Meenaben Pravinbhai Maithani vs Nareshkumar Jivanram(Deleted)
2022 Latest Caselaw 4538 Guj

      C/FA/345/2022                                 JUDGMENT DATED: 02/05/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 345 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                       MEENABEN PRAVINBHAI MAITHANI
                                  Versus
                      NARESHKUMAR JIVANRAM(DELETED)
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Appearance:
MS.SHIVANI V TRIVEDI(7225) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1
MR MITESH L RANGRAS(3324) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                            Date : 02/05/2022
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and award dated 6.8.2018 passed by

C/FA/345/2022 JUDGMENT DATED: 02/05/2022

the Motor Accident Claims Tribunal (Aux), Ahmedabad (Rural) in claim petition no.1286/12, the appellants-original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Heard Ms. Shivani Trivedi, learned advocate for the appellants and Mr. Mitesh Rangras, learned advocate for respondent no.3 - insurance Company. As the liability is not denied by the insurance Company and no appeal is preferred by the insurance Company, presence of other respondents is not necessary for deciding the issue of quantum which is raised in this appeal. The learned advocate for the appellants as well as the learned advocate for the insurance Company are heard for final disposal of this appeal and have also perused the original record and proceedings.

3. Following facts emerge from the record of the appeal:-

3.1 That the accident took place on 14.6.2012. It is the case of the appellants-original claimants that on that day, the deceased Pravinbhai was traveling in Indica Car bearing registration no. RJ-18 CA-1842 with other

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colleagues and were going to Dindwana to Sikar. It is the case of the appellants- original claimants that at that time, one vehicle came in front of them and the driver of the car lost control over the car and dashed with the stable trolley bearing registration no. RJ-18 CA-1966, as a result of which, the deceased received grievous injuries and succumbed to the same on the spot. An FIR was lodged with the jurisdictional Police Station and the present claim petition was filed under Section 166 of the Act claiming compensation of Rs.70,00,000/-.

3.2 The wife of the deceased was examined at Exh.22 and the original claimants relied upon plethora of documentary evidence, such as, copy of the FIR Exh.23, copy of the Panchnama Exh.24, copy of charge-sheet Exh.25, postmortem report Exh.26, death certificate of the deceased Exh.27, PAN card of the deceased Exh.28, acknowledgment of income-tax return Exh.29, salary certificate of the deceased issued by Devraj Industries Exh.39, Form-16 issued by Devraj Industries Exh.40, form-16 of the deceased Exhs.41 and 42, school leaving certificate of the deceased Exh.43, B.Com mark-sheet of the deceased Exh.44, service certificate of Magnaprasad Exh.74, SBI passbook of Magnaprasad Exhs.75 to 77. The

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opponents no.1 and 2 have also filed documentary evidence, such as, copy of driving license of Nareshkumar Jivanram Exh.60, RTO registration of vehicle no. RJ-18 CA-1842 and insurance policy of vehicle bearing registration no. RJ-18 CA-1842 Exh.62. Certified copy of the insurance Company of the Car was also brought on record by the insurance Company at Exh.49. The Tribunal, after considering the evidence on record based the determination of the income on Form-16 at Exhs.40 to 42, came to the conclusion that as the deceased was an Area Manager, he would be getting TA DA which is not separately shown in Form-16 and determined the income at Rs.15,000/- per month and after considering 30% prospective income, deducted one-third towards personal expenses and applying multiplier of 16, awarded a sum of Rs.26,88,000/- as compensation under the loss of dependency and also awarded Rs.40,000/- as loss of consortium, Rs.15,000/- as loss of estate and Rs.15,000/- as funeral expenses and thus, while partly allowing the claim petition, awarded a sum of Rs.27,58,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellants-original claimants have preferred this appeal.

