Gujarat High Court

Kaliben Baldevbhai Desai vs Maheshbhai Hirabhai on 17 June, 2022

Bench: Hemant M. Prachchhak

     C/FA/5069/2008                                 JUDGMENT DATED: 17/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 5069 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                      KALIBEN BALDEVBHAI DESAI & 5 other(s)
                                    Versus
                        MAHESHBHAI HIRABHAI & 2 other(s)
================================================================
Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3,4,5,6
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR PARESH M DARJI(3700) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                Date : 17/06/2022

                                ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and

award dated 28.09.2007 passed by the learned Motor Accident

Claims Tribunal (Aux.), and First Fast Track Court, Mehsana

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

(hereinafter be referred to as "the Tribunal") in M.A.C.P. No.1235

of 2001, the appellants - original claimants have preferred this

appeal under Section 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as the "Act".)

2. Following facts emerge from the record of the appeal -

2.1 That the accident occurred on 20.07.2001 near Matar

Chokdi at about 2.00 p.m. It is the case of the claimants that the

deceased Bhikhabhai Patel, deceased Baldevbhai Ghelabhai

Desai and injured Vishnubhai Patel were travelling in one Jeep

bearing registration No.GJ-01-HE-7791 and when they reached

near the scene of accident, a Truck came from opposite direction

dashed with the jeep, which has resulted into the accident in

which the deceased sustained serious injuries and ultimately

succumbed to the injury. The FIR was lodged with the

jurisdictional police station at Exhibit 26 and the claim petition

was filed under Section 166 of the Act by the appellants -

claimants claiming compensation of Rs.7,00,000/-. The wife of

the deceased Baldevbhai was examined at Exhibit 25.

2.2 The appellants relied upon the documentary evidence such

as FIR at Exhibit 26, Panchnama of the scene of occurrence at

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

Exhibit 27, R.C. Book at Exhibit 28, P.M. Report of deceased

Baldevbhai at Exhibit 29, Death certificate of baldevbhai at

Exhibit 31.

3. Heard Mr.Y. M. Thakore, learned counsel for the appellants,

Mr.Paresh Darji, learned counsel for respondent no.2 and

Mr.Dakshesh Mehta, learned counsel for respondent no.3 -

Insurance Company.

4. Mr.Thakore, learned counsel for the appellants submitted

that the Tribunal has not properly appreciated the documentary

evidence while determining the income of the deceased. He

submitted that the Tribunal has wrongly applied multiplier of 14.

He submitted that the Tribunal has not awarded future

prospective income. He further submitted that the impugned

judgment and award be modified by partly allowing the appeal.

5. Per contra, Mr. Mehta, learned counsel for respondent no.2

submitted that the Tribunal has not committed any error in

awarding the compensation and, therefore, the appeal being

meritless, deserves to be dismissed.

6. Mr.Mehta, learned counsel for respondent no.3 has

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

opposed the appeal and submitted that though there was no

cogent evidence to determine the income of the deceased, the

Tribunal has rightly determined the income of the deceased. He

submitted that the multiplier applied by the Tribunal is just and

proper and, therefore, the impugned judgment and award is in

consonance with the settled legal principles. He further

submitted that the appeal being meritless, deserves to be

dismissed.

7. No other or further submissions, grounds or contentions

have been raised by learned counsel appearing for the

respective parties.

8. Following questions arise in this appeal -

(a) Whether the Tribunal has committed an error in determining the income of the deceased or not?

(b) Whether the Tribunal has committed any error in applying the multiplier in determining the quantum of the compensation or not?

9. Having considered the averments made in the appeal,

submissions made by the learned counsel appearing for both the

sides and considered the facts of the case and perused the

record and proceedings. It appears that there is no cogent or

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

valid materials to show that the deceased was aged 40 years,

however, considering the P.M. Report more particularly at Exhibit

29, it emerges that the age of the deceased was 40 years at the

time of accident and, therefore, multiplier would be applied 15

instead of 14. Considering the fact that the Tribunal assessed the

income of Rs.1500/- per month of the deceased and if the same

is considered as it is, 25% future prospective income is required

to be added. It also appears that the deceased was not working

in any government institutions and he was earning by doing

brokerage work and, therefore, the future prospective income is

to be added as 25% considering the age of the deceased.

Considering the impugned award, it appears that the Tribunal

deducted 1/3rd personal expenses instead of 1/4th. Considering

the ratio laid down by the Hon'ble Supreme Court in the case of

Sarla Verma and others Vs. Delhi Transport Corporation

and another, (2009) 6 SCC 121 and National Insurance

Company Limited Vs. Pranay Sethi and others, (2017) 16

SCC 680, 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.1500/- plus 25% rise and

appeal requires to be allowed and the impugned judgment and

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

award requires to be substituted by enhancing the amount

of compensation. Thus, questions arising in this appeal are

answered accordingly.

10. Having come to the aforesaid conclusion, the appellants

would be entitled to compensation as under:-

Rs.1500/- (income) + Rs.375/- (25% rise) = Rs.1875/- - Rs.2,53,080-00 Rs.468/- (1/4th deduction toward personal expenses) = Rs.1407/- x 12 month = Rs.16872/- x 15 (multiplier) Consortium Rs.1,20,000-00 Loss of estate Rs.15,000-00 Funeral expenses Rs.15,000-00 Total compensation Rs.4,03,080-00 Less: Awarded amount by the Tribunal Rs.1,90,500-00 Additional amount Rs.2,12,580-00

Accordingly a sum of Rs.2,12,580/- 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.1,90,500/- awarded by the

Tribunal. However, the appellants are entitled to the additional

amount of compensation of Rs.2,12,580/- along with interest at

the rate of 7.5% from the date of application till realization of the

amount.

C/FA/5069/2008 JUDGMENT DATED: 17/06/2022

11. Thus the appellants would be entitled to total

compensation of Rs.4,03,080/-. The appeal is partly allowed. The

Insurance Company shall be liable to satisfy the modified award