Gujarat High Court
Kamlaba Savaisinh Sodha vs Bhanwarbhai Jagannath Joshi on 30 September, 2022
Bench: Mauna M. Bhatt
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 329 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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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KAMLABA SAVAISINH SODHA & 5 other(s)
Versus
BHANWARBHAI JAGANNATH JOSHI & 1 other(s)
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1,2,3,4,5,6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/09/2022
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 ("the Act" for short) is filed by the original claimants challenging
the judgement and award dated 09/05/2007, passed by the Motor
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
Accident Claims Tribunal, (Main), Patan in Motor Accident Claims
Petition No.5640 of 2002, wherein claim petition filed by the original
claimants came to be allowed in part and compensation of Rs.3,62,000/-
was awarded with running interest at the rate of 7.5 % per annum from
the date of filing of the claim petition till its realization. In relation to
negligence, tribunal has held driver of truck No.RJ-27-G-2283 as sole
negligent for occurrence of the accident.
2. Short facts, arising from the record, are as under:
2.1. On 11/09/1998, Sodha Savaisinh Chamansinh was standing
on kachha road of Highway, near Sabdalpura Taluka: Radhanpur,
District: Patan, where he was working as security guard. At that time,
truck bearing registration No.RJ-27-G-2283 came in rash and negligent
manner from Radhanpur side and dashed with Savaisinh (hereinafter
referred to as "the deceased"), for which he sustained grievous injuries
and died on the spot. For the said accident, a FIR - Exh.27 was lodged
and panchnama - Exh.28 was drawn. The legal heirs of the deceased filed
claim petition under section 166 of the Motor Vehicles Act, seeking
compensation of Rs.5,00,000/-. It was case of the original claimants that
accident occurred due to sole negligence of driver of truck No.RJ-27-G-
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
2283, The deceased was working as security guard at Santalpur Clay Pvt.
Ltd. at Village: Santalpur and was earning monthly salary of Rs.3,000/-.
Upon filing of the claim petition, Notices were issues
respondent appeared and filed its written statement. Tribunal after hearing
the parties and upon appreciation of oral and documentary evidence on
record, decided the issue of negligence in favour of the original claimants
by holding driver of the truck, sole negligent for the accident. The
Tribunal awarded total compensation of Rs.3,62,000/- under different
heads, as under:
Loss of future income Rs.3,12,000/-
Loss of spousal consortium Rs. 20,000/-
Loss of parental consortium Rs. 25,000/-
Funeral expenses Rs. 3,000/-
Loss of Estate Rs. 2,000/-
Total compensation Rs.3,62,000 /-
3. Aggrieved by the amount of compensation awarded, present
appeal is filed by the original claimants seeking enhancement.
4. Heard Mr.Kaash Thakkar, learned advocate for the
appellants- original claimants and Mr.Vibhuti Nanavati, learned advocate
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
for respondent No.2- insurance company. Since the insurance company
has not disputed the issuance of policy to the truck and liability not being
denied, presence of other respondents is not necessary for deciding this
appeal. Record and proceedings of the case is secured. This appeal has
been disposed of, keeping in mind that the deceased died at the young
age, who was sole earning member of his family.
5. Mr.Kaash Thakkar, learned advocate for the appellants
submitted that the Tribunal is in error in not awarding compensation to
the original claimants towards future prospective income. He submitted
that as the deceased was aged between 30 to 35 years, the original
claimants would be entitled to 40% rise towards future prospective
income. As the deceased was survived by 6 dependents (mother died
during the pendency of the claim petition), 1/5th ought to have been
deducted towards personal expenses instead of 1/3rd. He further
submitted that considering age of the deceased, multiplier of 16 would be
applicable instead of 13.
In relation to consortium, he submitted that as the deceased
was survived by spouse and 5 minor children, original claimants would
be entitled for Rs.40,000/- to each dependent as consortium. In support of
his submission, he relied upon decision of Hon'ble Supreme Court in the
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias
Chuhru Ram reported in 2018 (18) SCC 130 and United India
Insurance Company Vs. Satinder Kaur @ Satwinder Kaur reported in
AIR 2020 SC 3076. Further for compensation towards funeral expenses
and loss of estate, he submitted to enhance the same. In support of his
submission, he relied upon decision of Hon'ble Supreme Court in the
case of National Insurance Company Limited vs. Pranay Sethi and
Others reported in (2017) 16 SCC 680 and Sarla Verma and others Vs.
