Gujarat High Court
Badharsinh Vaghabhai Bariya vs Rajnikant Ratansinh Patel on 22 April, 2022
Bench: Ashokkumar C. Joshi
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2640 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
Whether their Lordships wish to see the fair copy
3 No
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
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BADHARSINH VAGHABHAI BARIYA & 1 other(s)
Versus
RAJNIKANT RATANSINH PATEL & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 22/04/2022
ORAL JUDGMENT
1. This is an appeal under Section 173 of the Motor Vehicles
Act, 1988 arising out of the judgment and award dated
18.04.2012 rendered by the learned Motor Accident Claims
Tribunal, Dahod (the Tribunal) in Motor Accident Claim Petition
No. 576 of 2005 (claim petition), whereby, the Tribunal was
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
pleased to award compensation of Rs.1,54,500/- with interest at
the rate of 8% per annum from the date of claim petition till
realization and proportionate cost against the total claim of
Rs.7.5 lakh as claimed by the appellants - original claimants
towards the death of the deceased. Accordingly, the appellants
have preferred this appeal for enhancement of compensation.
2. Nutshell facts are that on 28.09.2005, the deceased was
travelling in a Jeep, which, as per the case of the claimants,
dashed with a tree due to rash and negligent driving of the driver
of the bus due to which, the deceased sustained grievous injuries
and eventually, succumbed to the injuries, for which, the
claimants filed the aforesaid claim petition claiming
compensation to the tune of Rs.7.5 lakh.
3. Heard, learned advocate Mr. MTM Hakim for the appellants.
Though served, none has appeared on behalf of the respondents.
4. The learned advocate for the appellants submitted that the
Tribunal has materially erred in awarding such a trivial amount of
Rs.1,54,500/- towards compensation for the death of the
deceased as against the claim of Rs.7.5 lakh. He submitted that
the Tribunal has gravely erred in exonerating the insurance
company from the liability to pay the compensation believing
that the deceased was travelling as a gratuitous passenger in a
private vehicle though there was nothing on record to
substantiate the said aspect. He further submitted that the
Tribunal has also erred in considering 1/3 rd amount towards
personal expenses. It is further submitted that the Tribunal has
erred in adopting the multiplier of 15 only.
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
4.1 The learned advocate for the appellants further submitted
that the Tribunal has further erred in awarding Rs.2,500/- only
towards loss of expectation of life and not awarding any amount
towards the loss of estate and loss of consortium. Moreover, it is
submitted that the Tribunal has also erred in awarding interest at
the rate of 8% per annum only.
4.2 Thus, making above submissions, it is urged that this
appeal may be allowed and amount of compensation may be
enhanced suitably.
5. Regard being had to the submissions made and considering
the impugned judgment and award so also the material available
on record vis-a-vis the settled legal position on the subject, it
appears that for the death of the deceased, the Tribunal has
awarded compensation of Rs.1,54,500/- under different heads.
The learned advocate for the appellants - claimants has
submitted that the Tribunal has awarded a meager amount under
different heads and/or not awarding any amount under the heads
of loss of estate and loss of consortium and in considering the
dependency deducting 1/3rd etc. Further, it is submitted that the
Tribunal has wrongly applied the multiplier of 15 only considering
the age of the deceased. In this regard, if the compensation
awarded by the Tribunal is referred to, it can be summarized as
under:
Head Amt. (Rs.)
Loss of Dependency Benefit 1,50,000/-
Loss of Expectation of life 2,500/-
Funeral Expenses 2,000/-
Total 1,54,500/-
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
5.1 In the aforesaid background, so far as the income of the
deceased is concerned, it was the case of the appellants -
claimants that the deceased was of 18 years of age and was
studying in 10th standard at the time of accident. For want of any
evidence qua lucency of the deceased, the Tribunal has
considered the notional income of the deceased at Rs.15,000/-
per annum and deducting 1/3rd towards personal expenses, has
considered the dependency benefits at Rs.10,000/- per annum. In
the opinion of the Court, the Tribunal has assessed the income of
the deceased on lower side, more particularly, when it was the
specific case of the claimants that the deceased was aged 18
years and had he been alive, he would have a bright future.
Accordingly, the Tribunal ought to have assessed the income of
the deceased at least to Rs.24,000/- per annum. Further, it
appears that the Tribunal has not considered the prospective
income of the deceased. As per the decision of the Apex Court in
National Insurance Co. Ltd. v. Pranay Sethi and Others,
MANU/SC/1366/2017, considering the age of the deceased of
18 years at the time of the accident, 40% is required to be added
towards future prospective income for the age group of the
deceased. Besides, considering the fact that the deceased was a
bachelor, 1/2 amount is required to be deducted towards
personal expenses of the deceased. Further, in view of age of
the deceased i.e. 18 years at the time of accident, as per the
decision in Sarla Verma (supra), a multiplier of 18 is required
to be adopted. Besides, as per the decision in Pranay Sethi
(supra), under the conventional heads viz. loss of estate, loss of
consortium (filial consortium to each claimant) and funeral
expenses, an amount of Rs.15,000/- Rs.40,000/- and Rs.15,000/-
respectively under each head is required to be awarded with 10%
rise every three years. The amount under the head of loss of
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
expectation of life is not warranted. Further, so far as interest
rate is concerned, considering the year of accident, nothing is
required to be done.
