Gujarat High Court
Jayaben Shantilal Bhatt vs Laik Zuher Husen Saiyed on 24 June, 2022
Bench: Sandeep N. Bhatt
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2539 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. 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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JAYABEN SHANTILAL BHATT & 1 other(s)
Versus
LAIK ZUHER HUSEN SAIYED & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2
MR VASANTS SHAH(810) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/06/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellants - original claimants, being
aggrieved and dissatisfied with the judgment and award dated
15.9.2004 passed by the Motor Accident Claims Tribunal (Aux.),
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
Vadodara in Motor Accident Claim Petition No.673 of 1994, by
which the Tribunal has awarded compensation of Rs.1,66,000/- with
9% per annum interest to the claimants, holding all the opponents
liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 14.05.1994 at about 10:00 p.m., the deceased -
Kamleshbhai Shantilal Bhatt was going from Vadodara to his home
at Parda by driving his moped bearing registration No.GRF-1419 on
the correct side of the road. At that time, one truck bearing
registration No.KA/38/251, driven by opponent No.1 came from
behind Moped, in rash an negligent manner, in excessive speed,
without blowing born and without taking care of traffic rules and has
lost his control over his truck. Therefore, the front foot of the truck's
left side collided against the back portion of the moped and crushed
the deceased. As a result, the deceased - Kamleshbhai Shantilal
Bhatt died on the spot and the moped was also damaged greatly. At
the time of accident, the deceased was aged about 21 years old and
was earning Rs.1,760/- per month by working in South Zone
Corporation India Ltd. He was getting many benefits for example
H.R.A., provident fund, gratuity, leave encasement, over time,
bonus, etc. Thereafter, a police complaint was registered with
Taluka Police Station against opponent No.1. Therefore, the claim
petition is filed by the parents of the deceased to get the
compensation with interest.
2.2 Notices were served to the opponents. None were present
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
except Opponents No.3 - insurance company. Opponent No.3 -
insurance company has filed its written statement by disputing all
the averments made by the claimants in the claim petition. Further,
the Tribunal has framed the issues for its determination.
2.3 After considering the 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 Being aggrieved and dissatisfied with the impugned judgment
and award passed by the Tribunal, the present appeal is preferred by
claimants - parents of the deceased before this Court for
enhancement.
3.1 Learned advocate Mr. M.T.M. Hakim for the appellants -
original claimants has submitted that the Tribunal has committed an
error in not properly calculating the amount of compensation. He has
submitted that amount awarded is on lower side as the Tribunal has
not properly considered the various aspects i.e. factual as well as
legal aspects.
3.2 He has submitted that the Tribunal has committed an error in
considering monthly income of Rs.2,305/- per month, which should
be Rs.3,000/-.
3.3 Further, he has submitted that after deducting 2/3rd from that
amount, the dependents - parents will receive Rs.760/- per month,
which is highly erroneous.
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
3.4 He has submitted that the Tribunal has committed an error in
not properly considering the multiplier, keeping in view the age of
the deceased as well as age of the parents and considering the
decision of the Hon'ble Apex Court in the case of (i) Sarla Verma &
Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6
SCC 121 (ii) National Insurance Company Limited versus Pranay
Shethi reported in (2017) 16 SCC 680, multiplier of 18 would be just
and proper to award in the facts and circumstances of the present
case..
3.5 Further, he has submitted that the Tribunal has not properly
appreciated the evidence of Anilbhai - one of the employee, which is
produced at Exh.28, who has deposed that the deceased was
contributing Rs.131/- per month in provident fund and more
particularly, deceased was entitled for gratuity also.
3.6 Further, he has submitted that the Tribunal has not properly
considered the aspect of quantum by considering the amount of
compensation under various heads and the Tribunal has committed
gross error in not properly considering under various heads; like
loss of dependency, multiplier, aspect of income as well as
deduction by keeping in view the decision of the Hon'ble Apex
Court in the case of (i) Sarla Verma & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 (ii) National
Insurance Company Limited versus Pranay Shethi reported in
(2017) 16 SCC 680.
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
3.7 Further, he has submitted that the Tribunal has failed to
consider the amount under the head of conventional heads i.e. under
the heads of loss of consortium, funeral expenses and loss of estate,
therefore, he has prayed that the Tribunal has committed gross error
in not awarding amount towards conventional heads, therefore, he
has prayed to allow the present appeal by enhancing the amount of
compensation and by considering the his submissions.
