Gujarat High Court
Somabhai Koyabhai Pateliya vs Bilal Faruq Patel on 19 January, 2022
Bench: Hemant M. Prachchhak
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3900 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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SOMABHAI KOYABHAI PATELIYA & 1 other(s)
Versus
BILAL FARUQ PATEL
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR MAYUR S BAROT(1637) for the Defendant(s) No. 4
MR R G DWIVEDI(6601) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 19/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 26.07.2017 passed by the
Motor Accident Claims Tribunal (Aux), Godhra in MACP
No. 1059 of 2015, the original claimants have
preferred this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the
"Act").
2. Heard Mr. Nishit Bhalodi, learned advocate for
the appellants-original claimants, Mr. H.G. Mazmudar,
learned advocate for respondent no.2 insurance
company and Dr. R.G. Dwivedi, learned advocae for
respondent no.5.
3. Short question arises in this appeal and hence,
the appeal is taken up for its final disposal
forthwith with the consent of the learned counsel
appearing for the parties. At the outset, it
deserves to be noted that the insurance company of
both the impeding vehicle involved in the accident
have not denied their liability.
4. Following facts emerge from the record of the
appeal -
4.1 That the accident occurred on 24.10.2015. It is
the case of the claimants that deceased Rameshbhai
who was serving as driver in truck bearing
registration no. GJ-02-Y-4734 was on his duty between
Vadodara to Godhra Highway. It is the case of the
claimants that at about 10.30 PM, when the truck
driven by the deceased in proper manner reached
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
Khakhariya Chokdi abutting on Halol Godhra bypass,
tanker bearing registration no. GH-06-AU-5454 was
going ahead of the truck driven by the deceased. It
is further the case of the claimants that the driver
of the tanker abruptly took turn without any signal
and applied brake because of which the truck driven
by the deceased dashed with the tanker. The deceased
Rameshbhai sustained serious injuries and ultimately
succumbed to the same. The FIR was lodged with the
jurisdictional police station at exhibit 25 and the
present claim petition was filed under Section 166 of
the Act by the appellants-claimants and they claimed
compensation of Rs. 22,50,000/-.
4.2 The appellants relied upon the oral testimony of
one of the claimant at exhibit 24 and also relied
upon documentary evidence such as FIR at exhibit 25,
panchnama of the place of accident at exhibit 26,
inquest panchnama at exhibit 27, driving license at
exhibit 28, insurance policy of the truck at exhibit
29, driving license at exhibit 30, insurance policy
of the tanker at exhibit 31 and PM report at exhibit
32. The Tribunal after appreciating the evidence on
record, came to the conclusion that the drive of both
the vehicles, i.e., driver of the truck and driver of
tanker are equally negligent for the accident. While
computing the quantum, the Tribunal relied upon the
evidence on record and came to the conclusion that
the appellants have not been able to prove their
version that the deceased was working as driver and
was earning Rs.8,000/- per month as no evidence was
adduced by the appellants to prove such income. The
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
Tribunal applied guesswork and determined the income
of the deceased at Rs. 4,500/- per month and after
giving 50% prospective income and deducting 1/2
towards personal expenses and applying multiplier of
17 as the deceased was 30 years old on the date of
the accident, awarded a sum of Rs. 6,88,500/- as
compensation under the head of Future Loss of
Dependency and also further awarded Rs. 20,000/-
towards loss of love and affection and Rs. 10,000/-
towards funeral expenses and thus awarded total
compensation of Rs. 7,18,500/-. Being aggrieved by
the same, the present appeal is filed by the original
claimants.
5. Mr. Bhalodi, learned counsel appearing for the
appellants have contended that the Tribunal has
committed an error in determining the income of the
deceased at Rs.4,500/-. Mr. Bhalodi, learned counsel
appearing for the appellants however candidly
admitted that the appellants could not adduce any
evidence to prove the income of Rs. 8,000/- as
contended before the Tribunal. However, it was the
duty of the Tribunal to assess the income as per the
basic minimum wages standard as prevailing on the
date of the accident, i.e., 24.10.2015. Mr. Bhalodi,
relying upon the minimum wages standard as applicable
on the date of the accident, contended that as the
deceased was driving a heavy vehicle, he should be
considered as a skilled workman and as per the
minimum wages standard prevailing on the date of the
accident, the income could have been assessed at Rs.
7,886/- p.m. instead of 4,500/- p.m. Mr. Bhalodi
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
relying upon the judgment of the Apex Court in the
case of United India Insurance Co. Ltd. Vs. Satinder
Kaur alias Satwinder Kaur and Ors. reported in AIR
2020 SC 3076 contended that the appellants who are
parents, are entitled to consortium, which is not
considered by the Tribunal. On the aforesaid two
grounds, Mr. Bhalodi contended that the impugned
judgment and award be modified by partly allowing the
appeal.
