Gujarat High Court
Femidabanu Harun @ Harun Gani ... vs Mahadevbhai Mansinghbhai on 31 January, 2022
Bench: Hemant M. Prachchhak
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2287 of 2007
FOR APPROVAL AND SIGNATURE:
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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FEMIDABANU HARUN @ HARUN GANI GHANCHI & 2 other(s)
Versus
MAHADEVBHAI MANSINGHBHAI & 4 other(s)
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1,2,3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 31/01/2022
ORAL JUDGMENT
1. This appeal is filed by the appellants - claimants seeking
enhancement of the compensation amount awarded by the
Motor Accident Claims Tribunal, Viramgam (hereinafter referred
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
to as "the Tribunal") vide impugned judgment and award dated
29.11.2006 passed in M.A.C.P. No.21 of 2004.
2. Brief facts of the present case are that on the day of the
incident, the husband of claimant no.1 - Femidabanu was going
to bring oil in Tanker bearing registration No.GRX-3353 and near
Viramgam, while he was crossing Hasalpur Cross Road, at that
time, one Truck bearing registration No.GJ-1-VV-9520 came from
Viramgam dashed with the Tanker driven by the husband of the
claimant no.1, as a result of which, he sustained serious injury
and succumbed to the injury. Hence, the legal heirs of deceased
have filed the above-mentioned claim petition before the
Tribunal. The Tribunal, after evaluating the pleadings and
evidence tendered by the parties, partly allowed the claim
petition and awarded a sum of Rs.3,41,000/- under the different
heads as against the claim of Rs.6,00,000/-.
3. Short question involved in the present appeal is that
whether the Tribunal has committed an error while determining
the calculation of the amount of income of the deceased.
4. It came to be held by the Tribunal that said amount was
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
ordered to be awarded to the deponents. Not being satisfied with
the compensation amount, this appeal has been filed.
5. Heard Mr.A. V. Prajapati, learned counsel appearing for the
appellants and Mr.Palak Thakkar, learned counsel appearing for
the respondent no. 5 - Insurance Company. Though served,
nobody appears on behalf of rest of the respondents.
6. Mr.Prajapati, learned counsel appearing for the appellants
has submitted the same facts which are narrated in the memo of
appeal. He has submitted that the salary of the deceased was
Rs.4500/- per month (Rs.3000/- per month plus other allowances)
and the certificate to that effect has been issued by opponent
no.4 and also produced the copies of the income tax returns of
the deceased. He has submitted that the Tribunal has not
considered the prospective income of the deceased. He has
submitted that looking to the evidence on record and the
affidavit filed by opponent no.4, it appears that the deceased
was paid salary of Rs.4500/- per month and, therefore, the
prospective income of the deceased would come to Rs.4500/- x 2
= Rs.9000/- plus Rs.4500/- = Rs.13500/- divided by 2 =
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
Rs.6750/- per month. He has submitted that the Tribunal has
committed an error while passing the impugned judgment and
award. He has submitted that the judgment and award may be
modified and substituted to the extent. He has also submitted
that the compensation amount may be enhanced.
7. Per contra, Mr.Thakkar, learned counsel appearing for
respondent - Insurance Company has supported the impugned
judgment and award passed by the Tribunal. He has submitted
that so far as the income of the deceased is concerned, there is
no cogent and proper proof or evidence led by the appellants
about the income of the deceased and even the multiplier
applied by the Tribunal is just and proper and, therefore, no
interference is called for.
8. I have considered the averments made in the appeal,
submissions made by the learned counsel appearing for both the
sides and gone through the impugned judgment and award and
perused the record and proceedings of the case. It also appears
from the record that the offence came to be registered against
the driver of the offending truck being C.R.No.I-67/2004 before
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
the jurisdictional police station.
9. Considering the ratio laid down by the Hon'ble Supreme
Court in the case of National Insurance Company Limited
Vs. Pranay Sethi and others, (2017) 16 SCC 680 = 2017,
Magma General Insurance Company Limited Vs. Nanu
Ram alias Chuhru Ram and others, (2018) 18 SCC 130 and
United India Insurance Company Limited Vs. Satinder
Kaur alias Satwinder Kaur and others, AIR 2020 SC 620, I
am of the considered opinion that the appellants are entitled to
get additional amount of compensation considering the income
of the deceased at Rs.3000/- plus 40% rise and appeal requires
to be allowed and the impugned judgment and award requires to
be substituted by enhancing the amount of compensation and,
therefore, the compensation is enhanced under the following
heads:-
Future Loss of Income: Rs.5,71,200/-
Rs.3000/- x 40% (future rise) = Rs.1200/-
Rs.3000 + Rs.1200/- = Rs.4200/-
Rs4200/- x 1/3rd = Rs.2800/- (Rs.4200 - Rs.1400)
Rs.2800 x 12 = Rs.33600/-
Rs.33600 x 17
Loss of consortium Rs.40,000/-
Loss of parental consortium Rs.80,000/-
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Total amount Rs.7,21,200/-
Less: amount of compensation awarded by the Tribunal Rs.3,41,000/-
Additional amount of compensation Rs.3,80,200/-
Accordingly a sum of Rs.3,80,200/- as additional
compensation requires to be awarded towards future loss of
income, which is just and reasonable compensation and the
same is awarded in addition to Rs.3,41,000/- awarded by the
Tribunal. However, the appellants are entitled to the additional
amount of compensation of Rs.3,80,200/- along with interest at
the rate of 6% from the date of application till realization of the
amount.
10. For the foregoing reasons, the following order is passed:-
(i) Appeal is allowed in part.
(ii) Judgment and award dated 29.11.2006 passed by the
Motor Accident Claims Tribunal, Viramgam in M.A.C.P.
No.21 of 2004 is hereby modified and in addition to what
has been awarded by the Tribunal, a sum of Rs.3,80,200/-
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
as additional amount with interest at the rate of 6% per
annum is awarded in favour of the appellants which shall
be from the date of filing claim petition till date of its
realization.
(iii) The Insurance Company is directed to deposit additional
amount of compensation with 6% interest as early as
possible within an outer limit of eight weeks from the date
of receipt of certified copy of this order.
(iv) It is made clear that the additional amount of
compensation with 6% interest is to be deposited by
respondent No.5 - National Insurance Company Limited
and respondent No.3 - National Insurance Company
Limited as per the impugned judgment and award passed
by the Tribunal.
(v) The apportionment and order for disbursement as made
by the Tribunal in paragraph no.14 of the operative
portion of the order shall hold good for the additional
amount of compensation.
C/FA/2287/2007 JUDGMENT DATED: 31/01/2022
(vi) After deposit of the additional amount of compensation,
the same shall be disbursed in favour of the appellants -
claimants by way of account payee cheque, after proper
verification.
(vii) The appellants are directed to pay deficit court fees on
the enhanced amount within four weeks from the date of
receipt of certified copy of this order, if any.
(viii) Decree be drawn accordingly.
Record and proceedings be sent back to the concerned
Tribunal forthwith. Pending civil applications, if any, shall stand
disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
