Dineshbhai Nurabhai Kotvaliya vs Sureshbhai Bhagwanbha Dhagad
2022 Latest Caselaw 8366 Guj

     C/FA/745/2008                                JUDGMENT DATED: 23/09/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 745 of 2008


FOR APPROVAL AND SIGNATURE:                                           Sd/-


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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             DINESHBHAI NURABHAI KOTVALIYA & 2 other(s)
                             Versus
            SURESHBHAI BHAGWANBHA DHAGAD & 1 other(s)
=============================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 23/09/2022

                              ORAL JUDGMENT

1. This Appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) is filed by the original claimants as appellants, challenging the judgment and award dated 02.05.2006, passed by the Motor Accident Claims Tribunal

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

(Auxi.) Vyara, Surat in Motor Accident Claims Petition No.1034 of 2000, whereby the Tribunal has partly allowed the claim petition and awarded compensation of Rs.2,14,000/- with 7.5% interest p.a. from the date of filing of claim petition till its realization with proportionate cost.

2. The facts in brief are:

2.1 On 24.09.2000, at around 03:00 p.m. Mugaliben Dineshbhai Kotvaiya (hereinafter referred to as "the deceased") was to go to Moti Khervan from her village, so she stepped into the bus No.GJ-18-V-561. When she was stepping into the bus, the driver of bus started driving the bus, in negligent manner ignoring that the passenger had yet not entered the bus and the door was not closed. This had resulted into an accident. Mogaliben thrown out of bus and fell down from the bus. The rear wheel of bus step over her, resulted into grievous injuries. For the said accident, she was taken to the hospital, where she died. The FIR was lodged against driver of the bus, being Cr.No.39 of 2000. For the said accident, the original claimants filed claim petition seeking compensation of Rs.4,00,000/-. It was case of the original claimants that the deceased was doing skill work by knitting bamboo baskets and other bamboo products and thereby she was earning Rs.3,000/- p.m. It was case of the original claimants that the deceased was 28 years of age and was healthy at the time of accident and along with skilled labour work she was also doing many household works.

2.2 Upon claim petition being filed, notices were issued. The respondent appeared and filed written statement. The

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

Tribunal, after hearing the parties and upon consideration of evidence on record, decided the issues as under:

(i) In relation to negligence, the Tribunal held the driver of bus as sole negligent for occurrence of the accident.

(ii) For compensation, the Tribunal awarded total compensation of Rs.2,14,000/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization with proportionate cost.

2.3 Aggrieved by the quantum of compensation awarded, present Appeal is filed by the original claimants seeking enhancement.

3. Heard Mr. Hiren M. Modi, learned advocate for the appellants - original claimants, and Mrs. Vasavdatta Bhatt, learned advocate for respondent No.2-Gujarat State Road Transport Corporation ("GSRTC"). As liability has not been denied, presence of respondent No.1 (driver of the offending bus) is dispensed with. Record and Proceedings have been secured from the Tribunal and placed before the Court for the perusal.

4. Appearing for the appellants-original claimants, Mr. Hiren M. Modi, learned advocate, submitted that the Tribunal is in error in assessing the income of the deceased at Rs.1,500/- p.m. He further submitted that, the Tribunal ignored that the deceased was skilled labourer and was also doing other activities to help her family, and therefore, the Tribunal ought

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

to have considered Rs.3,000/- p.m. to assess the future dependency loss. For the nature of work the deceased was doing, it was difficult to produce any income proof, and therefore, Tribunal is in error in considering notional income of Rs.1,500/- p.m. Referring to Exh.24, he submitted that in the deposition, the husband of deceased had stated that the deceased was doing skilled labour work by knitting bamboo baskets, bamboo mats and other bamboo items from her young age and this way, she was helping family by earning Rs.3,000/- p.m. He relied upon the decision of this Court in the case of New India Assurance Co. Ltd. vs Babubhai Dipubhai Chauhan and Others. reported in 2006 (2) GLR 1514 and submitted that in the case of Babubhai (supra), the income of a housewife running Gruh Udhyog was considered Rs.3,000/- p.m. Relying upon the decisions of Hon'ble Supreme Court in the case of Pappu Deo Yadav Vs Naresh Kumar reported in AIR 2020 SC 4424 and National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680, he submitted that the Tribunal is in error in not awarding future prospective income. Considering the age of deceased, multiplier of 17 ought to have been applied by the Tribunal instead of 16.

