Gujarat High Court
Thakor Vikram Suraji vs Zala Mahendrabhai Harjibhai on 17 June, 2022
Bench: Mauna M. Bhatt
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4958 of 2008
FOR APPROVAL AND SIGNATURE: SD/-
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 VIKRAM SURAJI
Versus
ZALA MAHENDRABHAI HARJIBHAI & 1 other(s)
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Appearance:
MR AMIT C NANAVATI(1384) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/06/2022
ORAL JUDGMENT
1. The appellant-original claimant has filed this appeal
under Section 173 of the Motor Vehicles Act, 1988 ("the
Act" for short) challenging the judgment and award dated
24.08.2007 passed by the Motor Accident Claims Tribunal
(Aux.) Presiding Officer, 4th Fast Track Court, Mehsana in
Motor Accident Claim Petition No. 164 of 2005.
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
2. The facts emerging from the record of the claim
petition are as under:
2.1 The father of the appellant Suraji Govaji Thakor was
going on his bicycle, from the office of his employer to Ravi
Shopping Centre situated at Old Jakat Naka on Mehsana-
Radhanpur Road. At that time, approximately around 03:00
p.m., the truck bearing registration No. GJ-12-U-5391
dashed Suraji Govaji from behind. On account of which, the
deceased sustained grievous injuries and was taken to the
hospital where he was declared dead. It was case of the
appellant-original claimant that the accident occurred on
account of rash and negligent driving on the part of the
driver of the truck. For the said accident, the appellant
preferred claim petition before Tribunal seeking
compensation of Rs. 5,00,000/-. In support of the claim
petition, the claimant led various evidences.
2.2 The Tribunal after hearing the parties and upon
appreciation of evidence on record decided the issue as
under:
I. For negligence, the Tribunal held the driver of the
truck bearing registration No. GJ-12-U-5391 as sole
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
negligent for occurrence of the said accident.
II. For income, the Tribunal awarded total compensation
of Rs. 1,57,000/- under different heads as below:
Sr. Head Amount
No.
1. Loss of future income Rs. 1,50,000/-
2. Funeral expenses Rs. 5,000/-
3. Loss of expectation of life and loss of estate Rs. 2,000/-
Total Rs. 1,57,000/-
2.3 Aggrieved by the quantum of compensation awarded
the appellant-original claimant filed present appeal
seeking enhancement.
3. I have heard learned advocate Mr. Amit C. Nanavati
for the appellant and learned advocate Mr. Sunil B. Parikh
for the respondent No.2-Insurance Company. As liability
has not been denied, presence of other respondent is not
necessary.
4. Appearing for the appellant, learned advocate Mr.
Amit C. Nanavati contended that the Tribunal is in error in
considering the notional income of the deceased at Rs.
15,000/- per annum. He contended that the deceased was
working as watchman in the society at Mehsana and was
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
earning Rs. 2,500/- p.m. In support of his submission, in
relation to income, he relied on the affidavit of the
claimant at Exh.-17; and the affidavit of one Thakor
Dadamben (daughter of the deceased), at Exh.-19. In both
the affidavits it was stated that the deceased was earning
Rs. 2,500/- p.m. He, thus, contended that the income of
the deceased considered by the Tribunal was contrary to
the material available on record.
4.1 In relation to prospective income, he contended that
the deceased was 40 years of age at the time of accident,
and therefore, he would have earned more income in
future, if he would have survived. Relying upon the
decision of Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and
others reported in (2017) 16 SCC 680, he contended
that the Tribunal is in error in not awarding prospective
income.
4.2 Further relying upon the judgment of the Hon'ble
Supreme Court in the case of United India Insurance
Company Vs. Satinder Kaur @ Satwinder Kaur
reported in AIR 2020 SC 3076, he contended to award
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
consortium accordingly. He also contended to award just
compensation under other heads i.e. loss of estate and
funeral expenses. He, thus, contended to allow the appeal
and enhance the compensation as claimed.
