Dineshkumar Shankarlal Thakkar vs Chetankumar Hasmukhlal Thakkar
2022 Latest Caselaw 2445 Guj

     C/FA/3596/2013                               JUDGMENT DATED: 04/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3596 of 2013


FOR APPROVAL AND SIGNATURE:


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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            DINESHKUMAR SHANKARLAL THAKKAR & 3 other(s)
                             Versus
            CHETANKUMAR HASMUKHLAL THAKKAR & 2 other(s)
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Appearance:
MR HARSHIT S TOLIA(2708) for the Appellant(s) No. 1,2,3,4
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 04/03/2022

                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 31.08.2013 passed by the Motor Accident Claims Tribunal (Aux.),

C/FA/3596/2013 JUDGMENT DATED: 04/03/2022

Patan at Palanpur in Motor Accident Claim Petition No.339 of 2007, by which the Tribunal has awarded Rs.6,01,200/- with 12% per annum interest to the claimants, by holding Opponents No.1 to 3 i.e. driver, owner and insurance company of the offending vehicle tempo liable, jointly and severally.

2. Brief facts of the case are as under :

2.1 On 12.11.2007, when deceased - Dineshkumar Shankarlal Thakkar was going in his Jeep bearing registration No.GJ-1-BP-0806 from Radhanpur to Sami in moderate speed on the left side of the road, at that time one tempo bearing registration No.GJ-24-U-2849 came in full speed with rash and negligent driving from the wrong side and dashed with the Jeep. As a result, he received serious injuries and ultimately, he has succumbed to the injuries. Therefore, the claimants have filed a claim petition before the Tribunal for getting compensation.

2.2 Notices were served to the opponents i.e. driver, owner and insurance company of the Tempo as well as insurance company of the Jeep. The insurance company of the tempo has filed its written statement at Exh.21 and denied the averments made by the claimants. The insurance company of the Jeep was deleted from the era of the claim petition. The Tribunal has framed the issues at Exh.17/A. The oral as well as documentary evidence have been led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has passed the impugned judgment and award by awarding compensation as noted above.

2.3 Hence, this appeal is by the claimants for enhancement of the compensation before this Court.

C/FA/3596/2013 JUDGMENT DATED: 04/03/2022

3. Learned advocate Mr. Tolia appellants - claimants has submitted that the Tribunal has erred in holding that the income of the deceased can be assessed only at Rs.3,000/- per month, which should be considered Rs.6,000/- per month in view of the decision of Hon'ble Apex Court in the case of Minu Rout and another versus Satya Pradyumna Mohapatra and others reported in 2013(10) SCC 695. He has also submitted that the Tribunal has also erred in assessing the prospective income to the tune of 30% only, which should be 40% in view of the decision of Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 and loss of consortium should be considered as per decision of Hon'ble Apex Court in the case of New India Assurance Company Limited versus Somwati and others reported in (2020) 9 SCC 644. He has further submitted that the Tribunal has erred in deducting 1/4th amount towards personal expenses of deceased, which should be 1/5th looking to the members of his family. He has also submitted that the Tribunal has erred in assessing the contributory negligence to the extent 20% on the part of the deceased. He has submitted that multiplier should be 16 instead of 15. He has lastly submitted that the Tribunal has not awarded damage caused to the Jeep as Panchnama also indicates the same. He has submitted that this appeal may be allowed by enhancing the amount.

4. Per contra, learned advocate Mr. Vibhuti Nanavati for the insurance company has submitted that the Tribunal has rightly awarded compensation to the claimants. He has submitted that the Tribunal has properly considered the income and prospective income of the deceased. He has submitted that the Tribunal has properly appreciated the fact and decided the apportionment of the tempo

C/FA/3596/2013 JUDGMENT DATED: 04/03/2022

driver to the extent 80% and the deceased to the extent 20%. He has has submitted that the claimants can be entitled to get the total compensation of Rs.7,57,000/-. He has submitted that interference is required in the impugned judgment to that limited extent only.

5. I have heard learned advocates for the rival parties. I have perused the record and proceedings of the case. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings by the parties. I found that considering the facts and circumstance of the case, the Tribunal has rightly decided the negligence of the tempo driver to the extent 80% and negligence of the Jeep driver - deceased to the extent 20%. Further, the Tribunal has rightly not considered the damage caused to the Jeep as the said contention has not been proved by the claimants before the Tribunal. In absence of any evidence like repairing bills, etc. to prove the damage caused to the Jeep except panchnama, no amount can be awarded for damage to the Jeep. The Tribunal has assessed the income of deceased as Rs.3,000/- per month as driver, the Hon'ble Apex Court has considered Rs.6,000/- per month income in the case of driver of the jeep in the decision of Minu Rout (supra). Here in the present case, the accident has occurred in the year 2007, the deceased was the owner of the jeep and therefore, his income should be considered as Rs.6,000/- per month in place of Rs.3,000/- per month by the Tribunal. The prospective income should also be added to the extent 40%. The amount for future loss of income would come to Rs.1,00,800/- by deducting 1/4th which comes to Rs.75,600/- and by applying 15 multiplier, it comes to Rs.11,34,000/- and also by awarding Rs.1,60,000/- towards spousal and parental consortium to three children and also Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses in view of the decision of Hon'ble Apex Court in the case of United

C/FA/3596/2013 JUDGMENT DATED: 04/03/2022

India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. Accordingly, now following amount is considered for the compensation :

Future loss of income                                             11,34,000/-
Loss of Parental        and   Spousal                               1,60,000/-
Consortium
Loss of Estate                                                         15,000/-
Funeral Expenses                                                       15,000/-
                              Total....                             13,24,000/-

Out of the above total amount Rs.13,24,000/-, contributory negligence of 20% - Rs.2,64,800/- is deducted. Thus, Rs.10,59,000/- is now the final amount of award to the claimants. The Tribunal has already awarded Rs.7,51,500/-, hence, in the present appeal, there is enhancement of Rs.3,07,500/- with 12% p.a. interest to be paid to the claimants by the original opponents No.1 to 3, jointly and severally, which would meet the ends of justice.

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

6.1 The present appeal is partly allowed. No order as to costs.

6.2 The impugned judgment and award passed by the Tribunal is hereby modified to the extent, the claimants are entitled to get the total compensation of Rs.10,59,200/- with 12% p.a. interest from the original opponents No.1 to 3, since the Tribunal has held them liable.

6.3 Since the amount of Rs.7,51,500/- with 12% p.a. interest is already awarded by the Tribunal, it is directed that the respondents - original opponents No.1 to 3 shall pay the enhanced amount of Rs.3,07,700/- with 12% p.a. interest, from the date of claim petition,

C/FA/3596/2013 JUDGMENT DATED: 04/03/2022

before the concerned Tribunal, within a period of six weeks from today.

6.4 On depositing the enhanced amount, the Tribunal shall pay the awarded amount with accrued interest, to the claimants, by account payee cheque, after due verification and after following due procedure.

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

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