Gujarat High Court

Shardaben Rameshbhai Solanki vs Patel Vatsal Pradeepbhai on 14 December, 2022

Bench: Hemant M. Prachchhak

     C/FA/2686/2017                              JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2686 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?

==========================================================
               SHARDABEN RAMESHBHAI SOLANKI & 4 other(s)
                               Versus
                 PATEL VATSAL PRADEEPBHAI & 2 other(s)
==========================================================
Appearance:
MR SHUSHIL R SHUKLA(5603) for the Appellant(s) No. 1,2,3,4,5
MR PARESH M DARJI(3700) for the Defendant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
==========================================================
    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 14/12/2022
                             ORAL JUDGMENT

1. This appeal is filed by the appellants-original claimants

seeking enhancement of the compensation amount awarded by the

learned Motor Accident Claims Tribunal (Aux.) & 3rd Additional

District Judge, Kheda at Nadiad (hereinafter referred to as "the

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

Tribunal") vide impugned judgment and award dated 6.10.2016

passed in M.A.C.P. No.1291 of 2012, whereby, the Tribunal has

partly allowed the claim petition and awarded a sum of Rs.7,61,600/-

in favour of the claimants.

2. It came to be held by the Tribunal that said amount was

ordered to be awarded to the deponents. Feeling aggrieved and

dissatified with the impugned judgement and award, present appeal

has been filed.

3 Brief facts of the present case are that on 21.9.2012, the

deceased Rameshbhai Maganbhai Solanki was riding his bicycle on

the correct side of the road, and when he reached at the place of

accident i.e. on Bakrol -Vadtal road, at that time, one Motorcycle

bearing Registration No. GJ-23-K-633, driven by the opponent No.1,

came from the back side, in full speed, in rash and negligent manner

and violently dashed in the deceased's bicycle. As a result of this

accident, the deceased sustained serious injuries on his body and

eventually succumbed to them. Thereafter, the FIR came to be

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

lodged. Hence, the appellants- original claimants have filed claim

petition before the Tribunal. The Tribunal, after evaluating the

pleadings and evidence tendered by the parties, partly allowed the

claim petition and awarded a sum of Rs.7,61,600/- under the

different heads as against the claim of Rs.9,00,000/-.

4. Heard Mr. Shushil R.Shukla, learned counsel appearing for

the appellants; Mr. Paresh Darji, learned Counsel appearing for

respondent Nos.1 & 2 and Mr. Alkesh Shah, learned counsel

appearing for the respondent No.3 - Insurance Company.

5. Mr. Shushil Shukla, learned counsel appearing for the

appellants has submitted learned Tribunal has not awarded just and

adequate compensation . He has further submitted that learned

Tribunal has not considered the income of the deceased in its true

and proper spirit as per settled legal principle. He has further

submitted that learned Tribunal has not properly determined the

income of the deceased while calculating the quantum and passed

the award which is erroneous. Therefore, present appeal is filed by

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

the original claimants for enhancement of the amount of

compensation awarded by the learned Tribunal.

6. Per contra, Mr. Alkesh Shah, learned counsel appearing for

respondent 3 -Insurance Company has objected the present appeal

and submitted that the award passed by the learned Tribunal is just

and proper and there is no mistake committed by the learned

Tribunal while determining the income of the deceased and while

awarding the amount of compensation. Learned Counsel Mr.Paresh

Darji, who is appearing for the driver and owner of the offending

vehicle involved in the accident. Therefore, both the learned

Counsels appearing for the respective respondents have submitted

that no interference is called for.

7 The controversy run in the present appeal is narrow in

compass whether the learned Tribunal has committed an error while

determining the just and proper income of the deceased or not ?