4.1 He further submitted that in view of decision of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram reported in 2018 (18) SCC 130, the compensation, towards consortium also requires enhancement. He, thus, submitted to allow his appeal and enhance the compensation accordingly.

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

5. On the other hand, Mrs. Vasavdatta Bhatt learned advocate, appearing for the GSRTC, submitted that the Tribunal has assessed the income of the deceased at Rs.1,500/- p.m. as no income proof was on record. She further submitted that the minimum wages applicable in the year of accident was Rs.1,900/- p.m. and, therefore, the Tribunal has rightly assessed the income of the deceased at Rs.1,500/-. Relying upon the findings recorded by the Tribunal, she submitted that same is based on proper appreciation of evidence and does not call for any interference. She, thus, submitted to dismiss the appeal.

6. Having heard learned advocates for the respective parties and upon re-appreciation of evidence on record, it is noticed that the deceased died at the young age of 28. In the deposition of her husband at Exh.24, he had stated that her wife was knowing the knitting work from bamboo and was preparing various items from bamboo sticks and thereby doing skilled labour work and earning Rs.3,000/- p.m. It is also noticed that during cross-examination by the respondent No.2 (GSRTC), nothing contrary came on record. However, it is not in dispute that, income proof in relation to activities carried out by the deceased at the relevant time could not be produced. However, in my opinion, the kind of work, the deceased doing, it is difficult for anyone to produce income proof, therefore, considering that she was doing skilled labour work and thereby helping her family in their livelihood, in my opinion, Rs.2,100/- would be appropriate as the same was minimum wage at the relevant time as per the Minimum Wages Act, 1948, for the

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

skilled labourer. As the deceased was 28 years of age at the time of accident, in view of decision of Hon'ble Supreme Court in the case of Pappu Yadav (supra) and Pranay Sethi (supra), she would be entitled for 40% rise towards future prospective income. 1/3 would be deducted towards personal expenses and considering her age, multiplier of 17 would be applicable.

7. In view of above, the dependency loss of the deceased is assessed as under:

"Rs.2,100/- per month (income) + 40% prospective income = Rs.2,940 - 980/- (1/3 towards personal expenses) = Rs.1,960/- X 12 (p.a.) = Rs.23,520/- X 17 Multiplier (as the age of the deceased was 28 years) = Rs.3,99,840/-."

7.1 Further, in view of decisions of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. (supra) and United India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, as the deceased was survived by three dependents, the claimants would be entitled to Rs.40,000/- each (Rs.40,000/- X 3 = Rs.1,20,000/-) (spousal and filial) towards loss of consortium. In view of decisions of Hon'ble Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211 and Pranay Sethi (Supra), Rs.15,000/- each would be appropriate towards loss of estate and funeral expenses.

8. Therefore, the claimants are entitled for the total compensation as under:

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

Particulars Amount (Rs.) Dependency Loss 3,99,840/-

Loss of consortium 1,20,000/-

(for three dependents Rs.40,000/- each) Loss of Estate 15,000/-

     Funeral Expenses                                             15,000/-
                                                 Total       5,49,840/-

Thus, the claimants are entitled for the total compensation of Rs. 5,49,840/-.

9. For the reasons aforestated, following order is passed.

ORDER

(i) Appeal of the original claimants is partly allowed.

(ii) The appellants - original claimants would be entitled to total compensation of Rs.5,49,840/-. As the Tribunal has awarded an amount of Rs.2,14,000/-, the respondent - Gujarat State Road Transport Corporation shall deposit the balance amount of compensation of Rs.3,35,840/- (Rs. 5,49,840 - Rs.2,14,000) 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 eight weeks from the receipt of the order.

(iii) The rest of the judgment and award passed by the learned Tribunal has remained unaltered.

C/FA/745/2008 JUDGMENT DATED: 23/09/2022

(iv) Deficit Court Fees, if any, is to be paid by the appellants within a period of four weeks, failing which amount is recovered by the Insurance Company from the enhanced amount.

(v) 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/-

(MAUNA M. BHATT,J) T. J. Bharwad