Gitaben W/O Ashwinbhai ... vs Khalibhai Kakubhai Pinjara
2022 Latest Caselaw 10060 Guj

     C/FA/3112/2017                                 JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 3112 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1    Whether Reporters of Local Papers may be allowed                      No
     to see the judgment ?

2    To be referred to the Reporter or not ?                               No

3    Whether their Lordships wish to see the fair copy                     No
     of the judgment ?

4    Whether this case involves a substantial question                     No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                 GITABEN W/O ASHWINBHAI NAGARBANDHARA & 4 other(s)
                                           Versus
                        KHALIBHAI KAKUBHAI PINJARA & 3 other(s)
==============================================================================
Appearance:
MR JAGDHISH SATAPARA(5524) for the Appellant(s) No. 1,2,3,4,5
MS ARCHANA P PATEL(5430) for the Appellant(s) No. 1,2,3,4,5
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
                     Date : 14/12/2022
                     ORAL JUDGMENT

1. By way of this First Appeal, the appellant has challenged the common award dated 12.08.2016 passed by the Motor Accident Claims Tribunal (Auxiliary), Vadodara in MACP No.1675 of 2001 passed below Exhibit-160.

2. Heard learned advocate Ms. Archana P. Patel for the appellants and learned advocate Mr. Yogi K. Gadhia for the respondent No.3 i.e. Insurance Company.

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3. Since the award is challenged on the ground that the amount awarded by the Tribunal is not in accordance with latest law of the land, and therefore, some amount awarded by the Tribunal is awarded less than what the appellants are entitled to, and therefore, the present appeal is preferred.

4. It is the case of the claimants that the injured/deceased were traveling in S.T. Bus No.GJ-18-V-4968. Its scheduled route was via Vadodara-Dabhoi. Thus, S.T. Bus was proceeding towards Dabhoi. As soon as the S.T. Bus reached near the place of accident i.e. between Village Palaswada and Village Bhilapur, at that time, the opponent No.1 came from opposite direction by way of driving the Motor Truck No.GJ-16-U-8958. The Truck was in excessive and uncontrollable speed. Manner of driving was rash and negligent. The Truck intruded into the wrong side of the road. Therefore, it collided with the oncoming S.T. Bus. As a result of which, this unfortunate accident has occurred. Therefore, the claimants have sought compensation from all the opponents.

5. The opponents before the Tribunal filed the written statements, have denied all the facts and averments made in the Claim Petitions, and contended that the accident had occurred due to sole negligence of the rival opponents. However, the learned Tribunal decided the claims and found that the claimants/deceased sustained bodily injury due to rash

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and negligence on the part of the driver involved in the accident that the claimants are entitled for the compensation considering the fact this appeal is preferred by the claimants for enhancement of the aforesaid findings are not under challenge, and therefore, the appeal is required to be decided only by examining quantum of amount awarded by the Tribunal.

6. On examination of the evidence the tribunal held that the claimants are entitled to get the following amount of compensation:-

9,39,372/- Towards future loss of dependency benefit 5,000/- Towards funeral expenses 10,000/- Towards loss of consortium 10,000/- Towards loss of estate 9,64,372/- Total Compensation

7. Learned advocate Ms. Archana Patel appearing for the appellants while canvassing the case for enhancement of the awarded amount, however, could not point out any material to that effect that the amount of Rs.9,39,372/- awarded by the Tribunal towards future loss of dependency benefits has been awarded by the Tribunal is error of law, and hence, she submitted that apart from future loss, quantum of funeral expenses, loss of consortium and loss of estate are as per the settled proposition of law, and therefore, this aspects are

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examined by this Court by way of this appeal.

8. By relying upon the judgment in the case of National Insurance Company v. Pranay Shetty reported in (2017) 16 SCC 680, she submitted that funeral expenses, loss of consortium and loss of estate, the amount awarded by the Tribunal is Rs.5,000/- and Rs.10,000/- respectively, however, in the judgment of Pranay Shetty (supra), the Hon'ble Supreme Court held that an amount of Rs.15,000/- should be awarded towards funeral expenses and loss of estate, therefore, aforesaid amount is required to be modified by enhancing the amount of award towards funeral expenses to the tune of Rs.15,000/- under each head. She further submitted that for the purpose of loss of consortium, learned advocate Ms. Patel submitted that as held by the Hon'ble Supreme Court in the case of Megma General Insurance Company Limited v. Nanu Ram alia Chuhru Ram reported in 2018 (18) SCC 130, each of the dependent of deceased person would be entitled to an amount of Rs.40,000/- towards loss of consortium considering the fact of the present appellant that the dependent persons are 5 in number, an amount towards loss of consortium awarded to the tune of Rs.10,000/- is erroneous and the same is required to be enhanced by awarding an amount of Rs.40,000/- each. By making the aforesaid submissions, she prayed for allowing the appeal.