Whether learned Tribunal has awarded the just and adequate

compensation or not ? Whether the learned Tribunal has committed

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

an error while awarding the consortium or not ? The above questions

are answered accordingly. The deceased was doing masonry work,

considered to be skilled labourer and even considering the notional

income as per the Minimum Wages Act at the time of accident, the

deceased was entitled to receive Rs.157/- per day as a skilled

labourer, so amount comes to Rs.4710/- per month as on the date of

the accident. Instead of that, Learned Tribunal has considered only

Rs. 3,000/- the income of the deceased therefore, I am of the

opinion that learned Tribunal has committed an error while

determining the income of the deceased. The income of the deceased

is required to be considered at the rate of Rs. 4710/- per month, as

per the prevailing minimum wages at the time of accident. The

deceased was also entitled to get future prospective income at the

rate of 40%. Considering the fact that learned Tribunal has

deducted 1/3rd towards the personal expenses in place of 1/4th that

was also required to be modified. So far as consortium amount and

amount under the other heads is also required to be enhanced as per

the settled legal principle in case of Sarla Verma and others Vs.

Delhi Transport Corporation and another, reported in (2009) 6

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

SCC 121 as well as in the case of National Insurance Company

Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC

680 , they are entitled to get the compensation just and adequate

even they are also entitled to get the consortium amount as per

judgements of Hon'ble Apex Court in case of Magma General

Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram

and others, reported in (2018) 18 SCC 130 as well as in the case of

United India Insurance Company Limited Vs. Satinder Kaur

alias Satwinder Kaur and others reported in AIR 2020 SC 3076

and also in the case of New India Assurance Co. Ltd. Vs. Smt.

Somwati and others reported in (2020) 9 SCC 644. The wife is

entitled for consortium amount under the head of spousal

consortium Rs.40,000/-. The appellant No.4 and 5 i.e. the parents

are also entitled for parental consortium of Rs.40,000/- (each) and

appellant No.3 are also entitled for consortium of Rs. 40,000/- all

appellants are entitled for consortium as per the recent

pronouncement of the Hon'ble Apex Court in the above referred

cases. They are entitled to get Rs.15,000/- towards the Funeral

Expenses and Rs.15,000/- towards the loss of estate. Considering the

C/FA/2686/2017 JUDGMENT DATED: 14/12/2022

ratio laid down by the Apex Court in the above referred cases, I am

of the considered opinion that the appellants are entitled to get

additional amount of compensation at Rs.4,38,600/- plus 6% rise

and appeal requires to be allowed and the impugned judgment and

award requires to be substituted by enhancing the amount of

compensation and, therefore, the compensation is enhanced under

the following heads:-

             Heads                                            Rupees
             Loss of Dependency                           8,90,280/-
             Lost to the Estate                             15,000/-
             Loss       of         Consortium             2,00,000/-
             (5xRs.40,000)
             Funeral charges                                15,,000/-
             Medical Bill                                   80,000/-
             Total                                      12,00,280/-
             Awarded amount                               7,61,600/-
             Enhanced          amount            of       4,38,600/-
             compensation
(8)     Accordingly a sum of Rs4,38,600/- as additional compensation

requires to be awarded which is just and reasonable compensation

and the same is awarded in addition to Rs.7,61,600/- awarded by the

Tribunal. However, the appellants are entitled to the enhanced

amount of compensation of Rs.4,38,600/- along with interest at the

rate of 6% from the date of application till its realization.

       C/FA/2686/2017                              JUDGMENT DATED: 14/12/2022




(9)     For the foregoing reasons, the appeal is allowed in part. The

judgment and award dated 6.10.2016 passed in M.A.C.P. No.1291

of 2012 by the learned Motor Accident Claims Tribunal (Aux.) & 3 rd

Additional District Judge, Kheda at Nadiad is hereby modified and

in addition to what has been awarded by the Tribunal, a sum of

Rs.4,38,600/- as additional amount of compensation with interest at

the rate of 6% per annum is awarded which shall be from the date of

filing claim petition till its realization. The Insurance Company is

directed to deposit additional amount of compensation i.e.

Rs.4,38,600/- with 6% interest as early as possible within an outer

limit of eight weeks from the date of receipt of certified copy of this

order. After deposit of the additional amount of compensation, the

same shall be disbursed in favour of the claimants through RTGS,