Gujarat High Court
Damor Sumitraben Jayeshbhai vs Durgashankar Kaniram Shankar ... on 21 July, 2022
Bench: Gita Gopi
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2589 of 2021
With
R/FIRST APPEAL NO. 2526 of 2021
With
R/FIRST APPEAL NO. 2527 of 2021
With
R/FIRST APPEAL NO. 2590 of 2021
With
R/FIRST APPEAL NO. 2525 of 2021
With
R/FIRST APPEAL NO. 4060 of 2021
With
R/FIRST APPEAL NO. 2582 of 2020
With
R/FIRST APPEAL NO. 2646 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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DAMOR SUMITRABEN JAYESHBHAI
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C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
DURGASHANKAR KANIRAM SHANKAR DELETED
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 4.1,4.2,4.3,4.4
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/07/2022
ORAL JUDGMENT
1. All these appeals arise out of one and the same
accident and hence, they are heard together and decided
by this common judgment. Before the Tribunal, the
original claimants had preferred separate claim petitions.
The details of the same are reproduced herein below in a
a tabular form:
Sr. Particulars of Particular of Compensation Compensation
No. First Appeal M.A.C.P. claimed awarded
1 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 7,83,200/-
2589 of 2021 177 of 2017
2 First Appeal No. M.A.C.P. No. Rs.15 Lacs Rs. 9,16,400/-
2525 of 2021 178 of 2017
3 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs.10,17,200/-
2526 of 2021 181 of 2017
4 First Appeal No. M.A.C.P. No. Rs.10 Lacs Rs. 6,74,800/-
2527 of 2021 176 of 2017
5 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 9,16,400/-
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
2590 of 2021 171 of 2017
6 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 8,76,400/-
2582 of 2020 172 of 2017
7 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 8,30,000/-
4060 of 2021 179 of 2017
2. Learned advocate Mr. Nishit Bhalodi appearing for
the original claimants assailed the impugned judgment
and orders passed in these appeals mainly on the aspect
of quantum of compensation. He submitted that the
Tribunal has seriously erred in assessing the monthly
income of deceased. In the absence of any documentary
proof having being produced by the claimants, the
Tribunal ought to have assessed the monthly income at
the wage rate fixed by the State Government at the
relevant point of time. Further, the Tribunal has also
erred in computing dependency benefit since the
deduction towards personal expenditure of the deceased
has not been done in accordance with the ratio laid down
by the Apex Court. He further submitted that the Tribunal
has not followed the judgment rendered by the Apex
Court in the case of Magma General Insurance
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors.
reported in (2018) A.C.J. 2782 in its proper
perspective while awarding compensation under the
heads of loss of consortium, loss of estate and funeral
expenses.
3. Learned advocate Mr. Rathin Raval for the
respondent-Insurance Company submitted that the
claimants have not produced any documentary evidence
on record to prove the aspect of income of deceased and
therefore, the Tribunal was justified in assessing the
monthly income, as recorded in the impugned judgments
and award. He further submitted that the compensation
awarded under the other conventional heads is also just
and reasonable and prayed that the same may not be
interfered with. Accordingly, it was prayed to dismiss the
appeals.
4. The facts on record suggests that in the early hours
of 14.11.2017 an accident took place between a Tractor
bearing registration No. GJ-20-TC-47 and a Truck bearing
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
registration No. RJ-27-GB-1848. In the said vehicular
accident, seven persons who were travelling in the
Tractor at the relevant time, including the driver, died on
the spot while others sustained severe bodily injuries. The
evidence on record suggested that the Truck in question
had dashed the Tractor from its rear side and
accordingly, the Tribunal assessed the negligence of the
drivers of the Truck and Tractor in the ratio of 20 : 80. In
the opinion of this Court, the contributory negligence
assessed by the Tribunal is just and appropriate and does
not require to be interfered with.