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9. Learned advocate Mr. Yogi K. Gadhia appearing for the respondent vehemently opposed the award passed by the Tribunal and submitted that the amount of award is just, legal and proper in accordance with law of land. He submitted that while awarding the aforesaid amount, the Tribunal has taken into consideration all the evidence on record and the ratio laid down by the Hon'ble Supreme Court in various decisions pronounced which are considered at the time of passing the award, the learned Tribunal has rightly awarded the amount towards funeral expenses, loss of consortium and loss of estate.

10. I have considered the submissions made by the learned advocate for the respective parties and also the award of tribunal and the judgments relied upon by the learned advocate Ms. Patel. While considering the case for compensation towards the funeral expenses and loss of estate in the case of National Insurance Company v. Pranay shetty in paragraph No.59(viii), the Hon'ble Supreme Court has held as under:-

"59(viii). Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

11. The aforesaid observations made by the Hon'ble Supreme Court support the submissions of learned advocate Ms. Patel

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for funeral expenses and loss of estate that the compensation towards funeral expenses and loss of estate has not been awarded by the tribunal in accordance with the law laid down by the Hon'ble Supreme Court and the same are required to be enhanced from Rs.5,00/- to Rs.15,000/- and from Rs.10,000/- to Rs.15,000/- towards funeral expenses and loss of estate.

12. As far as compensation awarded towards loss of consortium is concerned, she relied upon the judgment in the case of of Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram, wherein, in paragraph No.21 to 27 the Hon'ble Supreme Court has observed as under and immediately awarded an amount of Rs.40,000/- each towards loss of consortium. Paragraph No.21 to 27 reads thus:-

"21. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

21.1 Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every

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conjugal relation."

21.2 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

21.3 Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid

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down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.

25. In light of the above mentioned discussion, Respondent Nos. 1 and 2 are entitled to the following amounts:-

  Head                              Compensation awarded
  i. Income:                        Rs. 6,000
  ii. Future Prospects:             Rs.2,400 (i.e.40% of the
  income)
  iii.   Deduction     towards    personal    expenditure: Rs.

2,800[i.e.1/3rd of (Rs.6,000 + Rs.2,400) iv. Total Income: Rs.5,600 [i.e. 2/3rd of (Rs.6,000 + Rs.2,400]

vi. Loss of future income: Rs. 12,09,600 (Rs.5,600 x 12 x18) vii. Loss of love and affection: Rs. 1,00,000 (Rs. 50,000 each) viii. Funeral expenses: Rs. 15,000 ix. Loss of estate: Rs. 15,000 x. Loss of Filial Rs. 80,000 (Rs. 40,000 payable to each of Respondent Nos.1 and 2) Total compensation awarded: Rs. 14,25,600 alongwith Interest @ 12% p.a. from the date of filing of the Claim petition till payment.

Out of the amount awarded, Respondent No.1 is entitled to 60% while Respondent No.2 shall be granted 40% alongwith Interest as specified above.

26. The Insurance Company and Respondent No. 3 are held jointly and severally liable to pay the compensation awarded. The Appellant - Insurance Company will pay the full amount of compensation awarded hereinabove to Respondent Nos. 1 and 2 and can recover 50% of the amount from Respondent No. 3.

27. The appeal is disposed of in the above terms."

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13. In view of the aforesaid judgment, the appellants have claimed compensation towards loss of consortium should be awarded at the rate of Rs.40,000/- per surviving of dependent, however, learned advocate Mr. Gadhia drew the attention of this Court that the Hon'ble Supreme Court has observed that it would be in the fact of the present case only but learned advocate Ms. Patel submitted that after the aforesaid judgment, question of loss of consortium has arisen consistently. By virtue of the aforesaid judgment, Rs.40,000/- awarded uniformly in the case, and therefore, which Mr. Gadhia could not dispute, and the loss of consortium is also required to enhance from Rs.10,000/- to Rs.40,000/- and there are 5 dependent and the said amount of award would be Rs.2,00,000/-.

14. In view of the above discussion after considering the submissions made by learned advocate for the parties, this Court is of the view that the present appellants are entitled to get following amount of enhanced compensation:-

9,39,372/- Towards future loss of dependency benefit 15,000/- Towards funeral expenses 2,00,000/- Towards loss of consortium 15,000/- Towards loss of estate 11,69,372/- Total Compensation

15. In view of the above, the present appeal is partly allowed.

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16. Record and Proceedings is order to be sent back to the concerned trial Court.

17. The respondent Company is directed to deposit the aforesaid amount within a period of 12 weeks from the date of this decision before the trial Court as per the proportion of the tribunal.

(NIRZAR S. DESAI,J)

Manoj Kumar Rai