J Ravikumar Shastri vs Naginbhai Ramanbhai Vasava
2022 Latest Caselaw 5055 Guj

     C/FA/1849/2011                                  JUDGMENT DATED: 10/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 1849 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                      J RAVIKUMAR SHASTRI & 1 other(s)
                                  Versus
                  NAGINBHAI RAMANBHAI VASAVA & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 10/06/2022

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - claimants for

C/FA/1849/2011 JUDGMENT DATED: 10/06/2022

enhancement, being aggrieved and dissatisfied with the common judgment and award dated 02.07.2008 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.2417 of 1998, by which the Tribunal has awarded compensation of Rs.1,51,000/- with 7.5% per annum interest to the claimants, holding Opponents i.e. driver, owner and insurance company of the truck liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 10.04.1998 at about 5:00 p.m., the deceased was going to Ajwa from Baroda in Maruti Car bearing registration No.GBP-958 along with the relatives. At that time, one Aditya was driving the car at reasonable and moderate speed on correct side of the road. When they reached near village : Jesingpura, opponent No.1 - Truck dumper bearing registration No. GTB-4946 came in excessive speed with rash and negligent manner on wrong side and dashed with the car. As a result, the claimant sustained serious injuries.It is noted that other relatives who were travelling with the deceased in the said car have also received serious injuries. Therefore, the claim petition is filed by the claimants to get the compensation of Rs.5 lakhs with interest.

2.2 Notices were served to the opponents. Opponents No.3 - insurance company has filed its written statement and denied the claim petition.

2.3 The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal, which are mentioned in para 19(i) & 19(ii) [internal Page Nos.15 to 17] of the impugned award. After considering the various

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documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4 Hence, the present appeal is by the claimants for enhancement before this Court.

3. Learned advocate Mr. MTM Hakim for the appellants - claimants has submitted that the Tribunal has committed an error by considering the income of only Rs.3,000/- per month. In support of his case, learned advocate for the claimants has relied on the decision of Hon'ble Apex Court in the case of Kurvan Ansari alias Kurvan Ali and Another v ersus Shyam Kishore Murmu and Another reported in (2022) 1 SCC 317. Further, he has submitted that the Tribunal has not considered prospective rise in the income while awarding future loss of income. He has submitted that the Tribunal has not properly applied the multiplier looking to the age of the deceased, as he was aged about 12 years. He has submitted that the Tribunal has not awarded compensation under the head of loss of consortium. He has submitted that the Tribunal has awarded very meager amount towards loss of expectation. He has submitted that the Tribunal ought to have awarded more compensation towards funeral expenses. He has submitted that interference may be called for by this Court in the impugned judgment. He has submitted that this appeal may be allowed and the amount of compensation may be enhanced.

4. Per contra, Mr. Sunil Parikh, learned advocate for the insurance company has submitted that the Tribunal has rightly awarded compensation to the claimants. He has submitted that no interference may be called for in the impugned judgment by this

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Court. He has submitted that the Tribunal has rightly considered income of the deceased as the deceased was a student and not an earning member. He has submitted that the Tribunal has accordingly considered the proper rise in the income. He has submitted that looking to the age of the deceased 12 years, the Tribunal has rightly considered the multiplier and also rightly deducted the personal expenses. He has submitted that since the deceased was a student, the Tribunal has rightly awarded compensation towards loss of expectation. He has submitted that the Tribunal has not committed any error in awarding amount of funeral expenses. He has submitted that the Tribunal has awarded just and proper compensation to the claimants and therefore, no interference is called for by this Court in the impugned judgment. He has submitted that this appeal may be dismissed.

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

6.1 We have considered the submissions made by the rival parties. We have perused the record and proceedings of the Tribunal. We have gone through the impugned judgment and award passed by the Tribunal. Now the question for consideration before this Court is as to whether the Tribunal has awarded just compensation by

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considering the aspects of income, prospective income and multiplier.

6.2 The contention that the Tribunal has not properly considered the income of the deceased is concerned, it is a matter of record that the deceased was young and energetic at the time of accident. The deceased was studying in English Medium school and getting excellent result. It is a matter of record that the deceased belongs to the highly educated and well settled family. The deceased had a bright future ahead. The Tribunal has erred in considering the monthly income in the facts noted above. This Court has taken into consideration the view taken by the Hon'ble Supreme Court in the case of Kurvan Ansari (supra) as well as the view taken by this Court in the case of Lakhpatsinh Ramsinh Jadeja versus Azarudin Sabirayub in First Appeal No.5105 of 2019 dated 08.02.2022 is also kept in mind. Therefore, considering the peculiar facts as well as decisions noted above, it would be appropriate to take notional income of the deceased at Rs.25,000/- per annum. Accordingly, when the notional income is multiplied with applicable mltiplier of 15, as prescribed in Schedule II for the claims under Section 163-A of the Motor Vehicles Act, 1988 and as per the decision of Hon'ble Apex Court in the case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, it comes to Rs.3,75,000/- (Rs.25,000/- x multiplier 15) towards loss of dependency.

6.3 Further, so far as the loss of consortium is concerned, it is noted that the claimants are the parents of the deceased daughter, who was aged about 12 years at the time of accident. It is obvious that the parents have much love and affection towards the child. The deceased was studying with good result. Naturally, the parents have

C/FA/1849/2011 JUDGMENT DATED: 10/06/2022

lot of expectation with such a brilliant child. Therefore, it would be just and proper to award compensation of Rs.40,000/- each towards the loss of consortium, keeping in view the decisions of Hon'ble Apex Court in the case of :- (i) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (ii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780.

6.4 Further, the Tribunal has not properly awarded compensation towards funeral expenses to the claimants. Considering the decision of Hon'ble Apex Court in the case of Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130, the compensation of Rs.15,000/- towards funeral expenses should be awarded to the claimants.

6.5 Thus, the appellants - claimants are entitled to get the following final amount as compensation :

                              Particulars                      Amount (Rs.)
         Loss of dependency                                               3,75,00/-
         Loss of consortium                                                80,000/-
         Funeral expenses                                                  15,000/-
                                                   Total...               4,70,000/-


6.6     Thus, the Tribunal has committed an error in awarding total

compensation of Rs.1,51,000/- under various heads. The appellants - original claimants are entitled to get the additional amount of compensation of Rs.3,19,000/- over and above the amount of Rs.1,51,000/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.3,19,000/- to the appellants - original claimants together with

C/FA/1849/2011 JUDGMENT DATED: 10/06/2022

interest @ 6% per annum from the date of the claim petition till realization. Rest of the direction(s) of the Tribunal if any, shall remain same.

7. For the reasons recorded above, the following order is passed.

7.1     The present appeal is partly allowed.

7.2     The common judgment and award dated 02.07.2008 passed by

the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.2417 of 1998 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above.

7.3 The opponent No.3 - insurance company is directed to deposit Rs.3,19,000/- (enhanced amount) before the concerned Tribunal, within a period of four weeks from the date of receipt of this order.

7.4 The Tribunal shall disburse the entire awarded amount (including the enhanced amount) lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimants, by account payee cheque, after proper verification and after following due procedure.

7.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.

7.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(R.M.CHHAYA,J)

(SANDEEP N. BHATT,J) M.H. DAVE