5.2 So far as the argument qua exonerating the insurance
company from the liability to pay the compensation is concerned,
the Tribunal has observed in paragraph 8 of the judgment and
award that admittedly, the deceased used to go to school daily
by paying fare. Further, there was nothing on record to show
that the deceased had obtained S.T. Bus Pass for students to
travel at a concessional rate. Further, it is also observed that, it
could be inferred that the deceased used to go to school in
private Jeep with other students and in the circumstances, the
fact of original opponent No. 2 was a relative of the deceased
could not be believed. Thus, considering all the aspects of the
matter, the Tribunal came to the conclusion that the deceased
was travelling in the Jeep as a gratuitous passenger/fare paying
passenger. The Court is in agreement with such conclusion
inasmuch as there is nothing on record to take a different view.
However, when the fact of existence of the insurance policy at
the time of accident is not in dispute, in the considered opinion of
the Court, it would be in the fitness of things if pay and recover is
ordered. Accordingly, the award is required to be modified to the
aforesaid extent.
5.3 Thus, in view of the above, present appeal requires to be
allowed and is accordingly, allowed in part. The appellant -
original claimants are entitled to following amount towards
compensation under different heads, and to that extent, the
impugned judgment and award is modified:
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
Head Granted by Required to be
Tribunal (Rs.) granted (Rs.)
Income of the 15,000/- 24,000/-
deceased p.a.
Add: - 9,600/-
Future Prospective @40%
Income
(A) 15,000/- 33,600/-
Minus: 5,000/- 16,800/-
Personal Expenses @ 1/3rd @ 1/2
Dependency 10,000/- 16,800/-
Benefit = (A)-(B)
Loss of Dependency 1,50,000/- 3,02,400/-
(10,000x15) (16,800x18)
Loss of Estate -- 16,500/-
Loss of Consortium -- 88,000/-
(filial consortium)
Funeral Expense 2,000/- 16,500/-
Loss of Expectation 2,500/- -
of Life
Total 1,54,500/- 4,23,400/-
Compensation
Enhanced 2,68,900/-
compensation
R/o. 2,70,000/-
5.4 Thus, the claimants shall be entitled for compensation of
Rs.4,23,400/- towards the death of the deceased. Further, the
claimants shall be entitled for simple interest at the rate of 6%
per annum on enhanced amount of compensation viz.
Rs.2,70,000/-from the date of award.
5.5 At this juncture, it would be worthwhile to refer to a
decision of the Apex Court in the case of Manuara Khatun and
Others v. Rajesh Kr. Singh and Others,
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
MANU/SC/0194/2017, wherein, while allowing the appeal, the
Court has held as under:
"(i) The question remained no more res integra. It was
subject matter of several decisions of the present Court
rendered by three Judge Bench and two Judge Bench in
past. It was held on facts that since the victim was
travelling in offending vehicle as "gratuitous passenger"
and hence, the Insurance Company cannot be held liable to
suffer the liability arising out of accident on the strength of
the insurance policy. However, the present Court
keeping in view the benevolent object of the Motor
Vehicle Act, 1988 and other relevant factors arising
in the case, issued the directions against the
Insurance Company to pay the awarded sum to the
Claimants and then to recover the said sum from the
Insured in the same proceedings by applying the
principle of "pay and recover". [16]
(ii) Merely because the compensation had not yet been
paid to the Claimants though the case was quite old, it
could not be a ground to deny the Claimants the relief
claimed. The present Court already considered and rejected
the argument regarding not granting of the relief of the
nature claimed due to pendency of the reference to a
larger Bench. [20]
(iii) The direction was issued to Insurance Company, they
being the Insurer of the offending vehicle which was found
involved in causing accident due to negligence of its driver,
to first pay the awarded sum to the Appellants and then to
recover the paid awarded sum from the owner of the
offending vehicle. [22]"
5.6 In a latest decision of the Apex Court in Kurvan Ansari
and Others v. Shyam Kishore Murmu and Others,
MANU/SC/1068/2021, the Court confirmed the pay and recover
order passed by the Tribunal.
5.7 The Coordinate Bench in a recent decision in Oriental
Insurance Company Ltd. v. Vipul R. Brahmbhatt, MANU/GJ/
1405/2021, also, while holding the person travelling as
C/FA/2640/2012 JUDGMENT DATED: 22/04/2022
gratuitous passenger, exonerated the insurance company from
the liability to pay the compensation, however, principal of pay
and recover was also applied in the same.
5.8 In that view of the matter, the respondent No. 3 - insurance
company shall first pay the awarded amount and then can
recover the same from the respondent Nos. 1 and 2.
5.9 The rest of the judgment and award shall remain intact.
R&P, if received, be sent back forthwith.
[ A. C. Joshi, J. ]
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