Gujarat High Court
Sulbhaben Wd/O Pravinbhai ... vs Dharmendrabhai Chandubhai Patel on 15 September, 2022
Bench: A.J.Desai
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.2059 of 2011
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
=========================================
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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SULBHABEN WD/O PRAVINBHAI BHILABHAI ENDINE & 3 others
Versus
DHARMENDRABHAI CHANDUBHAI PATEL & 1 others
=========================================
Appearance :
MR MTM HAKIM for the Appellants.
DECEASED LITIGANT for the Defendant No.1.
MR MAULIK J SHELAT for the Defendant No.2.
RULE SERVED for the Defendant Nos.1.1,1.2,1.3
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C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 15/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. The original claimants as appellants have filed this
appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act'
for short) challenging the judgment and award dated 5.11.2009
passed by learned Motor Accident Claims Tribunal (Main), Bharuch
in Motor Accident Claim Petition No.371 of 2003 seeking
enhancement of compensation. The Tribunal vide order dated
5.11.2009 awarded total compensation of Rs.5,17,500/- with 9%
interest p.a. from the date of filing of claim petition till realization.
2. The brief facts are as under :-
2.1 That on 21.5.2003, Pravin Bhilabhai Endine
(hereinafter referred to as 'the deceased') was coming from
Dediapada to Ankleshwar by driving his Suzuki Motor Cycle
bearing Registration No.GJ-16-L-2590. At that time, driver of
Splendor Motorcycle bearing Registration No.GJ-16-Q-237 came in
full speed in rash and negligent manner and dashed with the
Motorcycle of the deceased. Out of the said accident, the deceased
sustained serious injuries and died on the spot.
2.2 It was case of the original claimants - legal heirs of the
deceased that the accident occurred on account of sole negligence
on the part of the driver of the Splendor Motorcycle. For the said
accident, the claimants filed Motor Accident Claim Petition under
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
Section 166 of the Act seeking compensation of Rs.40 Lacs.
2.3 Upon claim petition being filed, notices were issued and
served to the opponents who have filed their respective written
statements and denied their liability.
2.4 The Tribunal after hearing the parties and upon
appreciation of evidence produced before it, decided the issue as
under :-
(i) In relation to negligence, the Tribunal held the
deceased as well as driver of Splendor Motorcycle equally
negligent i.e. 50% - 50%.
(ii) In relation to compensation, the Tribunal awarded
compensation of Rs.10,35,000/- and after reducing the 50% liability
of the deceased, had awarded compensation of Rs.5,17,500/- to the
original claimants with 9% interest from the date of filing of the
petition till realization with proportionate costs.
2.5 Aggrieved by the compensation awarded, the
appellants have preferred the present appeal seeking
enhancement.
3. We have heard Mr. Adnan Khan, learned advocate
appearing for Mr. MTM Hakim for the appellants and Mr. Maulik J.
Shelat, learned advocate appearing for United India Insurance
Company of Splendor Motorcycle. As the liability has not been
denied, presence of other respondents is not necessary and hence,
dispensed with. Records and Proceedings have been secured from
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
the learned Tribunal and the same is placed before this Court for
perusal.
4. The facts relating to the occurrence of the accident
being not in dispute, the same are not repeated herein.
5. Mr. Adnan Khan, learned advocate appearing for the
appellants submitted that the Tribunal is in error in assessing the
income of the deceased at Rs.5,500/- per month. He further
submitted that it is not in dispute that the deceased was working as
Helper with Gujarat Insecticides Limited, Ankleshwar. In support
of the claim in relation to income of the deceased, the claimants
had produced the salary statement of the deceased for the year
2002 - 03 at Exh.60. He submitted that the deceased was drawing
salary of Rs.97,973/- p.a. and, therefore, the Tribunal is in error in
deducting benefits included in the salary like Provident Fund, LIC,
Society deposit and Society loan. He further submitted that the
Tribunal is in error in calculating the amount towards loss of
dependency benefit. He further submitted that as on the other
heads like funeral expenses and loss of consortium, the Tribunal is
in error in awarding only Rs.5,000/- and Rs.15,000/- respectively
and in view of the decision of Hon'ble Apex Court in the case 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], the Tribunal ought to have awarded Rs.40,000/- towards
consortium to each of the claimants and Rs.15,000/- towards the
the funeral expenses. He thus contended to allow the appeal.
