Jyotsnaben Tulsidas Purohit vs Prafulbhai Muljibhai Jhala
2022 Latest Caselaw 4264 Guj

     C/FA/1294/2015                               JUDGMENT DATED: 20/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1294 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                 JYOTSNABEN TULSIDAS PUROHIT & 2 other(s)
                                Versus
                  PRAFULBHAI MULJIBHAI JHALA & 1 other(s)
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Appearance:
MS JK HINGORANI(2491) for the Appellants - ori. claimants
MR SHIVANG SHAH, ADVOCATE for
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2 - insurance co.
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 20/04/2022

                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being aggrieved and dissatisfied with the common judgment and award dated 09.12.2014 passed by the Motor Accident Claims Tribunal

C/FA/1294/2015 JUDGMENT DATED: 20/04/2022

(Aux.), Junagadh in Motor Accident Claim Petition No. 279 of 2010, by which the Tribunal has awarded compensation of Rs. 3,37,480/- with 9% per annum interest to the claimants, holding Opponents i.e. driver-cum-owner and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 06.05.2010 at about 7:30 p.m., when deceased - Tulshidas and his son were going on pedestrian road towards Junagadh- Zanzarka Chokdi, at that time, near Anmol Appartment, one Truck bearing registration No.GTP-5123 came from opposite side in rash and negligent manner and in endangering human life and dash with the deceased. Due to that, deceased received serious injuries and when he was shifted to the hospital, he succumbed to the injuries meanwhile. Therefore, the claim petition is filed by the claimants - heirs of the deceased to get the compensation of Rs.15 lakhs with interest.

2.2 Notices were served to the opponents i.e. driver-cum-owner and insurance company of the Truck. Opponent No.3 - insurance company of the Truck has filed its written statement at Exh.13 by disputing all the averments made by the claimant in the claim petition and also disputed the liability.

2.3 The Tribunal has framed the issues at Exh.15. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4     Being aggrieved and dissatisfied with the impugned judgment






      C/FA/1294/2015                           JUDGMENT DATED: 20/04/2022

and award passed by the Tribunal, the present appeal is preferred by the claimants for enhancement.

3. Learned advocate for the appellant claimants has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount awarded is on lower side as the Tribunal has not properly considered the various aspects; like pension / income of the deceased, dependents members, age of the deceased, etc. The deceased was a retired engineer and was getting monthly pension of Rs.12,205/- per month. The Tribunal has erred in considering the monthly income of the deceased Rs.7,323/- only, though there is documentary evidence available on record which suggests the monthly income of the deceased Rs.12,205/-. He has submitted that the deceased was doing extra work and earning more. Therefore, he has submitted that the monthly income of the deceased should be considered more. He has further submitted that the Tribunal has not properly considered multiplier which is 4, as it should be higher side and would be 9. He has further submitted that prospective income is also not properly considered by the Tribunal. He has submitted that the Tribunal has deducted 1/3rd amount, which should be 1/4 th looking to the four dependents. He has further submitted that under the head of consortium, loss of estate and funeral expenses also, the Tribunal has not properly considered the amount as it is required to be more in view of the decisions of Hon'ble Apex Court in the case of :- (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130. (ii) National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780 and (iv) New India Assurance Co. Ltd. v. Somwati and others,

C/FA/1294/2015 JUDGMENT DATED: 20/04/2022

reported in 2020 (9) SCC 644. Therefore, he has submitted that the amount is required to be considered by enhancing the award.

4. Per contra, learned advocate for the insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased. He has further submitted that the Tribunal has rightly deducted 1/3 rd income looking to the dependency and in view of the decision of Hon'ble Apex Court in the case of National Insurance Company Limited versus Birender reported in 2010 (11) SCC 356. He has submitted that under the head of loss of love and affection and funeral expenses, the Tribunal has awarded Rs.20,000/- and Rs.5,000/-, respectively, which is just and proper. He has submitted that the appeal may be dismissed.

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

6. I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. From record it transpires that, deceased was an Engineer and was a pensioner and was earning Rs.12,205/- per month. The

C/FA/1294/2015 JUDGMENT DATED: 20/04/2022

Tribunal has committed an error by considering the income of Rs.6,510/- per month. The documentary evidence is on record, which indicates the income of the deceased Rs.12,205/- per month. In totality of the facts, I found that Rs.12,205/- is the amount of monthly income of the deceased which is to be considered as monthly income, which would be just and proper. Therefore, I consider Rs.12,205/- as monthly income and in view of the decision of Hon'ble Apex Court in the case of Pranay Shethi (supra), where 1/4th amount is required to be deducted in view of the decision of Hon'ble Apex Court in the case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, therefore, Rs.9,154/- would be the monthly income and multiplied by 12 months, it comes to Rs.1,09,848/- annually income, and by applying 9 multiplier, the amount would come to Rs.9,88,632/- towards loss of future prospective income. The decision relied by learned advocate for the insurance company of the Hon'ble Apex Court in the case of Birender (supra) is not applicable in the facts and circumstances of the case. It is correct to say that there are three dependents of the deceased, which is admitted and in view of the decisions of Hon'ble Apex Court in the case of : (i) Magma General Insurance Company Limited (supra) (ii) Satinder Kaur @ Satwinder Kaur (supra) and (iii) Somwati (supra), the amount of Rs.40,000/- is required to be awarded to each dependent and therefore, total Rs.1,20,000/- is required to be awarded towards loss of consortium to the dependent. As per the decision of Hon'ble Apex Court in the case of Pranay Shethi (surpa), Rs.15,000/- is required to be awarded towards loss of estate, Rs.15,000/- is required to be awarded towards funeral expenses. Therefore, total amount of compensation would come to Rs.11,38,632/-, which is required to be awarded with 9% p.a. interest from the date of claim petition till its realisation, which

C/FA/1294/2015 JUDGMENT DATED: 20/04/2022

would meet the ends of justice. The Tribunal has awarded Rs.3,37,480/- to the claimants, therefore, Rs.8,01,152/- is required to be enhanced with 9% p.a. interest.

6. For the reasons recorded above, the following order is passed.

6.1     The present appeal is allowed.

6.2     The Insurance Company is directed to deposit the enhanced

amount Rs.8,01,152/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

6.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimants, by account payee cheque, after proper verification and after following due procedure.

6.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.

6.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE