Gujarat High Court
Thakor Madhuben Wd/O Sureshji ... vs Ashokbhai Haribhai Rami on 4 January, 2022
Bench: Niral R. Mehta
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1361 of 2020
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 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 NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THAKOR MADHUBEN WD/O SURESHJI BABUJI
Versus
ASHOKBHAI HARIBHAI RAMI
==========================================================
Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1,2,3,4
DS AFF.NOT FILED (N)(11) for the Defendant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 04/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment and
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
award dated 22.2.2018 passed in MAC Petition No.347 of
2012 by the MAC Tribunal (Aux.), Mehsana, the appellants -
original claimants have preferred this Appeal under Section
173 of the Motor Vehicles Act, 1988 (hereinafter referred to
as 'the Act' for the sake of brevity).
2. The following facts emerge in nutshell from the record of
this Appeal;
2.1 That the accident occurred on 11.6.2012 at about 12.00
midnight on Mehsana-Vijapur Road near Rupal Village. It is
the case of the claimants that the deceased Suraji was
travelling on his Motorbike bearing Registration No.GJ-2-AS-
3866 and when it reached the scene of occurrence, the Truck-
Trailer bearing Registration No.GJ-12-Y-7406 which was
rushed on the front of the motorbike, stopped suddenly,
because of which the motorbike driven by the deceased
dashed with the truck. It is the case of the claimant that the
deceased sustained serious injuries and ultimately,
succumbed to the same, after being taken to the Mehsana
Civil Hospital for the treatment. An FIR was lodged with
Mehsana Taluka Police Station and the present claim petition
was filed under Section 166 of the Act, claiming compensation
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
of Rs.21,00,000/-. It was the case of the claimants that the
deceased was 22 years old and was earning Rs.15,000/- per
month out of labour as a masoner.
2.2 The father of the claimant - Thakore Babuji Varvaji was
examined at Exh.14 and the claimants also relied upon the
documentary evidence; FIR at Exh.15, Panchnama of scene of
occurrence at Exh.16, Inquest Panchnama at Exh.17, PM Note
at Exh.18, RC Book of Truck-Trailer at Exh.19 and Insurance
Policy of Truck-Trailer at Exh.20.
2.3 The Tribunal, in absence of any cogent evidence with
regard to the income, considered the income of the deceased
at Rs.4000/- and applying the multiplier of 18, granted 40%
prospective income and thus, awarded total compensation of
Rs.9,07,200/- under the head of loss of dependency. Over and
above the same, the Tribunal also granted a sum of
Rs.70,000/- under the heads of loss of consortium, loss of
estate and funeral expenses. The Tribunal, after appreciating
the Panchnama and FIR at Exh.16 and Exh.15 respectively,
considered the aspect as to how the accident occurred and
came to the conclusion that the driver of the truck-trailer was
negligent to the extent of 70%, whereas the deceased as
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
driver of the motorbike was negligent to the extent of 30%
and thus, while partly allowing the claim petition, awarded
total compensation of Rs.6,86,040/- with 9% interest. Hence,
being aggrieved by the same, the present Appeal is filed by
the claimants.
3. Heard Mr.A.V.Prajapati, learned counsel appearing for
the appellants and Mr.Sunil B. Parikh, learned counsel
appearing for the respondent No.2 - Insurance Co. Since the
liability is not challenged, the presence of other party is not
necessary for deciding the present Appeal.
4. With consent of learned counsel appearing for the
respective parties, the Appeal is taken up for its final disposal
forthwith.
5. The learned counsel appearing for the parties have also
produced the photocopies of the relevant evidence adduced
before the Tribunal.