6. On the other hand, Mr. Maulik J. Shelat, learned
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
advocate appearing for the Insurance Company of Splendor
Motorcycle has opposed the appeal and submitted that the Tribunal
has assessed the income of the deceased based on the evidence on
record and, therefore, no interference is called for. He submitted
to dismiss the appeal.
7. We have heard learned advocates appearing for the
parties and perused the record and proceedings. We have noticed
from the salary statement of the deceased for the year 2002 - 03
produced at Exh.60 that total salary of the deceased was
Rs.97,973/- p.a. From the said statement, it can safely be said that
to arrive at net income of the deceased, only amount of
professional tax i.e. Rs.480/- is required to be deducted and other
benefits like Provident Fund, LIC, Interest on old NSC is not
required to be deducted and hence, we are of the opinion that the
Tribunal is in error in deducting the said amount from the salary of
the deceased. Hence, after deducting the amount of Professional
Tax, the net salary of the deceased comes to Rs.97500/- (rounded
off) p.a. Therefore, we accept the annual income of the deceased at
the relevant time to be of Rs.97,500/- p.a. As the deceased was
aged 37 years at the time of accident, as per the decision of
Hon'ble Apex Court in the case of National Insurance Co. Ltd.
vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680, he
would be entitled to 50% towards future prospective income.
Following the ratio laid down by the Hon'ble Apex Court in the
above referred decision, 50% of the future prospective income is
required to be added and 1/3rd towards personal expenses of the
deceased is required to be deducted. Thus, the future loss of
income would be as under :-
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
"Rs.97,500/- p.a. + Rs.48,750/- (50% future prospective income) =
Rs.1,46,250/- - Rs.48,750 (1⁄3rd deduction towards personal
expenses) = Rs.97,500/- p.a. x 15 (multiplier as the age of the
deceased was 37 years) = Rs.14,62,500/-".
Thus, the appellants are entitled to get an amount of
Rs.14,62,500/- towards future loss of income.
8. Further, in view of the decision of Hon'ble Apex Court
in the case 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 of the legal heirs
of the deceased would be entitled for Rs.40,000/- towards
consortium. In our opinion, the claimants are entitled for
Rs.15,000/- towards the loss of estate and Rs.15,000/- towards the
funeral expenses. Thus, the entitlement of the appellants is as
under :-
Future loss of income Rs.14,62,500/-
Loss of consortium Rs.01,20,000/- (40,000 X 3 claimants)
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.16,12,500/-
9. Thus, the appellants - claimants would be entitled to
total compensation of Rs.16,12,500/-. However, considering the
fact that deceased was also held 50% negligent for the accident
C/FA/2059/2011 JUDGMENT DATED: 15/09/2022
and the liability being not disputed by the claimants, the said
amount is required to be deducted and hence, the appellants would
be entitled to total compensation of Rs.8,06,250/-. As the Tribunal
has awarded an amount of Rs.5,17,500/-, the respondent Insurance
Company shall deposit the balance additional amount of
compensation of Rs.2,88,750/- (Rs.16,12,500 - Rs.5,17,500) 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 present order. It is
expected that the Insurance Company shall deposit the amount of
enhanced compensation within the period granted by this Court.
10. Appeal is thus partly allowed. The rest of the judgment
and award passed by the learned Tribunal has remained unaltered.
However, there shall be no order as to costs. Registry is directed to
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT,J)
SAVARIYA
