Gujarat High Court
The New India Assurance Company ... vs Munendrakumar Jaypalsingh Jhatt on 14 December, 2022
Bench: Umesh A. Trivedi
C/FA/789/2018 ORDER DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 789 of 2018
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
MUNENDRAKUMAR JAYPALSINGH JHATT & 4 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 5
MR IMTIYAZ I MANSURI(9159) for the Defendant(s) No. 1,2
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 1,2
TIRTH NAYAK(8563) for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 14/12/2022
ORAL ORDER
1. This appeal, under Section 173 read with Section 166 of
the Motor Vehicle Act, 1988, is filed challenging the judgment
and award passed by the Motor Accident Claims Tribunal
(Aux.), CBI Court No.5, Ahmedabad dated 03.11.2017 in MACP
No. 121 of 2011, whereby claimants have been awarded an
amount of Rs.8,59,500/- with interest at the rate of 8% from
the date of application till realization, with proportionate cost,
contending it to be on a higher side.
2. The claimants, who are parents of deceased - Paresh,
filed aforesaid claim petition before the Tribunal contending
that on 09.10.2010, at morning hours, while going for service
C/FA/789/2018 ORDER DATED: 14/12/2022
at Vatva, GIDC by plying his bicycle near CTM crossroad, a
Truck bearing Registration No.HR-46-A-7334 driven by
Munendrakumar Jaypalsingh Jhatt, rashly and negligently,
dashed his bicycle, and therefore, deceased - Paresh received
serious injuries. He was taken to L.G. Hospital, Ahmedabad for
medical treatment and he succumbed to the injuries later on.
3. The claimants are the parents of deceased - Paresh,
who was aged about 22 years at the time of incident and
unmarried, as they have lost their bread-earner and claimed
Rs.10 Lacs towards the compensation.
4. Mr. Vibhuti Nanavati, learned advocate for the appellant,
submitted that though there is no dispute about the
determination of his monthly earning based on the evidence
led before the Tribunal, addition of prospective earning at the
rate of 50% of monthly earning is objected to based on a
decision of the Supreme Court that it should be 40% because
of the fact that his services were not permanent in nature, and
therefore, calculating the same at the rate of 40% would come
to Rs.6,600/- per month. Therefore, according to his
submission, it may materially affect the calculation of
compensation awarded to the claimants.
C/FA/789/2018 ORDER DATED: 14/12/2022
4.1 He has further submitted that so far as multiplier is
concerned, considering the age of deceased and parents being
claimants, in view of recent decision of the Supreme Court in
the case of R. Valli and ors. v. Tamil Nadu State
Transport Corporation Ltd., reported in 2022 (5) SCC 107,
he is unable to dispute the multiplier applied. Therefore, he
has submitted that appeal is required to be partly allowed
based on the aforesaid earning of the deceased at the time of
his death calculating the same on that basis.
5. As against that, Mr. Tirth Nayak, learned advocate for
the respondents - claimants submitted that towards loss of
consortium, nothing has been awarded to the claimants but as
a conventional amount, Rs.75,000/- has been awarded,
whereas it should be Rs.80,000/- towards loss of filial
consortium and Rs.15,000/- each, towards funeral expenses as
also the loss to the estate. Therefore, according to his
submission, even if the monthly earning is altered, as argued
by the learned advocate for the appellant, there may not be
any much difference, and therefore, no interference in the
judgment and award passed by the Tribunal is required and
the appeal is required to be dismissed.
C/FA/789/2018 ORDER DATED: 14/12/2022
6. Having heard learned advocates for the appearing
parties and considering the fact that for determining
prospective earning, 50% amount is added to his monthly
earning should be considered at the rate of 40% as he was not
in a permanent or a secured job. Taking that amount at 40%,
the monthly earning of the deceased would come to Rs.6,650/-
and deducting half from the said amount towards his personal
expenses, it would come to Rs. 3,325/- per month and
multiplied by 12 and it would come to Rs.39,900/- per annum,
required to be multiplied with 18, as a multiplier dependency
loss would come to Rs.7,18,200/-
7. Since no amount is awarded towards filial consortium
and instead conventional amount is awarded, adding Rs.
80,000/- to the said figure towards filial consortium to the
parents of the deceased, it would come to Rs.7,98,200/- with
further addition of Rs.15,000/- each for funeral expenses and
loss to the estate, it would come to Rs.8,28,200/-. Therefore,
considering the submission made by the learned advocate for
the appellant, total amount of compensation required to be
awarded comes to Rs.8,28,200/- instead of Rs.8,59,500/-,
arrived at by the Tribunal, and therefore, to that extent, the
appeal is required to be partly allowed.
C/FA/789/2018 ORDER DATED: 14/12/2022
8. In view thereof, the claimants are entitled to
compensation of Rs.8,28,200/- with simple interest at the rate
of 8% with proportionate cost.
9. It is reported that the amount of compensation is
already deposited. Considering the amount arrived at as
awardable to the claimants, remaining amount with
proportionate interest and cost from the deposit made which
would come to Rs.31,300/-, be refunded to the Insurance
Company within a period of three months from the date of
receipt of either the Writ of this Court or an application made
by the Insurance Company, whichever is later.
In view thereof, this appeal stands partly allowed to the
aforesaid extent.
(UMESH A. TRIVEDI, J.)
Raj
