Heirs Of Deceased Nagendra ... vs Abdulbhai Yusufbhai Ghanchi
2022 Latest Caselaw 10063 Guj

     C/FA/3039/2017                                JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 3039 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 to  No
    see 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                 No
     law as to the interpretation of the Constitution of India
     or any order made thereunder ?

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                       HEIRS OF DECEASED NAGENDRA RAJARAM SHAV
                                            Versus
                           ABDULBHAI YUSUFBHAI GHANCHI & 3 other(s)
==============================================================================
Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
MR. KISHAN H DAIYA(6929) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
for the Defendant(s) No. 2,4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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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 appellants have challenged the award dated 29.04.2017 passed by Motor Accident Claims Tribunal (Aux.) Gandhidham, Kutchh in MACP No.218 of 2011, whereby the Tribunal was pleased to partly allow the Claim Application of the appellants and held that the claimants are entitled to recover of Rs.6,98,000/- with proportionate costs and interest at the rate of 7.5% per annum from the date of claim till its realization as against the claim of Rs.16,00,000/- made by the present appellants.

C/FA/3039/2017 JUDGMENT DATED: 14/12/2022

2. Brief facts giving rise to the present appeal are stated as under:-

2.1. It is the case of the claimants that on 21/05/2011, in the evening, the deceased was returning after completing his duty by travelling the Rickshaw bearing registration NO.GJ-12-Z-5820, at that time, the opponent No.1, who was driving the said vehicle rashly and negligently and in excessive speed also and hence, the said vehicle was turtled and caused the accident. Due to the said accident, deceased sustained injuries over his body and he was died. It is the say of the claimants that the said accident was occurred due to the sole negligence of the opponent No.1, for this conduct by the opponent No.1, the police complaint was also lodged against him regarding the rash and negligence driving. It is the say of the claimants that at the time of accident, deceased was 31 years old and he was working in Lucky Sar Pvt. Ltd. Company and thereby he was used to earn of Rs.7000/- per month. It is also submitted that the claimant No.1 is the widow and claimant No.6 is the mother of the deceased and remaining claimant No.2 to 5 are the children of the deceased. Therefore, the present claim petition is filed against the opponent No.1 being driver, opponent No.2 being owner and No. being insurer of the alleged involved vehicle. Hence, all the opponents are jointly and severally liable to pay the compensation to the claimants as asked in their claim petition.

3. On the basis of aforesaid claim, the Tribunal after

C/FA/3039/2017 JUDGMENT DATED: 14/12/2022

considering the material on record including evidence, passed an order holding the appellant entitled to some of Rs.6,98,000/-. Being aggrieved by the same, appeal is preferred.

4. Learned advocate Mr. Vishal C. Mehta appearing for the appellants assailed the order under challenge on various grounds. He submitted that the income of the deceased person as the accident was a fatal accident, income of the deceased person was required to be calculated on the basis of minimum wages. For calculation of minimum wages, the Tribunal was required to take into consideration the minimum wages as prescribed under the notification published by the State Government from time to time. However, the Tribunal considered the monthly income of the deceased at Rs.3000/- per month and entire claim is based upon the aforesaid monthly income and thereby the Tribunal has committed an error, according to learned advocate Mr. Vishal Mehta. Learned advocate Mr. Vishal Mehta further submitted that even the conventional amount i.e. funeral expenses is awarded at the rate of Rs.2,000/- which is contrary to the said principle of law and according to him, a sum of Rs.15,000/- should have been given by the Tribunal towards loss of consortium only Rs.5000/- is awarded, which according to learned advocate Mr. Mehta, is insufficient. He submitted that in view of the judgment in the case of Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram reported in (2018) 18 SCC 130, for loss of consortium surviving dependents are entitled to have Rs.40,000/-, in

C/FA/3039/2017 JUDGMENT DATED: 14/12/2022

the instant case, in view of the fact that there are 6 surviving dependents, the amount awarded towards loss of consortium should be not Rs.5000/- but Rs.2,40,000/-. Learned advocate Mr. Mehta submitted that minimum wages should be Rs.4500/- per month not Rs.3000/-. Similarly, he submitted that towards loss of estate Rs.2,500/- awarded by the Tribunal which should be Rs.15,000/- in view of the settled principle of law. By making the aforesaid submissions, he submitted for modification of the award by enhancing the amount stated aforesaid.

5. Learned advocate Mr. Yogi K. Gadhia, though, opposed the appeal vehemently. He could not dispute and show anything on record which may destroy the contention of learned advocate Mr. Vishal Mehta, and hence, he fairly conceded that at the relevant point of time when the accident took place, in the year 2011, the minimum wages was Rs.4,500/- per month. Further, in view of settled proposition of law he also could not dispute about the submissions made by learned advocate Mr. Vishal Mehta that for loss of estate and funeral expenses, the Tribunal ought to have awarded a sum of Rs.15000/- each and for loss of consortium considering the fact that there are 6 dependent persons each one were entitled to Rs.40,000/- which comes to Rs.2,40,000/-.

6. In view of the aforesaid submissions, when the reasoning given by the Tribunal, is not challenged by the Insurance Company. The Court is required to consider only

C/FA/3039/2017 JUDGMENT DATED: 14/12/2022

the quantum awarded by the Tribunal, and therefore, in view of the aforesaid undisputed facts the amount awarded by the Tribunal is required to be recalculated as under:-

Rs.6,88,500/- Future loss of dependency. Rs.2,000/- Towards conventional amount.

Rs.5,000/-                      Towards loss of consortium.
Rs.2,500/-                      Towards loss of estate.
Rs.6,98,000/-                   Total Compensation.

7. As the appellant's income is now considered to be as per the minimum wages which was Rs.4500/- at the relevant point of time and considering the 40% increasing the same for future loss as per the settled proposition of law an amount would be come to Rs.6300/- considering the fact that there are 6 dependent persons, 25% out of the said amount would be deducted, and therefore, the net amount would be come to Rs.4725/- per month, if that is multiplied by 12 to arrive at yearly income of the deceased person, the yearly income of the deceased person would come to Rs.56700/- and considering the fact that at the time of death the deceased person's age was 31 years, multiplier of 16 would be applicable, and therefore, if the amount of Rs.56700/- multiplied by 16, net amount towards loss of dependency would come to Rs.9,07,200/- as against which the Tribunal had awarded only Rs.6,88,500/-. Further, the present appellants are entitled to Rs.15,000/- each towards funeral expenses and loss of estate and Rs.2,40,000/- being an amount for 6 dependents as per their entitlement to Rs.40,000/- each would come to Rs.2,40,000/-, and therefore, the appellants are held

C/FA/3039/2017 JUDGMENT DATED: 14/12/2022

entitled to compensation as under:-

Future loss of dependency Rs.9,07,200/- Conventional amount (Funeral Expenses) Rs.15,000/-

Loss of Consortium                           Rs.2,40,000/-(6 dependents)
Loss of estate                               Rs.15,000
Total Sum of Rs.                             Rs.11,77,200/-

8. Considering the fact that the Tribunal has already awarded a sum of Rs.6,98,000/-, the respondents are directed to deposit the remaining amount of Rs.4,79,200/- with interest at the rate of 7.5% from the date of claim within a period of 12 weeks from today.

9. With the aforesaid directions and observations, the award under challenge is modified and amount is enhanced. The appeal is partly allowed.

10. Once the amount is deposited, upon an application by the appellants, the same may be disbursed in favour of the appellants. Record and Proceedings, be sent back to the concerned trial Court.

(NIRZAR S. DESAI,J)

Manoj Kumar Rai