Shantaram Ananda Chatur vs Tiloksinh Dudhsinh Ravat C/O ...
2022 Latest Caselaw 499 Guj

      C/FA/1291/2009                                JUDGMENT DATED: 17/01/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1291 of 2009

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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            SHANTARAM ANANDA CHATUR & 1 other(s)
                          Versus
TILOKSINH DUDHSINH RAVAT C/O KATARIA TRANPORT COMPANY & 4
                          other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2
MR MR PRAJAPATI(1532) for the Defendant(s) No. 2
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 5
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                            Date : 17/01/2022
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and award dated 11.9.2007 passed by

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the Motor Accident Claims Tribunal (Aux), Vadodara in MACP no.201/99, the appellants- original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal:-

2.1 That the accident occurred on 3.9.1996 on Himmatnagar-Prantij Highway. It is the case of the appellants-original claimants that the deceased who was working in postal department was on training at Vadodara. It is the case of the appellants - original claimants that on 31.8.1996, the deceased went for a tour to Abu-Ambaji and were traveling in a Metador on the date of the accident while coming back. Record indicates that when the Metador reached the scene of occurrence, a truck bearing registration no. GJ-1 U-4561 was parked in a stationary position without any signal or indication on the middle of the road. As the driver of the Metador could not identify the stationary truck due to darkness, the Metador dashed from behind with the truck. The deceased sustained serious injuries and succumbed to the same. The present claim petition was filed under Section 166 of the Act by the original claimants who happen to be

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the parents and claimed compensation of Rs.20,00,000/-.

2.2 It was the case of the original claimants before the Tribunal that the deceased was working as a Clerk in postal department and was earning Rs.6,000/- per month and was the only bread earner of the family. The original claimants examined one of the claimant at Exh.31 and have also relied upon the documentary evidence, such as, FIR Exh.35, Panchnama Exh.36, inquest Panchnama Exh.37, postmortem note of the deceased Exh.38 and also oral deposition of one Laxmanbhai at Exh.71. The Tribunal, after considering the evidence on record and more particularly, FIR Exh.35, oral depositions of Swati Maruti at Exh.50, Sangeetaben Exh.51 and Sanjaybhai Exh.52, came to the conclusion that the drivers of both the vehicles were negligent and attributed negligence in the ratio of 80:20 for the drivers of the truck and Metador respectively. While considering the quantum, the Tribunal considered the income of the deceased at Rs.3,454/- per month and awarded 20% prospective income and after deducting two-third towards personal expenses applied multiplier of 16 and awarded a sum of Rs.2,65,344/- as compensation under the head of loss of dependency and awarded further

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amount of Rs.20,000/- under the head of loss of estate, Rs.5,000/- for transportation and Rs.2,000/- for funeral expenses and thus, while partly allowing the claim petition, awarded a sum of Rs.2,92,344/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization and being aggrieved by the same, the original claimants have preferred this appeal.

3. Heard Mr. Mohsin Hakim, learned advocate for the appellants - original claimants, Mr. M.R. Prajapati, learned advocate for respondent no.2, Mr. Shashikant Gade, learned advocate for respondent no.3 - New India Insurance Company Ltd. and Mr. Rituraj Meena, learned advocate for respondent no.5 - Oriental insurance Company Ltd. Though served, no one appears for the respondent no.4.

4. Mr. Hakim, learned advocate for the appellants relied upon the deposition of Laxmanbhai Anantbhai Exh.71 and the statement of calculation of salary at Exh.73 and contended that the Tribunal has committed an error in considering the income of the deceased as per the salary at Rs.3,454/- per month. Referring to the evidence on record, it was contended by Mr. Hakim that the salary of the deceased on

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the date of the accident was Rs.3,822/- per month. Mr. Hakim further contended that considering the age of the deceased and the deceased was in a permanent job, the original claimants would be entitled to prospective income to the extent of 50% instead of 20% as awarded by the Tribunal. It was further contended by Mr. Hakim that the Tribunal has also committed an error in deducting two-third towards personal expenses. Relying upon the judgment of the Hon'ble Apex Court in the case of United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, it was contended by Mr. Hakim that the appellants as parents would be entitled to parental consortium of Rs.40,000/- each. On the aforesaid grounds, it was contended by Mr. Hakim, learned advocate for the appellants that the impugned judgment and award is erroneous and the Tribunal has granted less compensation, which should be enhanced as prayed for by allowing the appeal.

5. Per contra, Mr. Gade as well as Mr. Meena have opposed this appeal and contended that the Tribunal has granted just and adequate compensation and the law prevailing on the date of the accident and therefore, no interference is called for. It was contended that the appeal being meritless deserves to be

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dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. Upon hearing the learned advocates appearing for the respective parties, following points for determination arise in this appeal:-

(i) Whether the Tribunal has correctly determined the income of the deceased at Rs.3,454/- per month or not?

(ii) Whether the Tribunal has committed an error in awarding only 20% prospective income or not?

(iii)Whether the Tribunal has committed an error in deducting two-third towards personal expenses even though there were only two claimants and the deceased was a Bachelor?

(iv) Whether the original claimants are entitled for any consortium or not?

8. In order to consider point no.1, it would be appropriate to refer to the oral deposition of Laxmanbhai at Exh.71 who was working in post department as well as the deposition of the

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appellant no.1 at Exh.31 as well as the calculation of statement at Exh.73. Upon reappreciation of the evidence on record, it clearly appears that the salary of the deceased who was working in post department on the date of the accident was Rs.3,822/- per month and not Rs.3,454/-. Thus, the Tribunal has committed an error in considering the income of the deceased at Rs.3,454/- per month. Following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, as the age of the deceased was 30 years i.e. below 40 years, the appellants - original claimants would be entitled to prospective income to the extent of 50% and not 20% as granted by the Tribunal and thus, the Tribunal has committed an error in granting 20% prospective income. Similarly, following the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, as the only two claimants are there and the deceased was bachelor, only one-half of the amount is required to be deducted towards personal expenses and not two-third. Thus, the Tribunal has committed an obvious error in deducting two-third towards personal expenses. Following the ratio laid down by the Hon'ble Apex Court in the case of

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Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076 and New India Assurance Company Ltd. Vs. Somwati, reported in (2020) 9 SCC 644, the appellants who are parents would be entitled to parental consortium of Rs.40,000/- each. Hence, the questions arise for determination in this appeal are answered accordingly.

9. Having come to the aforesaid conclusion, the appellants - original claimants would be entitled to compensation as under:-

Rs.3,822/- Income per month + Rs.1,911/- 50% prospective income = Rs.5,733/- Income per month

- Rs.2,866/- One-half deduction towards personal expenses = Rs.2,867/- Income per month X 12 Yearly = Rs.34,404/- Income per year X 16 Multiplier = Rs.5,50,464/- Loss of dependency + Rs.80,000/- Conventional amount towards parental consortium + Rs.15,000/- Loss of estate + Rs.15,000/- Funeral expenses = Rs.6,60,464/- Total compensation

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10. Thus, the appellants-original claimants would be entitled to total compensation of Rs.6,60,464/-. As the Tribunal has awarded Rs.2,92,344/-, the appellants would be entitled to an additional amount of Rs.3,68,120/- as additional compensation. However, the additional amount shall bare interest at the rate of 6% per annum from the date of filing of the claim petition till its realization. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional amount along with the interest as provided in this judgment within a period of eight weeks from the date of receipt of this judgment.

11. The appeal is thus partly allowed. However, there shall be no order as to costs in this appeal. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) Maulik