4. Per contra, Mr. Vasants Shah, learned advocate for respondent
- insurance company was not present at the time of final hearing but
on earlier occasion, he has conveyed that the amount awarded by the
Tribunal is just and proper and no interference is required to be
called for by this Court.
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 I have considered the submissions made by the rival parties. I
have perused the record and proceedings of the Tribunal. I have gone
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
through the impugned judgment and award passed by the Tribunal.
6.2 It transpires that the Tribunal has committed error in not
properly awarding under the head of income as well as deduction
while considering the loss of dependency. On re-appreciation on the
aspect of income by keeping in view the decision of the Hon'ble
Apex Court in the case of (i) Sarla Verma & Ors. Vs. Delhi
Transport Corporation & Anr. reported in (2009) 6 SCC 121 (ii)
National Insurance Company Limited versus Pranay Shethi reported
in (2017) 16 SCC 680 and for the purpose of calculating the amount
towards conventional heads by keeping in view the decision of the
Hon'ble Apex Court in the case of (i) Magma General Insurance
Company Limited versus Nanu Ram and others reported in (2018)
18 SCC 130, (ii) New India Assurance Co. Ltd. Vs. Somwati
reported in (2020) 9 SCC 644, I found that the Tribunal has
committed error in calculating the award under various heads, which
is required to be enhanced. On recalculation of the award, it is found
that looking to the evidence on record, there is no reasons to reduce
the income of the deceased, therefore, for the purpose of considering
the dependency benefit if I consider income of the deceased
Rs.2,100/- per month and to the extent of 50% is required to be
added towards prospective rise as the deceased was serving in the
South Zone Corporation India Ltd. and after adding to the extent
50%, the amount would come to Rs.3,150/- per month and by
deducting 50% in Rs.3,150/- as the parents are original claimants, by
keeping in view the decision of the Hon'ble Apex Court in the case
of Pranay Shethi (supra), to the extent 50% is required to be
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
deducted, therefore, it would come to Rs.1,575/- towards personal
expenses, therefore, Rs.1,575 x 12 (months) x 18 (multiplier) vy
considering the age of deceased i.e. 21 years and age of the parents
i.e. opponent No.1 was 41 years at the time of accident, it would
come to Rs.3,40,200/- towards future loss of income. I award
Rs.80,000/- towards filial consortium for two parents and
Rs.15,000/- towards loss of estate and further Rs.15,000/- under the
head of funeral expenses by keeping in view various judgments of
the Hon'ble Apex Court as noted above, and I award accordingly.
Further, the deceased was getting gratuity benefit from his employer
and after considering Rs.5,760/- towards loss of gratuity, total
amount of compensation would come to Rs.4,55,960/, which is
required to be awarded to the claimants - parents.
6.3 Thus, the appellants - claimants are entitled to get the
following final amount as compensation :
Particulars Amounts (Rs.)
Future loss of income 3,40,200/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Loss of consortium 80,000/-
Loss of future gratuity 5,760/-
Total... 4,55,960/-
6.4 Thus, the Tribunal has committed an error in awarding total
compensation of Rs.1,66,000/- under various heads. The appellants -
claimants are entitled to the additional amount of compensation of
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
Rs.2,89,960/- over and above the amount of Rs.1,66,000/- as
awarded by the Tribunal. The opponents, including the insurance
company, are jointly and severally liable to pay the aforesaid
additional amount of Rs.2,89,960/- to the appellants - claimants
together with interest @ 9% per annum from the date of the claim
petition till realization. Rest of the direction(s) if any, shall remain
same.
7. For the reasons recorded above, the following order is passed.
7.1 The present appeal is allowed, to the aforesaid extent.
7.2 The judgment and award dated 15.9.2004 passed by the Motor
Accident Claims Tribunal (Aux.), Vadodara in Motor Accident
Claim Petition No.673 of 1994 shall stand modified to the aforesaid
extent by enhancing the amount of compensation as above.
7.3 The respondent No.3 - insurance company is directed to
deposit the enhanced amount of Rs.2,89,960/- with the interest @
9% per annum 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.
C/FA/2539/2008 JUDGMENT DATED: 24/06/2022
7.5 The Tribunal shall deduct the court fees, in accordance with
law.
7.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