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4. Ms. Shivangi Trivedi, learned advocate for the appellants - original claimants contended that the Tribunal has misread the evidence in form of Form-16 at Exhs.40 to 42. It is contended that the deduction from the income which is reflected in Form-16 on the premise that the deceased being Area Manager would not have received TA DA is only presumption and assumption and no evidence to that effect was brought on record. Ms. Trivedi, learned advocate for the appellants therefore contended that the Tribunal ought to have determined the income of the deceased based upon the income which is shown in Form-16 at Exhs.40 to 42. It was contended that the minor child of the deceased as well as mother would also be entitled to parental and filial consortium of Rs.40,000/- each. On the aforesaid grounds, Ms. Trivedi, learned advocate for the appellants contended that the appeal be allowed and the impugned judgment and award be modified.

5. Per contra, Mr. Mitesh Rangras, learned advocate for the respondent no.3 - insurance Company has opposed this appeal. It was contended that the Tribunal has committed no error in appreciating the evidence of income in form of Form-16 at Exhs.40 to 42 and the

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income determined at Rs.15,000/- per month is correct and no modification is warranted. According to Mr. Rangras, considering the date of accident, the other claimants i.e. daughter and mother are not entitled to consortium. Is it therefore contended that the appeal, being meritless deserves to be dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. Upon considering the submissions made, the questions which arise in this appeal are as under:-

[i] Whether the Tribunal has committed any error in determining the income of the deceased or not?

[ii] Whether the other claimants i.e. daughter and mother of the deceased are entitled to any consortium or not?

8. As far as the income is concerned, it is evident from Form-16 at Exh.40, which relates to Assessment Year 2009-10, wherein income reflected is Rs.1,71,000/- and the Form-16 at Exh.41, which relates to Assessment Year 2010-

C/FA/345/2022 JUDGMENT DATED: 02/05/2022

11, the same shows total income of Rs.1,83,600/-. Even as per the Form-16 at Exh.42, which relates to Assessment Year 2011- 12, the same shows total income of Rs.2,33,100/-. If the income is determined based upon mean of total income of last 3 years, the same comes to Rs.16,325/- per month, which can be rounded at Rs.16,500/- per month. As the deceased was 35 years old and was in permanent service, the original claimants would be entitled to increase in income by way of prospective income to the extent of 40% and after deducting one-third towards personal expenses, appropriate multiplier would be that of 16. Hence, the appellants - original claimants would be entitled to compensation under the head of loss of dependency as under:-

Rs.16,500/- Income per month + Rs.6,600/- 40% prospective income = Rs.23,100/- Income per month

- Rs.7,700/- One-third towards personal expenses = Rs.15,400/- Income per month X 12 Yearly = Rs.1,84,800/- Yearly income X 16 Multiplier = Rs.29,56,800/- Compensation towards loss of dependency

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9. Following the ratio laid down by the Hon'ble Apex Court in the cases of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076 and New India Assurance Company Ltd. Vs. Somwati, reported in (2020) 9 SCC 644, the appellant no.2 - minor daughter and appellant no.4 - mother shall be entitled to parental and filial consortium of Rs.40,000/- each. The questions raised in this appeal are answered accordingly. Having come to the aforesaid conclusion, the appellants- original claimants would be entitled to compensation as under:-

Rs.29,56,800/- Loss of dependency + Rs.1,20,000/- Loss of consortium (Rs.40,000/- X 3) + Rs.15,000/- Loss of estate + Rs.15,000/- Funeral expenses = Rs.31,06,800/- Total compensation

10. Thus, the appellants - original claimants would be entitled to total compensation of Rs.31,06,800/-. As the Tribunal has awarded Rs.27,58,000/-, the appellants - original claimants would be entitled to an amount of Rs.3,48,800/- as additional compensation.

C/FA/345/2022 JUDGMENT DATED: 02/05/2022

However, such additional amount shall bear interest at the rate of 6% per annum from the date of filing of the claim petition till its realization. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional/enhanced amount along with the interest at the rate of 6% per annum as provided in this judgment within a period of eight weeks from the date of receipt of this judgment. The appeal is thus partly allowed. However, there shall be no order as to costs in this appeal. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Maulik