6. Mr.A.V.Prajapati, learned counsel appearing for the
appellants, contended that the accident has occurred on
11.6.2012 even though there was no evidence. However, the
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
fact remains that as per the oral deposition of the claimants, it
is established that the deceased was working as masoner and
was earning at least Rs.5000/- per month. Mr.Prajapati
contended that in absence of any documentary evidence, the
Tribunal ought to have considered minimum wages standard
as prevailing on the date of accident to determine the income
of the deceased. Learned counsel further contended that as
per the judgment of the Apex Court in the case of United
India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder
Kaur & Ors., reported in AIR 2020 SC 3076, the appellant
No.2 would be entitled to parental consortium, whereas the
appellant Nos.3 and 4 as parents of the deceased would be
entitled to filial consortium. Mr.Prajapati contended that on
both these aspects, the impugned judgment and award
deserves to be modified while allowing the appeal.
7. Per contra, Mr.Sunil B. Parikh, learned counsel
appearing for the respondent No.2 - Insurance Co., contended
that in absence of any evidence, the Tribunal has not
committed any error in determining the income of the
deceased at Rs.4000/- per month. According to Mr.Parikh, the
compensation awarded by the Tribunal is just and adequate
and no interference is called for. Mr.Parikh also contended
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that the ratio laid down by the Apex Court in the case of
Satinder Kaur (Supra) would not be applicable to the case on
hand. It was lastly contended by Mr.Parikh that the appeal
being meritless, deserves to be dismissed.
8. No other or further submissions and/or grounds are
raised by learned counsel appearing for the respective
parties.
9. Having perused the oral evidence, the deposition of the
claimant - Thakore Babuji Varvaji at Exh.14 as well as the
Records and Proceedings received from the Tribunal, it
clearly appears that the claimants have established that the
deceased was working as masoner. However, the fact remains
that no evidence was led by the appellants to even remotely
prove the income of the deceased. The recognized standard to
determine the income in absence of any income is to apply
minimum wages standard as applicable on the date of the
accident. On perusal of the same, even if we consider that the
deceased was working as masoner, he can be said to be a
skilled labourer, the minimum wages standard as applicable
was Rs.4820/- and, therefore, the income of the deceased can
safely be determined as Rs.4820/-. Having come to the
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aforesaid conclusion, the appellants - claimants would be
entitled to compensation under the head of loss of
dependency as under :
"Rs.4820/- per month (income) + Rs.1928/- (40%
prospective income) = 6748/- x 12 = Rs.80976/- (1/4th
towards personal expenses = Rs.20444/- (-) =
Rs.60,732/- x 18 (Multiplier as the age of the deceased
was 22 years) = Rs.10,93,176/-"
10. Mr.Prajapati, learned counsel appearing for the
appellants has rightly relied upon the judgment of the Apex
Court in the case of Satinder Kaur (Supra). The appellant
No.2 being minor son of the deceased would be entitled to
parental consortium of Rs.40,000/- and the parents would also
be entitled to filial consortium of Rs.40,000/- each. As far as
the negligence is concerned, no dispute or contention is
raised and hence, the appellants would be entitled to
compensation as under :
Particulars Amount (Rs.)
Future loss of income 10,93,176/-
Spousal Consortium 40,000/-
Parental consortium 40,000/-
Filial Consortium 80,000/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
C/FA/1361/2020 JUDGMENT DATED: 04/01/2022
Total 12,83,176/-
11. The Tribunal has assessed the negligence of the
deceased to the extent of 30% and hence, an amount of
Rs.3,94,953/- is required to be deducted from the total
amount of compensation of Rs.12,83,176/- which comes to
Rs.9,98,223/- (Rs.12,83,176/- (-) Rs.3,94,953/-). The Tribunal
has in all awarded Rs.6,84,040/- and hence, the appellants
would be entitled additional compensation of Rs.2,14,183/-
with 6% interest from from the date of filing the claim petition
till its realization.
12. The appeal is partly allowed. The impugned judgment
and award stands modified to the aforesaid extent. The
respondent No.2 - Insurance Co. shall deposit the additional
amount as awarded by this Court, within a period of 8 weeks
from today. However, there shall be no order as to costs. R &
P be sent back to the Tribunal concerned, forthwith.
(R.M.CHHAYA,J)
(NIRAL R. MEHTA,J)
V.J. SATWARA
