Gujarat High Court

Thakor Suryaben vs Fuldhara Kasambhai Jivabhai on 4 February, 2022

Bench: Niral R. Mehta

      C/FA/614/2009                         ORDER DATED: 04/02/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/FIRST APPEAL NO. 614 of 2009
=======================================
             THAKOR SURYABEN & 5 other(s)
                          Versus
       FULDHARA KASAMBHAI JIVABHAI & 1 other(s)
=======================================
Appearance:
MR VIRAL J DAVE(5751) for the Appellant(s) No. 1,2,3,4,5,6
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
=======================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                    Date : 04/02/2022
                     ORAL ORDER

1) Feeling aggrieved and dissatisfied with the judgment and

award dated 11.03.2008 passed by the Motor Accident Claims

Tribunal (Aux-VI), Presiding Officer, Fast Track Court, No. 6,

Mehsana in Motor Accident Claim Petition No. 405 of 2004, the

original claimants have approached this Court by way of the

present first appeal under Section 173 of the Motor Vehicles

Act, 1988 ( for short " the Act, 1988".)

2) The original claim of Rs.6,00,000/- claimed by the heirs of

deceased Thakore Pravinji, who died on 08.04.2004 in a

vehicular accident. As against, the tribunal was pleased to

award sum of Rs.3,28,500/- (Three lakh Twenty Eight Thousand

Five Hundred) towards the compensation under various heads.

          C/FA/614/2009                              ORDER DATED: 04/02/2022



 Sr.                         Particulars                           Amount
 No.
     1                      Loss of Income                     Rs.3,06,000/-
     2            Conventional amount for the loss of            Rs.20,000/-
                             expectation
     3            Under the head of funeral expenses              Rs.2500/-
                  Tribunal awarded Compensation                Rs.3,28,500/-


3)       It is the case of the claimants that, on 18.04.2004, the

deceased was returning from Unjha to Tundav on his bicycle on

the correct/right side. While passing through Unjha-Dhanadal

Factory, one mini truck bearing registration No. GJ-01-X-3862

came from the opposite side rashly and negligently and dashed

with the deceased. As a result of which, serious injuries

received by the deceased, and later on, succumbed to the

injuries. Thus, the claimants, being heirs of the deceased, had

approached the Motor Accident Claims Tribunal, Mehsana

under the Section 166 of the Act, 1988, seeking compensation of

Rs.6,00,00/- (Six Lakhs) for the untimely death of the deceased.

4) Upon service of notice, respondent No.1 herein though

served did not choose to appear before the Tribunal, Mehsana .

However, the respondent no.2 i.e. Insurance Company has filed

its written submission at exhibit 15 taking all available defense

and resisted the claim petition.

      C/FA/614/2009                                 ORDER DATED: 04/02/2022



5)    The Tribunal, Mehsana, after having considered the

pleadings and the evidence on record, has held that the driver

of the mini truck bearing registration No. GJ-01-X-3862, as sole

negligent, for the accident in question. The Tribunal, Mehsana ,

while considering the compensation under the head of loss of

future income, computed the income of the deceased as

Rs.1500/- per month, after deducting Rs.500/- towards personal

expenses. Thus, yearly loss of dependency calculated by the

Tribunal, Mehsana, at Rs.18,000/- (Rs.1500 x12). After

considering the age of the deceased at 35 years, the multiplier

of 17 years came to be adopted. Thus, Rs.3,06,000/-

(Rs.18,000x17) came to be awarded under the head of loss of

dependency. However, the Tribunal, Mehsana has awarded a

sum of Rs.20,000/- under the head of conventional amount for

loss of expectation and Rs.2,500/- under the head of funeral

expenses. Thus, in all Rs.3,28,500/- came to be awarded towards

the compensation for the death of deceased i.e. Thakor Pravinji.

6) Being aggrieved and dissatisfied with the above, the

claimants are before this Court by way of present appeal,

seeking enhancement of compensation.

       C/FA/614/2009                               ORDER DATED: 04/02/2022



7)    Heard Mr. Viral J. Dave, the learned counsel appearing for

the appellants, Mr. Mauilik J. Shelat, the learned counsel

appearing for respondent No.2-Insurance Company. The

respondent No. 1, though duly served, chosen not to contest the

present appeal.

8) Mr. Viraj Dave, the learned counsel appearing for the

appellants submitted that the compensation awarded by the

Tribunal, Mehsana is not adequate in nature, and therefore, the

same may be enhanced suitably.