5. Per contra, Mr.Mazmudar as well as Dr. Dwivedi,
learned advocates appearing for the respondent
insurance company of both the vehicles involved in
the accident opposed the appeals. The learned
counsel appearing for the insurance company contended
that in absence of any evidence, it cannot be
gainsaid that the deceased was a skilled workman.
According to learned advocate appearing for the
insurance company, the Tribunal has believed that the
deceased would be earning Rs.150/- per day and has
accordingly determined the income of the deceased at
Rs.4,500/-, which does not require any modification.
Mr. Mazmudar as well as Dr. Dwivedi contended that
the accident is of the year 2015 and therefore, the
appellants would not be entitled to consortium as
contended by the learned counsel appearing for the
appellants-original claimants. It was contended by
the learned counsel for the insurance companies that
the appeal being meritless, deserves to be dismissed.
6. No other or further submissions, grounds or
contentions have been raised by the learned counsel
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
appearing for the parties.
7. The learned counsel appearing for the insurance
company has drawn attention of this Court that while
determining the compensation under the head of loss
of dependency, the Tribunal has erroneously
considered the age of the deceased to be 30 years and
as per the record, the age of the deceased was 36
years and therefore, the multiplier would be 15 and
not 17.
8. Having heard the learned counsel appearing for
the parties, two questions arise in this appeal -
1) Whether the Tribunal has committed any error in
determining the income of the deceased by way of
guess work at Rs. 4,500/- per month or not?
2) Whether the appellants-original claimants would
be entitled to compensation under the head of
consortium or not?
9. Upon considering the submissions made and on
perusal of the impugned judgment and award, it is a
matter of fact that the appellants have not adduced
any evidence to prove the income. It was the case of
the appellants before the Tribunal that the income of
the deceased was Rs. 8,000/- being salary received as
driver of the truck. However, the Tribunal has
assessed the income at Rs.4,500/- per month merely by
way of guesswork. In case where no evidence of
income is adduced, it would be appropriate and save
to rely upon the minimum wages standard as applicable
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
on the date of the accident, especially when the case
of an employed person is to be considered. It is a
matter of fact that the deceased was working as
driver and that too a heavy vehicle. The learned
counsel for the appellants has therefore correctly
contended that the deceased has to be considered as
skilled workman because it requires special skill to
drive a heavy vehicle like truck. Upon considering
the minimum wages standard, as applicable on the date
of the accident qua skilled workman is concerned, the
same is Rs. 7,886/- per month and thus, we are of the
opinion that the Tribunal has committed an error in
determining the income of the deceased at Rs. 4,500/-
per month by guess work. We hold that the income of
the deceased as skilled workman should be considered
at Rs. 7,886/- per month based upon the minimum wages
standard as applicable. Thus, the question no.1
arising in this appeal is answered accordingly in
favour of the appellants.
10. As far as the second aspect is concerned,
following the ratio laid down by the Apex Court in
the case of Satindar Kaur (supra), Magma General
Insurance Company Limited vs. Nanuram alias Chuhru
Ram and Ors. reported in (2018) 18 SCC 130 and New
India Assurance Co. Ltd. v. Smt. Somwati & Ors
reported in (2020) 9 SCC 644 the appellants who are
parents of the deceased are entitled to filial
consortium of Rs.40,000/- each and hence, question
no.2 in this appeal is also answered in favour of the
appellants.
C/FA/3900/2021 JUDGMENT DATED: 19/01/2022
11. Having come to the aforesaid conclusion, the
appellants would be entitled to compensation as
under-
Rs.7,886/- (income) + Rs.3,154/- (40% prospective
income) = Rs. 11,040/- - Rs.5,520/- (1/2 deduction
toward personal expenses) = Rs.5,520/- X 12 X 15
(multiplier) = 9,93,600/- (Loss of Dependency)
Rs.9,93,600/- - Loss of Dependency
Rs. 80,000/- - Filial consortium to
parents
Rs. 15,000/- - Loss of estate
Rs. 15,000/- - Funeral expenses
----------------
Rs.11,03,600/- Total compensation
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12. Thus, the appellants would be entitled to total
compensation of Rs.11,03,600/-. The appeal is thus
partly allowed. Both the insurance companies shall
be liable to satisfy the modified award and deposit
the additional amount of Rs. 3,85,100/- with interest
at the rate of 6% on the additional amount from the
date of filing of the claim petition till its
realisation with proportionate costs with the
Tribunal as per the award within a period of 8 weeks
from the date of receipt of this judgment and order.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
BIJOY B. PILLAI
