Gujarat High Court
Manjulaben Wd\O Natvarsinh ... vs Usman Gulam Mohmed Kapadia on 18 January, 2022
Bench: R.M.Chhaya
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2688 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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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 of NO
the 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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MANJULABEN WD\O NATVARSINH BAKORBHAI SOLANKI & 2
other(s)
Versus
USMAN GULAM MOHMED KAPADIA & 1 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 18/01/2022
ORAL JUDGMENT
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 31.1.2008 passed in MACP No.607
of 1999 by the Motor Accident Claims Tribunal (Auxi) Bharuch,
the appellants- original claimants have preferred present appeal
under Section 173 of the Motor Vehicles Act, 1988.
2.0. Heard Mr. Mohsin Hakim, learned advocate for the
appellants and Mr. Palak Thakkar, learned advocate for the
Insurance Company.
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
3.0. Following facts emerge from the record of this appeal:
3.1. That the accident occurred on 27.4.1999, the deceased was
going on his motorcycle bearing registration no. GJ-16- H-539
and when he reached near the IPCL, Ambheta road, at that time,
opponent no.1 the driver of Jeep No.GJ-16-C-2508 came from
the opposite side in rash and negligent manner and dashed with
the motorcycle, as a result of which, the deceased died on the
spot. An FIR was lodged with the jurisdictional police station
and present claim petition was filed under Section 166 of the Act
and claim compensation of Rs.11 lakhs. It was the case of the
appellants before the Tribunal that deceased was 31 years old
and was was working in IPCL as a trainee and was earning
Rs.5000/- per month. The wife of the deceased was examined at
Exh.31 and the appellants- original claimants relied upon the
document evidence such as FIR at Exh.22, Panchnama of scene
of offence at Exh.23 and salary slip at Exh. 27. The Tribunal
after considering the evidence on record, determined the income
of the deceased at Rs.4000/- per month and applying multiplier
of 13, awarded a sum of Rs.6,24,000/- as compensation under
the loss of dependency. Over and above the same, the Tribunal
awarded additional compensation of Rs.27,000/- under the
different conventional heads. While partly allowing the claim
petition, the Tribunal held contributory negligence of the
deceased to the extent of 10% and thus awarded Rs.5,85,900/-
with 9% interest from the date of filing of claim petition till its
realization. Being aggrieved and dissatisfied with the same, the
present appeal is filed.
4.0. Mr. Hakim, learned advocate for the appellants has taken
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
this Court to the impugned judgment and award passed by the
learned Tribunal. Mr. Hakim contended that having relied upon
the pay slip at Exh.27 which indicates that the deceased is
trainee in IPCL had gross salary of Rs.4515 and not Rs.4400/-
per month. While calculating the compensation under the head
of future loss of income, the Tribunal has committed an error in
considering the income of the deceased at Rs.4000/- only.
Relying upon the judgment of the Hon'ble Supreme Court in the
case of Sarla Verma and ors. vs. Delhi Transport Corporation
and Anr. reported in (2009) 6 SCC 121, Mr. Hakim contended
that deceased was 31 years old on the date of accident and
therefore, appropriate multiplier would be that of 16 and not 13
as considered by the Tribunal. Mr. Hakim contended that
appellant no.1 is wife of the deceased and appellants nos. 2 and
3 are minor children and hence would be entitled to additional
compensation under the consortium. On the aforesaid grounds,
Mr. Hakim contended that impugned judgment and award
deserves to be modified by partly allowing the appeal.
5.0. Per contra, Mr. Palak Thakkar, learned advocate for the
respondent Insurance Company has opposed this appeal.
According to Mr. Thakkar, what has been awarded by the
Tribunal is just and adequate and no interference is called for.
Mr. Thakkar contended that the appeal being meritless, deserves
to be dismissed.
6.0. No other and further submissions/ contentions/ grounds
have been raised by the learned advocates for the respective
parties.
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
7.0. Upon re-appreciation of the pay slip at Exh.27, it clearly
appears that the net per month income of deceased was
Rs.4400/-. We find that the Tribunal while considering the pay
slip at Exh.27 has come to the conclusion that the deceased was
earning Rs.4400/- per month. However, while calculating the
compensation under the head of future loss of income, the
Tribunal has committed an error by determining and considering
the income of the deceased at Rs.4000/- per month, which
deserves to be modified by considering and determining income
of the deceased at Rs.4400/- per month. Following the ratio laid
down by the Hon'ble Supreme Court in the case of Sarla Verma
and ors (supra), however as the age of the deceased was 31
years on the date of accident, the appropriate multiplier would
be that of 16 and not 13 as considered and granted by the
Tribunal. Similarly, following the ratio laid down by the Hon'ble
Supreme Court in the case of Magma General Insurance Co. Ltd
vs. Nanu Ral Alias Chuhur Ram & Ors reported in (2018)18 SCC
130, in the case of United India Insurance Company Limited vs.
Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076,
the appellants would be entitled to consortium of Rs.40,000/-
each. Mr. Hakim does not dispute the negligence as decided by
the Tribunal.
7.1. Having come to the aforesaid conclusion and upon
reappreciating the evidence on record, the appellants would be
entitled to compensation under the future economic loss as
under:
"Rs. 4400/- per month (income) + Rs.2200/- (50%
prospective income) =6600/- - 2200/- (1/3 towards
personal expenses = Rs.4400/- x 12 (per annum income) =
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
52800 X 16 (Multiplier as the age of the deceased was 31
years) = Rs.8,44,800/- .
8. Following the ratio laid down by the Hon'ble Supreme
Court in the case of Magma General Insurance Co. Ltd (supra)
and in the case of Satinder Kaur @ Satwinder Kaur (supra), the
appellants would be entitled to consortium at Rs.40,000/- each.
The original claimants would also be entitled to further amount
of Rs15,000/- towards loss of estate and Rs. 15,000/- towards
funeral expenses. Having come to the aforesaid conclusion, the
appellants would be entitled to compensation as under:
Particulars Amount (Rs.)
Future loss of income 8,44,800/-
Consortium 1,20,000/-
Loss of estate & Funeral 30,000/-
expenses
Total Compensation 9,94,800/--
10. Thus, the appellants - original claimants would be entitled
to compensation of Rs.9,94,800/-. As the Tribunal held 10%
negligence of the deceased, the appellants - original claimants
would be entitled to Rs.8,95,320/- (9,94,800/- minus 99480/-).
As the Tribunal has awarded Rs.5,85,900/-, the respondent
Insurance Company shall deposit the additional amount of
Rs.3,09,420/- with the Tribunal within a period of eight weeks
from the receipt of the order. However, on the additional amount
of compensation awarded by this Court, the appellants would be
entitled to interest at the rate of 6% from the date of filing of
claim petition till its realization. Rest of the award passed by the
learned Tribunal remained unaltered. Appeal is thus, allowed
C/FA/2688/2012 JUDGMENT DATED: 18/01/2022
accordingly. However, there shall be no order as to costs.
Registry is directed to transmit back the Record and Proceedings
to the concerned Tribunal forthwith.
sd/-
(R.M.CHHAYA,J)
KAUSHIK J. RATHOD
