New India Assurance Co. Ltd vs Sunita V Chauhan
2022 Latest Caselaw 10043 Guj

     C/FA/722/2018                               JUDGMENT DATED: 14/12/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 722 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

==================================================

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 ?

==================================================
                     NEW INDIA ASSURANCE CO. LTD.
                                Versus
                     SUNITA V CHAUHAN & 3 other(s)
==================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR VISHAL C MEHTA(6152) for the Defendant(s) No. 2,3,4
RULE UNSERVED for the Defendant(s) No. 1
==================================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                            Date : 14/12/2022

                            ORAL JUDGMENT

1. This Appeal is filed under Section 173 read with Section 166 of the Motor Vehicles Act, 1988, challenging the judgment and award passed by the Additional Sessions Judge, Court

C/FA/722/2018 JUDGMENT DATED: 14/12/2022

No.10, City Civil & Sessions Court, Ahmedabad City, acting as a Motor Accident Claim Tribunal (Auxiliary), dated 13.07.2017 rendered in Motor Accident Claim Petition (M) No.13 of 2005, whereby claimants were awarded Rs.10,75,000/- compensation in all with simple interest @ 9% per annum, contending it to be on a higher side.

2. On 24.12.2004, Ganpatbhai, husband of claimant No.1 - Mrs. Rekhaben Ganpatbhai Parmar, while driving his own motorcycle at about 2:00 p.m., passing near Sarkhej - Ujala Circle by following traffic rules, Driver of container No.GJ-1-VV- 9075, owned by Mrs. Sunita Chauhan, drove it in a rash and negligent manner coming from wrong-side dashed with the motorcycle of the deceased and because of which, deceased sustained several injuries, to which he succumbed thereafter. For the said accident, an FIR was registered with Sarkhej Police Station being I-C.R.No.261 of 2004.

2.1 As claimed in the Claim Petition, at the time of accident, deceased - Ganpatbhai was aged about 22 years and he was serving in Shreeram Engineering and earning Rs.7,500/- p.m. On account of the death of the sole breadwinner, claimants are rendered destitute and they have to incur loss, expenditure towards after death ceremony and thereafter, wife of the deceased, son of the deceased, who was 4 months' at the time of Claim Petition, and mother of the deceased had filed the aforesaid Claim Petition claiming Rs.12,00,000/- before the Tribunal.

       C/FA/722/2018                         JUDGMENT DATED: 14/12/2022




2.2     The Tribunal by aforesaid judgment and award, awarded

under different heads in all Rs.10,75,500/- towards the compensation with simple interest of 9% per annum.

3. Mr. Vibhuti Nanavati, learned advocate for the Appellant - Insurance Company submitted that the monthly earning determined by the Tribunal to be Rs.5000/- of the deceased, is without any material on record. He has further submitted that though in a Claim Petition it is claimed that deceased was serving with Shreeram Engineering, none is examined to prove his earning at the rate of Rs.7500/- p.m. But, at the same time, in absence of any reliable material on record determining Rs.5000/- as monthly income, is also on a higher side considering even the minimum wages as on the date of the accident, which should be Rs.4000/- instead Rs.5000/-. He has further submitted that though the certificate of income came to be issued by Shreeram Engineering on its letter pad, which is exhibit -25, but to support the same, none from Shreeram Engineering was examined and therefore, what is claimed in the certificate is not awarded by the Tribunal; which is correct one but the guesswork that person who is working on a lathe machine must be earning Rs.5000 p.m. is not supported by even any other material, like minimum wage.

3.1 However, so far as multiplier applied is concerned, there is no dispute by the appellant before this Court. Accordingly, he

C/FA/722/2018 JUDGMENT DATED: 14/12/2022

submitted that this Court may consider the monthly earning of the deceased at the time of accident based on minimum wage at the rate of Rs.4000 p.m. prevailing at the time of accident and recalculate the same and accordingly, allow the appeal.

4. As against that, Mr. Vishal Mehta, learned advocate for respondent Nos.2 to 4 - original claimants submitted that even if on a guesswork, earning of the deceased is considered to be Rs.5000 at the time of accident, it is, as such, not on higher side and therefore, no interference in the present appeal is required by this Court. Accordingly, he has submitted that if at all on that count interference in this appeal is required, then in view of the latest decision of the Supreme Court towards the loss of estate, consortium, funeral expenses etc., compensation is required to be enhanced and ultimately, it would come to the same amount of compensation, as awarded by the Tribunal, and therefore, he requests that this appeal may be dismissed.

5. Having heard the learned advocates for the appearing parties and going through the impugned judgment and award as also the records and proceedings, it appears that claiming, earning of Rs.7500/- p.m. of the deceased based on certificate of income, exhibit -25, issued by Shreeram Engineering is concerned, no any person is examined to prove that earning of the deceased. Therefore, merely document is exhibited, it cannot be taken as a proved document and based on that, Tribunal has rightly not determined the monthly income of the deceased - Ganpatbhai at the rate of Rs.7500/- p.m. However,

C/FA/722/2018 JUDGMENT DATED: 14/12/2022

while considering the monthly earning of Ganpatbhai - deceased at the rate of Rs.5000/- based on the guesswork, there is no other material taken into consideration as a guide to determine the same. But, as rightly pointed out by the learned advocate for the appellant and not disputed by the claimants that at the relevant time, if monthly income based on minimum wage on the date of accident is considered, it would come to Rs.4000/-p.m. and not even Rs.5000/- p.m., as determined by the Tribunal. As such, in absence of proof of earning of the deceased, minimum wage prevailing at the time of accident would be a valid guide so as to come to a primary conclusion that a person earns even minimum wage who has liability of his mother and a child along with the wife. So in absence of any material produced to support the claim of monthly earning, finding recorded by the Tribunal at the rate of Rs.5000/- as earning, requires to be interfered with and it is required to be replaced to Rs.4000/- based on minimum wage per month prevailing at the time of accident.

6. Now, taking earning of the deceased to be Rs.4000/- p.m., his prospective earning would come to Rs.6000/- p.m. and deducting 1/3 from the said amount towards personal expenses, it would come to Rs.4000/-p.m. and yearly it would come to Rs.48,000/-. Considering 17 multiplier to be proper, loss of dependency would be Rs.8,16,000/-. However, towards the loss of consortium, only Rs.25,000/- is awarded by the Tribunal but considering three claimants, such as wife, minor son and

C/FA/722/2018 JUDGMENT DATED: 14/12/2022

mother, it should be Rs.1,20,000/-, then it would come to Rs.9,36,000/-. Towards the loss of estate and funeral expenses, if Rs.15,000/- each is added to it, it would come to Rs.9,66,000/-.

7. Thus, in my view, instead of total compensation awarded to be Rs.10,75,500/-, it is required to be reduced by allowing the appeal to the aforesaid extent and now, claimants would be entitled to Rs.9,66,000/- towards compensation, as aforesaid, with simple interest @ 9% per annum. Considering the amount of compensation, the claimants are entitled to Rs.9,66,000/- with proportionate cost and simple interest @ 9% per annum.

8. Since amount of compensation, as awarded by the Tribunal, is already deposited, the Tribunal is directed to refund the balance amount with proportionate cost and interest accordingly, through RTGS to the appellant within a period of three months, after receipt of the writ or the application of the Insurance Company, whichever is later.

9. Records and Proceedings be sent back to the concerned Tribunal. Hence, the appeal is partly allowed to the aforesaid extent.

(UMESH A. TRIVEDI, J) Lalji Desai