5. On the aspect of quantum of compensation, it
appears that the claimants had not produced any
documentary evidence on record to prove the income of
the deceased. All the deceased were labourers and doing
masonry work. When the claimants had not produced any
material on record to prove the aspect of monthly income
of the deceased, then the Tribunal ought to have assessed
the monthly income on the basis of the prevailing
minimum wages fixed by the State Government. The
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
Court is informed that Rs.7,500/- was the minimum
monthly wages that were prevailing at the relevant time.
Hence, this Court deems it appropriate to assess the
monthly income of deceased at Rs.7,500/- in all these first
appeals except First Appeal No.4060 of 2021.
5.1 In MACP No.179 of 2017, which is subject matter of
First Appeal No.4060 of 2021, the claimants have stated
that the monthly income of deceased was Rs.7,000/- at
the relevant time and hence, for the purpose of deciding
First Appeal No.4060 of 2021, the monthly income of
deceased is assessed at Rs.7,000/- instead of Rs.7,500/-.
6. In view of the above, the claimants shall be entitled
for the following amounts of compensation;
6.1 In First Appeal No.2589 of 2021 : The monthly
income of deceased could be assessed at Rs.7,500/-. By
adding 40% rise in prospective income in view of the
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.7,875/- per month and
Rs.94,500/- annually; and by adopting a multiplier of 18,
the total prospective income would come to
Rs.17,01,000/-. The claimants would be entitled for
Rs.15,000/- each under the heads of funeral expenses and
loss of estate respectively; and Rs.1,60,000/- under the
head of loss of consortium in view of the judgment in the
case of Magma General Insurance Company Ltd. v.
Nanu Ram @ Chuhru Ram & Ors. reported in (2018)
A.C.J. 2782. Thus, in all, the claimants would be entitled
for Rs.18,91,000/-. The Tribunal has already awarded
Rs.7,83,200/- as compensation and thus, the claimants
would be entitled for enhanced compensation of
Rs.11,07,800/-.
6.2 In First Appeal No.2526 of 2021 : The monthly
income of deceased could be assessed at Rs.7,500/-. By
adding 40% rise in prospective income in view of the
judgment rendered in the case of National Insurance
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.7,875/- per month and
Rs.94,500/- annually; and by adopting a multiplier of 18,
the total prospective income would come to
Rs.17,01,000/-. The claimants would be entitled for
Rs.15,000/- each under the heads of funeral expenses and
loss of estate respectively; and Rs.1,60,000/- under the
head of loss of consortium in view of the judgment in the
case of Magma General Insurance Company Ltd. v.
Nanu Ram @ Chuhru Ram & Ors. reported in (2018)
A.C.J. 2782. Thus, in all, the claimants would be entitled
for Rs.18,91,000/-. The Tribunal has already awarded
Rs.10,17,200/- as compensation and thus, the claimants
would be entitled for enhanced compensation of
Rs.8,73,800/-.
6.3 In First Appeal No.2527 of 2021 : The monthly
income of deceased could be assessed at Rs.7,500/-. By
adding 40% rise in prospective income in view of the
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/2 towards personal expenses, the
income would come to Rs.5,250/- per month and by
adopting a multiplier of 18, the total prospective income
would come to Rs.11,34,000/-. The claimants would be
entitled for Rs.15,000/- each under the heads of funeral
expenses and loss of estate respectively; and Rs.80,000/-
under the head of loss of consortium in view of the
judgment in the case of Magma General Insurance
Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors.
reported in (2018) A.C.J. 2782. Thus, in all, the
claimants would be entitled for Rs.12,44,000/-. The
Tribunal has already awarded Rs.6,74,800/- as
compensation and thus, the claimants would be entitled
for enhanced compensation of Rs.5,69,200/-.
6.4 In First Appeal No.2590 of 2021 : The monthly
income of deceased could be assessed at Rs.7,500/-. By
adding 40% rise in prospective income in view of the
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.7,875/- per month and
Rs.94,500/- annually and by adopting a multiplier of 16,
the total prospective income would come to
Rs.15,12,000/-. The claimants would be entitled for
Rs.15,000/- each under the heads of funeral expenses and
loss of estate respectively; and Rs.2,00,000/- under the
head of loss of consortium in view of the judgment in the
case of Magma General Insurance Company Ltd. v.