5. Per contra, learned advocate Mr. Sunil Parikh
appearing for the Insurance Company submitted that the
Tribunal has correctly appreciated the evidence on record.
In relation to income, he submitted that in absence of any
income proof the Tribunal has correctly considered the
notional income at Rs. 15,000/- p.a. With regard to the age
of the deceased, he contended that the post-mortem
report suggest the age of deceased between 40 to 45
years, and therefore, the correct multiplier as per the
decision of Hon'ble Supreme Court in the case of Sarla
Verma and others Vs. Delhi Transport Corporation
and another reported in (2009) 6 SCC 1211 would be
14 and not 15 as considered by the Tribunal. He, thus,
contended that the appeal being merit-less, may be
dismissed.
6. I have considered the rival submissions as also the
material available on record. Upon re-appreciation of
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evidence, It is noticed that there are two affidavits on
record at Exh.-17 and Exh.-19; one of appellant-original
claimant and other by daughter of deceased Suraji Govaji
respectively, which states that the deceased was earning
Rs. 2,500/- p.m. as his income by doing the work of
watchman in the society of Mehsana. I am of the opinion
that for the kind of work the deceased was doing, it is very
difficult to get the income proof. Moreover, there is no
cross-examination of witnesses by respondent-Insurance
Company. Therefore, considering the nature of work the
deceased was doing for his livelihood as also the minimum
wage applicable in the year 2005, in which the accident
took place, it would be appropriate to consider Rs.2,300/-
p.m. as income of the deceased. Further, as per the post-
mortem report, the deceased was of age between 40 to 45
years, and therefore, considering the decision of Hon'ble
Supreme Court in case of Pranay Sethi (supra) the
claimant would be entitled to 25% of prospective income.
As the deceased was survived by 1 dependent, 1/3
deduction would be appropriate for personal expenses.
Considering the age of the deceased ranging between 40
to 45 years as stated in the P.M. report, multiplier of 14
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
would be appropriate in view of decision of Hon'ble
Supreme Court in case of Sarla Verma (Supra).
Considering the above, the appellant would be entitled to
compensation under the head of future loss of income as
under:
"Rs. 2,300/- per month (income) + Rs. 575/- (25%
prospective income) = 2,875/- - 960/- (1/3 towards
personal expenses) = Rs. 1,915/- X 12 (p.a.) = Rs. 22,980/-
X 14 (Multiplier as the age of the deceased was 40 years)
= Rs. 3,21,720/-."
7. Having come to the aforesaid conclusion, I am of the
opinion that the appellant-original claimant would be
entitled to compensation as under:
Particulars Amount (Rs.)
Future loss of income Rs. 3,21,720/-
Loss of consortium Rs. 40,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Total Compensation Rs.3,91,720/-
8. Thus, the appellant-original claimant would be
entitled to total compensation of Rs. 3,91,720/-. As the
Tribunal has awarded an amount of Rs. 1,57,000/-, the
C/FA/4958/2008 JUDGMENT DATED: 17/06/2022
appellant-original claimant would be entitled to get
additional amount of Rs. 2,34,720/-. As the accident was of
the year 2005, the additional amount of Rs. 2,34,720/-
would bear interest at the rate of 6% from the date of filing
of application till its realization. The appeal filed by the
claimant is, thus, partly allowed. The judgment and
award of the Tribunal dated 24.08.2007 in MACP No. 164 of
2005 is modified to the aforesaid extent. The additional
amount shall be paid by the respondent-Insurance
Company within a period of 8 weeks from the date of
receipt of this judgment. However, there shall be no order
as to costs. Record and proceedings be sent back
forthwith.
9. As pointed out by learned advocates for the
respective parties, earlier the appeal was filed restricting
the claim of Rs. 2,00,000/-. In view of the enhancement of
claim amount, the additional court fees required shall be
paid within a period of one week from the date of receipt of
this judgment.
SD/-
(MAUNA M. BHATT,J)
T. J. Bharwad
