Gujarat High Court
Legal Heirs Of Deceased ... vs Jagdish Raysinh Balival ... on 10 October, 2022
Bench: A.J.Desai
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.3760 of 2010
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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LEGAL HEIRS OF DECEASED MADHUSINH, VANITA KUNVAR WD/O MADHU
& 4 others
Versus
JAGDISH RAYSINH BALIVAL (DELETED) & 2 others
=========================================
Appearance :
MR JA ADESHRA for the Appellants.
DELETED for the Defendant No.1.
MR AS ASTHAVADI for the Defendant No.2.
MR GIRISH B THAKER for the Defendant No.2
MR VC THOMAS for the Defendant No.3.
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C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 10/10/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. By way of the present appeal under Section 173 of the
Motor Vehicles Act, 1988 ('the Act' for short), the appellants -
original claimants have challenged the judgment and award dated
7.1.2010 passed by learned Motor Accident Claims Tribunal
(Auxiliary), Court No.14, Ahmedabad in MACP No.319 of 2006 only
to the extent of amount of compensation awarded by the Tribunal.
2. The appeal came to be admitted by order dated
29.12.2010. Registry has received the Records and Proceedings
from the Tribunal and has placed the same before this Court for
perusal.
3. The short facts arise from the record are as under :-
3.1 That on 13.4.2006, one Madhusinh Gambhirsinh Sisodia
was going on his Motorcycle bearing Registration No.GJ-1-DP-5380
at about 12.30 hours and when he reached opposite to Mangal Jyot
Flat situated on Jodhpur village road, Ahmedabad, one Tempo
bearing Registration No.GJ-1-AU-3338 insured with the respondent
No.3 Insurance Company - The Oriental Insurance Company
Limited, came with full speed and in rash and negligent manner
and dashed with the motorcycle of Madhusinh Sisodia which was
being driven by himself, pursuant to which he fell down and
sustained serious injuries and hence, he was immediately shifted to
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
SAL Hospital of the city of Ahmedabad where he succumbed to the
injuries.
3.2 The legal heirs of deceased i.e. appellants herein filed
claim petition before the Tribunal seeking compensation. It was
the case of the claimants that the deceased was working as a
General Manager in Curries Restaurant and was earning
Rs.15,500/- per month and in all claimed Rs.36 Lacs as
compensation. The said claim petition was opposed by the
Insurance Company. After considering various documentary as
well as oral evidence, the Tribunal held the deceased negligent to
the extent of 20% whereas the driver of the Tempo was held
negligent to the extent of 80%. The Tribunal assessed the income
of the deceased at Rs.12,000/- per month and after deducting 1/3rd
towards personal expenses, the income of Rs.8,000/- per month
was considered by the Tribunal and hence, for the loss of
dependency benefit, an amount of Rs.96,000/- p.a. was considered
and multiplier of 10 was considered. Further, Rs.20,000/- towards
loss of expectancy of life, Rs.15,000/- towards consortium and
Rs.5,000/- for funeral charges and hence, out of the total amount of
compensation of Rs.10 Lacs, after deducting the liability of the
deceased at 20%, the Tribunal awarded an amount of Rs.8 Lacs as
compensation with running interest @ 7.5% from the date of claim
petition till realization.
3.3 Being aggrieved only with the amount of compensation,
the appellants have preferred the present appeal.
4. Mr. J. A. Adeshra, learned advocate appearing for the
appellants would submit that the main challenge of the appellants
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
in the present appeal is against the amount of compensation
awarded by the Tribunal and the appellants do not intend to
challenge the negligence of deceased to the extent of 20%. He
would further submit that since the deceased was survived by wife,
three minor children and a mother, the Tribunal has committed an
error in deducting 1/3rd amount towards personal expenses. He
would further submit that the Tribunal ought to have deducted
1/4th towards personal expenses of the deceased and accordingly,
the amount is required to be calculated towards future loss of
dependency. He would further submit that as per the decision of
the Hon'ble Supreme Court in the case of National Insurance Co.
Ltd. vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680,
the Tribunal has committed error in adopting multiplier of 10 and
as per the above referred decision, the Tribunal ought to have
adopted multiplier of 13. He would further submit that the
Tribunal has committed error in awarding Rs.15,000 towards
consortium, Rs.20,000 towards loss of estate and Rs.5,000 towards
funeral expenses and considering the above referred decision of
the Hon'ble Supreme Court, the amount of compensation may
accordingly be modified under the said heads. He, therefore,
would submit that the appeal may be allowed accordingly.