8.1 Mr. Dave, further submitted that the Tribunal, Mehsana

has committed an error in computing the said income, so as to

award compensation under the head of loss of dependency. He

further submitted that the Tribunal, Mehsana has considered

Rs.1500/- under the head of loss of future income, is on a lower

side and he further submitted that the Tribunal, Mehsana

miserably erred in considering the future rise of income.

8.2 Mr. Dave, further relied upon the law laid down by the

Honourable Apex Court in the case of Sarla Verma & Ors vs

Delhi Transport Corp.& Anr reported in 2009 (6) SCC 121

and in the case of the National Insurance Company Limited

C/FA/614/2009 ORDER DATED: 04/02/2022

Pranay Sethi and Ors. reported in (2017) 16 SCC 680 so as to

contend that the amount under the head of consortium,

transportation and loss of estate be considered. He, therefore,

requested this Court to pass appropriate enhancement order by

modifying the award passed by the tribunal.

9) Per contra, Mr. Mitul J Shelat, the learned counsel

appearing for the Insurance Company has vehemently opposed

the present appeal.

9.1 Mr.Shelat, the learned counsel appearing for the

Insurance Company submitted that judgment and award passed

by the Tribunal Mehsana , in the facts and circumstances, is

adequate in nature, and thereby, does not require any

interference and/or modification. Mr. Shelat, however, could

not dispute the ratio laid down by the Honourable Apex Court in

the case of Sarla Verma (Supra) and Pranay Sethi (Supra).

10) No other and further submissions have been advanced by

the learned counsels except stated herein-above.

11) I have heard the learned counsels appearing for the

respective parties and also having gone through the records and

C/FA/614/2009 ORDER DATED: 04/02/2022

proceedings of the Tribunal, Mehsana .

12) Having considered the submissions advanced by the

learned counsels, the question that falls for consideration of this

Court is whether the award passed by the Tribunal, Mehsana is

adequate in nature. Having considered the submissions and

evidence on record, my answer to the aforesaid question is in

negative for the reasons stated herein below.

'It is true that the claimant could not produce the proof of

income.'

13) Thus, in my view, in such situation, the Tribunal, Mehsana

should have taken a reference from the schedule prevailing at

the time of accident for daily-wages.

14) Having considered the schedule, it appears that wages

prevailing as on the date of accident, was Rs.2200/- per month.

Considering the age of the deceased, in my view, it would be

just and appropriate to add 40% towards the future rise of

income.

15) In view of the aforesaid, the monthly income of the

deceased should be assessed at Rs.3000/- per month

C/FA/614/2009 ORDER DATED: 04/02/2022

(Rs.2200+40%). Now, considering the number of dependent, ¼

amount deserves to be deducted towards personal expenses,

which would come to Rs.750/- (¼ of Rs.3000/-). Thus, the

income of the deceased, so as to calculate loss of dependency,

should have been calculated at Rs.2250/- per month. Thus, the

annual dependency loss would be Rs.27,000/-. Considering the

age of the deceased, the multiplier of 17 years as adopted by the

Tribunal, Mehsana requires no interference. Thus, under the

head of dependency loss, the claimants would be entitled to

Rs.4,59,000/- (Rs. 27,000x17). Considering the law laid down by

the Honourable Apex Court in the case of Pranay Sethi (Supra),

the claimants are also entitled to Rs.15,000/- under the head of

personal expenses, Rs.15,000/- under the head of loss of estate

and Rs.1,60,000/- (40% x 4 dependant) under the head of loss of

consortium. Thus, modified compensation would be as under:-

Sr.                   Particulars                        Awarded
No.                                                    Compensation
 1      Under the head of loss of dependency           Rs.4,59,000/-
 2       Under the head of personal expenses             Rs.15,000/-
 3       Under the head of loss of consortium           Rs1,60,000/-
 4       Under the head of personal expenses             Rs.15,000/-
 5                      Total                          Rs.6,49,000/-







       C/FA/614/2009                           ORDER DATED: 04/02/2022



16)    Thus, the claimants are entitled to the compensation of

Rs.6,49,000/-, wherein, the Tribunal, Mehsana has already

awarded Rs.3,20,500/- and hence, the claimants are entitled to

additional compensation at Rs.3,28,500/- with interest at the

rate of 7.5% per annum from the date of filing application till

the realization.

17) In the result, the appeal is allowed. The respondent No.2-

Insurance Company is directed to deposit the additional

amount of Rs.3,28,500/-with interest at the rate of 7.5% before

the concerned Tribunal, Mehsana, within the period of 8 weeks

from the date of receipt of the order of this Court.

18) The Tribunal, Mehsana shall disburse the additional

compensation to the claimants by account payee cheque after