4.1 Per contra, learned advocate Darshil Shakya appearing on behalf of Mr. Anal S. Shah for the respondent No.3 - Insurance Company has submitted that the impugned judgment and award passed by the Tribunal is just and proper by considering various aspects of the income, more particularly, the future rise in the income, and

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the Tribunal has rightly considered Rs.6,500/- as an average income. Further, deduction of 1/3rd for future dependency is Rs.4,350/-, which is found just and proper. The multiplier is also considered 14 at the relevant point of time, as per the decision of the Hon'ble Apex Court in the case of U.P. State Road Transport Corp. Vs. Trilok Chandra reported in (1996) 4 SCC 362 etc. and the Tribunal has rightly award Rs.10,000/- towards loss of estate and Rs.10,000/- towards loss of love and affection and Rs.3,000/- towards funeral expenses by considering the scenario in the year 1991. Therefore, there is no infirmity or illegality committed by the Tribunal in considering the amount of compensation in the facts and circumstances of the present case. Therefore, he prays that the present appeal may be dismissed as the Tribunal has awarded just and proper compensation.

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988, which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although, such determination can never be arithmetically exact or perfect, an endeavor should be made

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by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

6. I have considered the submissions of rival parties. I have perused the record and proceedings. After considering the decisions of the Hon'ble Apex Court in the case of Pranay Sethi (supra) and Sarla Verma & Ors. (supra) and after considering the aspect that at the time time of accident, deceased was earning Rs.3,000/- p.m. and therefore, to the extent 50% is required to be added towards prospective income as the deceased was aged about 35 years at the time of accident and therefore, Rs.4,500/- p.m. should be considered towards future loss of income and from the actual monthly income, Rs.1,125/- is required to be deducted as the 1/4th deduction, which is required to be made looking to the number of dependents in the present case, therefore, towards loss of dependency Rs.3,375/- p.m. is to be considered. Further, the Tribunal has erred in not considering any amount towards loss of managerial capacity of agriculture activity, which is required to be considered as per various judgments noted above. Therefore, towards loss of managerial capacity of agriculture activity, Rs.3,000/- p.m. is required to be considered. Therefore, the monthly income comes to Rs.6,375/- and annual loss of dependency comes to Rs.75,500/- and the Tribunal has also committed error in adopting multiplier of 14, which should be 16 in view of the

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age of the deceased and therefore, considering multiplier of 16, the amount towards future loss of income would come to Rs.12,24,000/-. Further, the Tribunal has committed error in not considering the amount towards loss of consortium, looking to four dependents as Mohanbhai Amthabhai Patel was deleted at Exh.70 and therefore, total Rs.1,60,000/- is required to awarded by considering Rs.40,000/- each of the dependents towards loss of consortium as per the decision of the Hon'ble Apex Court in the case Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram (supra). I found just and proper to award Rs.15,000/- towards loss of estate and Rs.15,000/- towards loss of funeral expenses as per the decision of the Hon'ble Apex Court in the case of Pranay Sethi (supra). Therefore, total amount of compensation would come to Rs.14,14,000/- as per the calculation made in the present appeal. The Tribunal has already awarded Rs.7,53,800/- and therefore, Rs.6,60,200/- is required to be paid additionally. Therefore, the present appeal is required to be allowed by re- calculating the amount as under:

Sr.No.             Compensation under                   Amount
                     different heads
   1.              Future loss of income              Rs.12,24,000/-
   2.               Loss of Consortium                Rs.1,60,000/-
   3.                 Loss of Estate                  Rs.15,000/-
   4.                Funeral Expenses                 Rs.15,000/-

Total amount of compensation = Rs.14,14,000/-

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7. In view of above, the following order is passed.

7.1 The present Appeal is partly allowed.

7.2 The impugned judgment and award passed by the Tribunal in Motor Accident Claim Petition is hereby modified to the extent Rs.14,14,000/- by enhancing the amount of Rs.6,60,200/- to the claimants with 9% p.a. interest, holding opponent Nos.1 to 3 liable, jointly and severally.

7.3 The claimants are entitled to get additional amount of Rs.6,60,200/- with 9% p.a. interest from the date of claim petition till its realization.

7.4 The respondent - insurance company shall deposit the said additional amount of Rs.6,60,200/- with 9% p.a. interest from the date of claim petition till its realization within a period of six weeks from today.

7.5 On depositing of such amount, the concerned Tribunal shall disburse the entire amount to the claimants, lying in the FDR and/or with the Tribunal, by following due procedure, by way of account payee cheque, after proper verification.

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7.6 While paying the entire awarded amount to the claimants, the Tribunal shall deduct the deficit Court Fees, in accordance with the law/rules.

7.7 Record and Proceedings be sent back to the concerned

Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA