Gujarat High Court
Geb (Gujarat Urja Vikas Nigam ... vs Heirs Of Decd.Rupiben Chanabhai ... on 12 October, 2022
Bench: A.S. Supehia
C/FA/889/2002 ORDER DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 889 of 2002
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GEB (GUJARAT URJA VIKAS NIGAM LTD.)
Versus
HEIRS OF DECD.RUPIBEN CHANABHAI KODPATAR
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 12/10/2022
ORAL ORDER
1. The present First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 against the judgment and order
dated 29.09.2001 passed by learned Civil Judge (S.D.), Rajkot at
Dhoraji in Special Civil Suit No.208 of 2001, awarding
compenstion of Rs.2,67,500/- along with 12% interest p.a. to the
claimants.
2. Learned advocate Mr.S.D.Motwani for learned advocate
Mr.Dipak Dave for the appellant has submitted that the Court
below has fallen in error in determining the amount of the
deceased at Rs.1,800/- i.e. Rs.60 per month, in absence of any
evidence produced by the claimants before the Court below. He
has submitted that neither the documentary evidence nor oral
evidence will suggest that the deceased was earning an amount
of Rs.60/- per day and hence, the amount of compensation,
which is calculated on such fixation of the income, is required to
be set aside. It is submitted that in absence of any proof of
income, the claimant(s) would be entitled to the minimum wages,
as prescribed by the State Government. He has submitted that,
at the relevant time, between 01.10.1997 to 31.03.1998, the
State Government had fixed the minimum wages at Rs.1,600/-
C/FA/889/2002 ORDER DATED: 12/10/2022
and hence, the impugned judgment is required to be quashed
and set aside. Further, it is submitted that the rate of 12%
interest p.a. is also exorbitant. It is also submitted that the
husband of the deceased would also not be entitled to the
compensation and the compensation cannot be held as a
dependent. Thus, he has submitted that the impugned order
may be modified to the aforesaid extent.
3. Per contra, learned advocate Ms.Nasrin Shaikh for
Mr.Pankaj Desai, learned advocate for the original claimant(s)
has submitted that the impugned order does not require any
interference and the same may not be disturbed after so many
years, as the claimant(s) would be put to difficulty.
4. I have heard the learned advocates for the respective
parties.
5. The prime issue, which requires to be considered in
present appeal is with regard to fixation of income of the
deceased-Rupiben Chanabhai Kodipatar at Rs.1,800/- by the
Court below. Such income is fixed by calculating her daily
income at Rs.60/-. This Court has perused the impugned order
as well as evidence on record. The evidence reveals that the
deceased was doing the work of collecting grass fodder, selling
milk etc. The deposition of PW-1, Chhanabhai, which is below
Exh.24, is perused by this Court. In the cross-examination, it is
elicited that his wife was doing the aforesaid work and he is not
having any proof with regard to having such income. It is
specifically stated by him that he has no written document to
prove her income. The Court below has answered the Issue No.3
framed below Exh.13 and has determined the income as Rs.60/-
C/FA/889/2002 ORDER DATED: 12/10/2022
per day. The said issues are reproduced hereinbelow:
"Following issues have been framed by my learned Predecessor vide
Exh.13 :-
1. Whether the plaintiffs prove that on 03/01/1998, deceased
was collecting the grass fodder and at that time live electric
wire was separated from the pole and fell on Rupiben in the
sim of Dhoraji and she electrocuted?
2. Whether the plaintiffs prove that due to negligence and
carelessness of the defendants, deceased Rupiben died on
03.01.1998 ?
3. Whether the plaintiffs prove that deceased Rupiben was
earning Rs.120/- per day ?
4. Whether the defendants prove that the said accident was an
Act of God and they are not negligent and responsible for the
said accident ?
5. Whether the plaintiffs are entitled to get Rs.5,00,000/-
towards compensation ?
6. Whether the plaintiffs are entitled to get interest on suit
amount, if yes, at what rate ?
7. What order and decree? "
6. The Trial Court has thus, determined an amount of
Rs.60/- as a daily income of deceased-Rupiben and accordingly,
has calculated the compensation of Rs.2,67,500/-. The yearly
income has been assessed at Rs.17,676/- as per the share of 11
units of deceased - Rupiben and after applying the multiplier of
14, the said compensation is determined. It is also asserted that,
at the time of death, she was aged about 45 years. This Court is
of the considered opinion that the Trial Court has fallen in error
in determining the daily income of deceased - Rupiben as
Rs.60/- without there being any oral or documentary evidence. It
is well settled proposition of law that in absence of any proof of
income, the income of the deceased-employee is required to be
C/FA/889/2002 ORDER DATED: 12/10/2022
calculated as per the minimum wages prescribed by the State
Government. It is not in dispute that from 01.10.1997 to
31.03.1998, the State Government had prescribed Rs.1,600/- as
income including D.A. The present incident, which has claimed
the life of Rupiben occurred on 03.01.1998 and her case would
be governed as per the income prescribed by the State
Government under the Minimum Wages Act. Accordingly,
instead of Rs.1,800/-, the amount, which is fixed by the Court
below, the same is required to be altered to Rs.1,600/-.
7. With regard to award of interest @ 12% is concerned, this
Court is of the considered opinion that the same is appropriately
awarded to the claimants, as the incident is of 1998. The issues,
as reflected hereinabove, would suggest that the appellant has
not taken any objection at the time of framing of issues and has
not raised anything with regard to the husband not being
dependent on deceased - Rupiben and hence, the contention
raised before this Court with regard to awarding of interest @
12% is required to be rejected.
8. In light of above observations, the compensation is
required to be altered accordingly and hence, the amount of
compensation is determined as below:
Rs.1600-Rs.290 = Rs.1310/-
x 12
__________
Rs.15,720/- Yearly Income
x 14 Multiplier
____________
Rs.2,20,080/-
C/FA/889/2002 ORDER DATED: 12/10/2022
The impugned judgment and award is modified to the
extent that the claimants will be entitled to an amount of
Rs.2,20,080=00 instead of Rs.2,67,500=00.
9. Thus, the claimants would be entitled to the aforesaid
amount with 12% interest from the date of filing of the suit.
During the pendency of the appeal, it is reported that the
claimants had already withdrawn 50% of the amount, which is
deposited before the Trial Court. In view of the ad-interim relief
granted by this Court in Civil Application No.3390 of 2002, vide
order dated 25.06.2002, the Trial Court was directed to disburse
the remaining amount as per the calculation determined by this
Court. The rest of the amount shall be disbursed to the
appellant.
10. The present appeal is partly allowed. Record and
Proceedings to be sent back.
(A. S. SUPEHIA, J)
GIRISH