Nanu Ram @ Chuhru Ram & Ors. reported in (2018)
A.C.J. 2782. Thus, in all, the claimants would be entitled
for Rs.17,42,000/-. The Tribunal has already awarded
Rs.9,16,400/- as compensation and thus, the claimants
would be entitled for enhanced compensation of
Rs.8,25,600/-.
6.5 In First Appeal No.2525 of 2021 : The monthly
income of deceased could be assessed at Rs.7,500/-. By
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
adding 40% rise in prospective income in view of the
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.7,875/- per month and
Rs.94,500/- annually; and by adopting a multiplier of 16,
the total prospective income would come to
Rs.15,12,000/-. The claimants would be entitled for
Rs.15,000/- each under the heads of funeral expenses and
loss of estate respectively; and Rs.1,60,000/- under the
head of loss of consortium in view of the judgment in the
case of Magma General Insurance Company Ltd. v.
Nanu Ram @ Chuhru Ram & Ors. reported in (2018)
A.C.J. 2782. Thus, in all, the claimants would be entitled
for Rs.17,02,000/-. The Tribunal has already awarded
Rs.9,16,400/- as compensation and thus, the claimants
would be entitled for enhanced compensation of
Rs.7,85,600/-.
6.6 In First Appeal No.4060 of 2021 : The monthly
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
income of deceased could be assessed at Rs.7,000/-. By
adding 25% rise in prospective income in view of the
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.8,750/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.6,563/- per month and by
adopting a multiplier of 15, the total prospective income
would come to Rs.11,81,340/-. The claimants would be
entitled for Rs.15,000/- each under the heads of funeral
expenses and loss of estate respectively; and
Rs.2,00,000/- under the head of loss of consortium in view
of the judgment in the case of Magma General
Insurance Company Ltd. v. Nanu Ram @ Chuhru
Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in
all, the claimants would be entitled for Rs.14,11,340/-.
The Tribunal has already awarded Rs.8,30,000/- as
compensation and thus, the claimants would be entitled
for enhanced compensation of Rs.5,81,340/-.
6.7 In First Appeal No.2582 of 2020 : The monthly
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
income of deceased could be assessed at Rs.7,500/-. By
adding 40% rise in prospective income in view of the
judgment rendered in the case of National Insurance
Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC
5157, the monthly income would come to Rs.10,500/- and
after deducting 1/4th towards personal expenses, the
income would come to Rs.7,875/- per month and by
adopting a multiplier of 16, the total prospective income
would come to Rs.15,12,000/-. The claimants would be
entitled for Rs.15,000/- each under the heads of funeral
expenses and loss of estate respectively; and
Rs.2,00,000/- under the head of loss of consortium in view
of the judgment in the case of Magma General
Insurance Company Ltd. v. Nanu Ram @ Chuhru
Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in
all, the claimants would be entitled for Rs.17,42,000/-.
The Tribunal has already awarded Rs.9,16,400/- as
compensation and thus, the claimants would be entitled
for enhanced compensation of Rs.8,25,600/-.
7. Insofar as the rate of interest awarded by the
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
Tribunal in each of the claim petitions is concerned, it is
clarified that the claimants shall be entitled for interest at
the rate awarded by the Tribunal on the amounts of
compensation already awarded by it; whereas, on the
enhanced amount of compensation, the claimants shall be
entitled for interest at the rate of 7.5% per annum.
Except F.A. No.2646 of 2020, all the appeals are partly
allowed to the above extent and the impugned judgment
and awards stand modified accordingly. No order as to
costs. First Appeal No.2646 of 2020 arising out of the
same accident, is the injury claim, be listed in fourth
week of August 2022.
(GITA GOPI, J)
PRAVIN KARUNAN
