Bhikhiben Hirabhai Parmar vs Sureshbhai Jethabhai Vasava
2022 Latest Caselaw 10091 Guj

     C/FA/1933/2017                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                      R/FIRST APPEAL NO. 1933 of 2017


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE                                      Sd/-
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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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                  BHIKHIBEN HIRABHAI PARMAR & 3 other(s)
                                 Versus
                 SURESHBHAI JETHABHAI VASAVA & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 14/12/2022

                             ORAL JUDGMENT

1. The present Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated 7th March 2017 passed by the Motor Accident Claims Tribunal (Auxi), Vadodara, in Motor Accident Claim Petition No.1579 of

C/FA/1933/2017 JUDGMENT DATED: 14/12/2022

2003, whereby the Tribunal was pleased to partly allow the claim petition.

2. By way of present Appeal, the appellants (i.e. the widow and the children respectively of the deceased Hirabhai Parmar, who died in a vehicular accident which took place on 27.9.2003), seek enhancement of the compensation amount to the tune of ₹66 lakh under different heads for the death of the deceased. The Tribunal has awarded compensation to the tune of ₹63,92,600/- under different heads considering the grievous and fatal injuries sustained by the deceased as a result of which the deceased succumbed.

3. Learned advocate for the appellant submitted that the deceased was working as Cleaner and, therefore, he was earning ₹65,000/- per month. Therefore, the monthly income arrived at ₹62,000/- was lesser than what was established by the claimants on record. Learned advocate further submitted that Exh.35 is the evidence of the claimant herself and supported by the evidence of other witnesses that the husband of the claimant was earning an amount of ₹65,000/- per month and, therefore, an error has been committed by the Tribunal in considering the monthly income at ₹62,000/-.

4. It is further submitted that the Tribunal has committed an error in awarding an amount of ₹650,000/- under the heads of

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loss of consortium and funeral expenses as well as loss of estate. The same are not in consonance with the ratio laid down by the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680.

5. As against this, the Insurance Company has supported the award by submitting that there was no documentary evidence to support the claim of the claimants that the monthly income of the deceased was ₹65,000/-. It is submitted that considering the age of the deceased and his predicted earning, the Tribunal was justified in awarding compensation of ₹63,92,600/-.

6. Having considered the rival submissions of the parties and having perused the documents on record, it is the case where on 27.9.2003 the deceased Hirabhai Parmar (husband of the claimant no.1 and father of the remaining claimants) was travelling in a Tanker which was being driven by the opponent no.1 driver in a manner that it collided with the road side tree leading to a vehicular accident and turning out to be fatal and thereby Hirabhai Parmar losing his life.

7. The main contention raised before this Court is the calculation of the income of the deceased who was a helper in the tanker and the deposition recorded of the claimant herself about the monthly income of the deceased. In the opinion of the Court, the income considered by the Tribunal at ₹62,000/- per

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month appears to be on a lesser side and not in consonance with the Minimum Wages Act. If the minimum wages under the Act for the period during which the accident took place is considered, i.e. in the year 2003, the minimum wages prescribed was ₹62,500/- and, therefore, the Court is of the view that the Tribunal ought to have considered the monthly income of the deceased at ₹62,500/- instead of ₹62,000/-.

8. Therefore, considering the monthly income of the deceased at ₹62,500/- and adding 25% towards the future and prospective income, the same would come to ₹63,125/- per month and ₹637,500/- per annum. After deducting 1/4th amount towards the personal expenses, i.e. ₹69,375/-, the amount would come to ₹628,125/-, and after applying the multiplier of 14, the prospective loss of income to the claimant would come to ₹63,93,750/-.

9. Insofar as the amount under the head of loss of consortium is concerned, the amount of ₹650,000/- which has been awarded by the Tribunal, in the opinion of the Court, is on the lesser side considering the age of the deceased being 45 years and the claimants nos.2 to 4 being children of the deceased were minor at the time of the accident and, therefore, in the opinion of the Court, under the head of loss of consortium, the amount ought to have been awarded at ₹680,000/-.

10. Similarly, the Tribunal has awarded an amount of ₹65,000/- under the head of funeral expenses and ₹610,000/-

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under the heads of loss of estate and pain, shock & suffering. However, in the opinion of the Court, as laid down by the Apex Court in the case of Pranay Sethi (supra), the amount of ₹615,000/- each is to be paid towards the funeral expenses and loss of estate respectively.

11. In view of the aforesaid finding, the Court is of the view that the claimants are entitled to the compensation as under :

₹63,93,750/-                 Prospective Loss of Income

₹615,000/-                   Loss of Estate

₹680,000/-                   Loss of Consortium

₹615,000/-                   Funeral Expenses

₹5,03,750/-5,03,750/-        Total Compensation

12. The Tribunal has awarded ₹63,92,600/- towards the compensation amount. However, this Court has considered ₹65,03,750/- towards the compensation amount. As a result of the same, the claimants are now entitled to an additional compensation of ₹61,11,150/- (Rupees One Lakh Eleven Thousand One Hundred Fifty only) with interest at the rate of 7.5% per annum from the date of filing of the petition till realization.

13. The Insurance Company is directed to deposit the additional amount of compensation of ₹61,11,150/- with interest

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at the rate of 7.5% per annum from the date of claim petition till its realization, within a period of six weeks from the date of receipt of copy of this order.

14. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal with accrued interest thereon, if any, to the claimant by account payee cheque after proper verification and after following the due procedure.

15. While making the payment, the Tribunal shall deduct the courts fee, if not paid, in accordance with rules/laws.

16. With the aforesaid, the Appeal stands partly allowed. Records and proceedings be sent back to the concerned Tribunal forthwith.

(A.Y. KOGJE, J.) /MOINUDDIN