5. On the other hand, Mr. V. C. Thomas, learned advocate
appearing for respondent No.3 - The Oriental Insurance Company
Limited with whom Tempo having registration No.GJ-1-AU-3338
was insured, would submit that the Tribunal has committed an
error in not deducting the tax which the deceased was supposed to
pay from his annual income. He would further submit that
considering the fact that income of the deceased was Rs.1,44,000/-
for the Assessment year 2006-07, as per the tax slab applicable in
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
the Assessment Year 2006 - 07, 10% of tax ought to have been
deducted by the Tribunal above income of Rs.1,00,000/-. He,
therefore, would submit that considering the said aspect, amount of
compensation may be considered accordingly.
6. We have heard learned advocates appearing for the
respective parties and perused the judgment and award passed by
the Tribunal as well as gone through the records and proceedings
produced before us. As per the case of the claimants, the deceased
was working as General Manager in Curries restaurant and was
earning Rs.15,500/- per month. A Certificate to that effect is
produced on record at Exh.58. Hence, in our opinion, the Tribunal
has rightly assessed the income of the deceased at Rs.12,000 per
month. Hence, the annual income of the deceased is assessed at
Rs.1,44,000/- p.a. For the Assessment year 2006 - 07, if a person is
having income above Rs.1 Lac and upto 1.50 Lacs p.a., he is
required to pay 10% tax on the said income as per the income tax
slab at that time. Accordingly, Rs.4,400/- (10% on 44,000/-) is
required to be deducted towards tax from the annual income of the
deceased. Hence, the annual income of the deceased can be
assessed at Rs.1,44,000 - 4400 = Rs.1,39,600/-. Since the deceased
was survived by wife, mother and three minor children, in our
opinion, 1/4th towards personal expenses is required to be
deducted and since the deceased was aged about 49 years at the
time of accident, as per the decision of the Hon'ble Supreme Court
in the case of National Insurance Co. Ltd. vs. Pranay Sethi and
Ors. (Supra), multiplier of 13 is required to be applied.
Thus the future loss of income would be as under :-
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
Rs.12,000 per month x 12 - Rs.1,44,000 - 4,400 towards Income Tax
= Rs.1,39,600 - Rs.34,900 (1/4th towards personal expenses) =
Rs.1,04,700 per annum x 13 (multiplier as the deceased was aged
49 years at the time of accident) = Rs.13,61,100/-.
7. Further, in view of the decision of Magma General
Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram
and Ors. (2018) 18 SCC 130 and Satinder Kaur alias
Satwinder Kaur v. United India Insurance Co. Ltd. [AIR 2020
SC 3076], each claimant would be entitled for Rs.40,000/- towards
consortium and as the deceased was survived by five heirs - widow,
mother and three minor children, the claimants would be entitled
for an amount of Rs.40,000/- to each of the claimants i.e. in all
Rs.2,00,000/- towards consortium. Further, in view of the above
referred decisions of the Hon'ble Apex Court, the claimants would
be entitled for Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses and in our opinion the same would be
appropriate. Hence, the claimants would be entitled for total
compensation as under :-
Future loss of income Rs.13,61,100/-
Parental consortium & Loss of Rs.2,00,000/-
consortium (Rs.40,000 to each
claimant)
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.15,91,000/-
Deducting 20% liability of the (-) Rs.3,18,200
deceased
Total Rs.12,72,800/-
8. Thus, the appellants - claimants would be entitled to
C/FA/3760/2010 JUDGMENT DATED: 10/10/2022
total compensation of Rs.12,72,800/-. As the Tribunal has awarded
an amount of Rs.8,00,000/-, the respondent No.3 - The Oriental
Insurance Company Limited shall deposit the balance additional
amount of compensation of Rs.4,72,800/- (Rs.12,72,800 -
Rs.8,00,000) with 6% interest p.a. and proportionate costs from the
date of filing of the claim petition till its realization with the
Tribunal within a period of 8 weeks from the receipt of the order.
The impugned judgment and award dated 9.1.2010 passed by
learned Motor Accident Claims Tribunal (Auxiliary), Court No.14,
Ahmedabad is modified to the above extent.
9. The appeal stands partly allowed to the above extent.
The rest of the judgment and award passed by the learned Tribunal
has remained unaltered.
10. Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith.
However, there shall be no order as to costs.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT,J)
SAVARIYA
