Gujarat High Court
Lataben Wd/O Dhanabhbai ... vs Rameshbhai Arjunsinh Patel on 18 January, 2022
Bench: R.M.Chhaya
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1975 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA 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 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 ?
==============================================================
LATABEN WD/O DHANABHBAI GANPATBHAI BHOI & 5 other(s)
Versus
RAMESHBHAI ARJUNSINH PATEL & 2 other(s)
==============================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5,6
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
MR. MH SHEKHAWAT(7194) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2,3
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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 16.1.2012 passed in MACP No.569 of
2007 by the Motor Accident Claims Tribunal (Main), Godhra,
present 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. Sunil Parikh, learned advocate for the
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
Insurance Company. Mr. Shekhavat, learned advocate appears
for the respondent no.1 has filed sick note as the Insurance
Company does not deny the liability, presence of other
respondents are not necessary. With the consent of the learned
advocate for the appellants and learned advocate for the
respondent no.3, present appeal is taken up for its final hearing.
3.0. Following facts emerge from the record of this appeal:
3.1. That the accident took place on 21.3.2007 at about 19.30
hours near Vanzara Hotel situated on Highway. It is the case of
the appellants - original claimants that opponent no.1 was
driving his Tempo bearing registration No.GJ-20T-3303 in rash
and negligent manner. It is further the case of the appellants
that respondent no.1 lost his control over the vehicle and dashed
with the deceased Dhanabhai, because of which, deceased
received serious injuries on head and other parts of the body and
succumbed to the same. An FIR was lodged with the Devgadh
Bariya Police Station being CR-I-56-2007 and present claim
petition was filed under Section 166 of the Act and claim
compensation of Rs.9,80,000/-. It was the case of the appellants
before the Tribunal that deceased was 27 years old and was
dealing as contractor of fisheries and was earning Rs.9000/- per
month. The mother of the deceased Jasodaben was examined at
Exh.27 and the appellants- original claimants relied upon the
documentary evidence such as FIR at Exh.22, Panchnama of
scene of offence at Exh.23, Inquest Panchnama 24, PM Report at
Exh.25 and certificate of cause of death at Exh.31. The Tribunal
after considering the evidence on record, determined the income
of the deceased at Rs.3000/- per month and applying multiplier
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
of 17, awarded a sum of Rs.4,08,000/- as compensation under
the loss of dependency. Over and above the same, the Tribunal
awarded additional compensation of Rs.25,000/- under the
different conventional heads. While partly allowing the claim
petition, awarded a sum of Rs.4,33,000/- 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- original
claimants contended that the the Tribunal has committed an
error in not granting any prospective income. 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 as the
claimants were five in number, deduction towards personal
expenses would be 1/4th and not 1/3rd as considered by the
Tribunal. Mr. Hakim also further contended that the appellants
would be entitled to consortium compensation, which has not
been granted by the Tribunal. On the aforesaid grounds, it was
contended by Mr. Hakim that the appeal deserves to be allowed
and the impugned judgment and award deserves to be modified.
5.0. Per contra, Mr. Sunil Parikh, learned advocate for the
respondent no.3 has opposed the present appeal. Mr. Parikh
contended that even though the appellants would be entitled to
prospective income, the fact remains that there is no evidence on
record to show that the income of the deceased was Rs.3000/-
per month. Mr. Parikh contended that while considering the
future income, this Court may determine the income of the
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
deceased based upon the minimum wages standard as it existed
on the date of accident, which would come to Rs.2400/- per
month. As far as conventional heads are concerned, Mr. Parikh
drew attention of this Court that the appellant no.6 is widow of
elder brother and she would not be entitled to any consortium.
Mr. Parikh submitted that even otherwise the Tribunal has
granted just and adequate compensation, no interference is
called for.
6.0. No other and further submissions / contentions/ grounds
have been raised by the learned advocates for the respective
parties.
7.0. Having considered the submissions made by the learned
advocates for the respective parties and following ratio laid down
by the Hon'ble Supreme Court in the case of Sarla Verma
(supra) and in the case of National Insurance Company Limite d
vs. Pranay Sethi & ors reported in (2017) 16 SCC 680, the
appellants would be entitled to prospective income to the tune of
40% which has not been considered while determining the
compensation under the head of future loss of income and thus
the Tribunal has committed error. It is an admitted position that
dependents are more than five and hence following the ratio laid
down by the Hon'ble Supreme Court in the case of Sarla Verma
(supra), the deduction towards personal expenses would be
1/4th and not 1/3rd as considered by the Tribunal. Similarly,
following the judgment of 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 @
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
Satwinder Kaur reported in AIR 2020 SC 3076 , the appellants
no.1 to 5 would be entitled to consortium compensation at
Rs.40,000/- each.
7.1. Even considering the contention raised by Mr. Parikh, it
would not be out of place to mention that this appeal is not by
the Insurance Company but by the claimants. Even considering
the fact that the deceased was 27 years old on the date of
accident, presumption of the Tribunal that the deceased was
earning Rs.100/- per day i.e. Rs.3000/- per month is reasonable
and same does not require any modification.
8.0. 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. 3000/- per month (income) + Rs.1200/- (40%
prospective income) =4200/- - 1050/- (1/4 towards
personal expenses = Rs.3150/- x 12 (per annum income) =
37800 X 17 (Multiplier as the age of the deceased was 27
years) = Rs.. 6,42,600/-"
9.0. 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
appellant nos. 1 to 5 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
C/FA/1975/2012 JUDGMENT DATED: 18/01/2022
compensation as under:
Particulars Amount (Rs.)
Future loss of income 6,42,600/-
Parental, spousal and filial 2,00,000/-
consortium
Loss of estate & Funeral 30,000/-
expenses
Total Compensation 8,72,600/-
10. Thus, the appellants - original claimants would be entitled
to compensation of Rs.8,72,600/. As the Tribunal has awarded
Rs.4,33,000/-, the respondent No.3 Insurance Company shall
deposit the additional amount of Rs.4,39,600/- 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. The original claimants shall deposit deficit
court fees and disbursement as per award be made only after
such Court fees is deposited by the appellants. Rest of the award
passed by the learned Tribunal remains unaltered. Appeal is
thus, allowed 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
