Gujarat High Court
Laliben Kishansing Rajput vs Durvesh Ishak Mohmed on 30 August, 2022
Bench: Gita Gopi
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2166 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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LALIBEN KISHANSING RAJPUT
Versus
DURVESH ISHAK MOHMED
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1,2
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/08/2022
ORAL JUDGMENT
1. By way of this Appeal, the Appellants (original
claimants) have challenged the judgment and award
dated 11.10.2019 passed by the learned Motor
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
Accident Claims Tribunal (Main), Mahisagar at
Lunawada in M.A.C.P. No.426 of 2017 on the ground
that the income of the deceased has not been
computed in accordance with the evidence on record
as the deceased was managing a Hotel and Kitchen.
2. Learned Advocate for the appellants Mr. Makbul I.
Mansuri has submitted that the prospective rise in
income has not been considered. It is further
submitted that the consortium amount has not been
granted taking into consideration the decision of the
Hon'ble Apex Court in the case of Magma General
Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram
reported in 2018 ACJ 2782 and therefore, the present
Appeal has been filed.
3. Learned Advocate for the respondent No.3 -
Insurance Company Mr. V.C. Thomas submitted that
there is nothing on record to show by way of cogent
evidence that the deceased was serving in a Hotel
and no evidence has been given for any prospective
rise in income. Therefore, it is submitted that the
compensation awarded by the learned Tribunal is just
and proper.
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
4. The brief facts of the case are that on 10.03.2001 at
about 4.30 am, the deceased was going from his
room to Shiv Shakti Hotel, Signali, Taluka Lunawada.
At that time, the respondent No.1 came driving a
Jeep bearing Registration No.GJ-6-A-2794 in a rash
and negligent manner and with excessive speed and
dashed with the deceased. The deceased sustained
serious injuries and succumbed thereafter. Therefore,
the appellants filed the Claim Petition for an amount
of Rs.8,56,000/- from the respondents under all the
Heads.
5. Having heard learned Advocates for the respective
parties and on perusing the records of the case, it is
clear that the learned Tribunal has granted total
compensation of Rs.4,50,800/- with interest @ 7.5%
per annum. The income of the deceased was stated
to be earning Rs.600/- per month from the
management of the Hotel and Kitchen. Admittedly, no
evidence has been produced to show the income of
the deceased. The appellant No.2 in the cross
examination has admitted that the deceased was
earning Rs.2,000/- per month at the time of accident.
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
Further, this Court would appreciate the fact that the
widow would not be in a position to know the exact
income of the husband since she did not have any
documentary evidence to corroborate the said fact.
The date of accident is 10.03.2001 and since there is
no denial to the claim of the deceased to manage the
Hotel, in absence of any documentary evidence, this
Court deems it fit to grant Rs.3,000/- per month as
income of the deceased. Keeping in mind the date
of accident, since the deceased was self-employed and
taking into consideration the age of the deceased as
recorded by the Tribunal between the age of 25-30
years, keeping in view the proposition of law as laid
down by the Apex Court in the case of National
Insurance Company Limited v. Pranay Sethi and
Others reported in 2017 16 SCC 680, since the
deceased fell in the age group below 40 years, 40%
rise in future prospective income is required to be
granted. Accordingly, the income would be assessed
as Rs.4,200/- per month (i.e. Rs.3,000/- + Rs.1,200/-)
Since there are two dependents of the deceased, one-
third amount is required to be deducted towards
personal expenses. Hence after deduction (1/3rd of
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
Rs.4,200/-) would come to Rs.2,800/-. The yearly
income would therefore, come to Rs.33,600/-
(Rs.2,800/- x 12 months). Applying the multiplier of
17, the amount would be Rs.5,71,200/- (Rs.33,600/- x
17) towards loss of dependency. The dependents
are the widow and mother of the deceased.
Therefore, in consonance with the decision in the
case of Magma General Insurance Co. Ltd. (supra),
consortium amount is required to be granted @
Rs.40,000/- each. Hence, the total consortium
amount would be Rs.80,000/- The learned Tribunal
has granted Rs.15,000/- towards loss of affection but
taking into consideration the decision of the Hon'ble
Apex Court in the case of United India Insurance Co.
Limited v. Satinder Kaur @ Satwinder Kaur and
Others reported in 2020 SCC Online SC 410, the
decision in the case of Satinder Kumar, no amount
would fall under the head of loss of love and
affection, since the same would get included under
the head of consortium amount. Relying on the
decision in the case of Pranay Sethi and Others
(supra), Rs.15,000/- each is awarded under the heads
of loss of estate and funeral expenses. Thus, the
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
total compensation in this manner would come to
Rs.6,81,200/-. Thus, the computation can be made as
under :-
Details Amount (Rs.)
Income per month @ Rs.3,000/- 3,000/-
40% prospective rise in income @ + 1,200/-
Rs.1,200/-
4,200/-
1/3rd deduction towards personal - 1,400/-
expenses
2,800/-
Yearly Income : Rs.2,800/- x 12 33,600/-
Applying the multiplier of 17 5,71,200/-
(Rs.33,600/- x 17)
Consortium (Rs.40,000 x 2 80,000/-
claimants)
Loss of estate and funeral expenses 30,000/-
(@ Rs.15,000/- under each head)
TOTAL AMOUNT 6,81,200/-
6. The learned Tribunal has awarded an amount of
Rs.4,50,800/- with rate of interest @ 7.5% per
annum, which the Insurance Company is liable to
deposit, with the enhanced amount as Rs.2,30,400/-
(Rs.6,81,200/- minus Rs.4,50,800/-). In the result,
the present respondent No.3 is directed to deposit the
C/FA/2166/2022 JUDGMENT DATED: 30/08/2022
amount within a period of ten (10) weeks from the
date of receipt of writ of the order of this Court. It is
further directed that the claimants would be entitled to
receive the enhanced compensation @ 7.5% per annum
from the date of the application and the disbursement
of the amount be made as per the judgment and
award of the learned Tribunal.
7. In view of the above, the Appeal is allowed and the
judgment and award dated 11.10.2019 passed by the
learned Motor Accident Claims Tribunal (Main),
Mahisagar at Lunawada in M.A.C.P. No.426 of 2017
stands modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