Delhi Transport Corporation and another reported in (2009) 6 SCC
1211.
6. Per contra, learned advocate Mr.Vibhuti Nanavati, for the
respondent- insurance company submitted that the Tribunal, relying upon
deposition of Mahipatsinh Jadeja - Manager of the company, where the
deceased was working, has correctly assessed the income at Rs.3,000/-
per month. In relation to future prospective income, he fairly submitted
that in view of decision of the Hon'ble Supreme Court in the case of
National Insurance Company Limited vs. Pranay Sethi and Others
reported in (2017) 16 SCC 680, the original claimants would be entitled
for 40% rise. 1/5th amount is to be deduced towards personal expenses
and multiplier of 16 would be applicable instead of 13. He fairly
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submitted to enhance the compensation accordingly. In relation to
compensation towards funeral expenses and loss of estate, he fairly
submitted to enhance the same.
7. Heard learned advocates for the respective parties and
perused the record and proceedings of the case. Following points would
rise for consideration:
(i) Whether the compensation awarded by the Tribunal in sum
of Rs.3,62,000/- is just and reasonable compensation? And if
not, then to what extent, it is required to be enhanced and
under what head?
(ii) What order?
RE: Point (i) The facts relating to road traffic accident occurred on
11/09/1998, the issuance of policy and the same being in force on the date
accident, are not in dispute. Since it has been dealt with by the Tribunal
extensively, the same are not discussed herein. Negligence held by the
Tribunal has not been disputed by either party.
Upon re-appreciation of evidence, it is noticed that Mahipatsinh
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
Jadeja, a Manager of Santalpur Clay Pvt.Ltd., where the deceased was
working, in his deposition at Exhi-34, has stated that the deceased was
working as security guard in their factory situated at Radhanpur Road and
was earning Rs.3,000/- per month. Further in the cross-examination by
the insurance company, nothing contrary came on record. Therefore, in
my opinion, Tribunal is correct in assessing the income of the deceased at
Rs.3,000/- per month. As per Post Mortem report at Exh-32, the deceased
was between of 30 to 35 years of age and therefore, in view of decision of
the Hon'ble Supreme Court in the case of Pappu Deo Yadav V/s. Naresh
Kumar reported in AIR 2020 SC 4424 and Pranay Sethi (supra), the
original claimants would be entitled to 40% rise towards future
prospective income. Considering his age, multiplier of 16 will be
applicable and not 13. As deceased was survived by six dependents
(mother of the deceased died during the pendency of the claim petition),
1/5th amount would be deducted towards personal expenses. Thus, the
original claimants would be entitled for dependency loss as under:
"Rs.3,000/- per month + Rs.1,200/- (40% prospective rise) =
Rs.4,200/- per month - Rs.840/- (1/5th dependency) = Rs.3,360/-
per month x 12 months = Rs.40,320/- per annum x 16 multiplier
(considering age at 38 years) = Rs.6,45,120/-".
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
8. In relation to consortium, this Court is in agreement with the
submission advanced by learned advocate for the original claimants,
which has been fairly accepted by learned Advocate Mr.Vibhuti
Nanavati, that original claimants would be entitled for Rs.40,000/-each
towards spousal and parental consortium (widow and 5 minors). Further,
the original claimants would be entitled to get Rs.15,000/- towards
funeral expenses and Rs.15,000/- towards loss of estate as held in the case
of Pranay Sethi (supra).
9. The original claimants thus would be entitled to get total
compensation as under:
Loss of dependency Rs.6,45,120/-
Loss of spousal consortium Rs. 40,000/-
Loss of parental consortium Rs.2,00,000/-
Funeral Expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Total compensation Rs.9,15,120/-
10. In view of the above, following order is passed:-
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
ORDER
(1) First Appeal is partly allowed.
(2) The appellants - original claimants would be entitled
to total compensation of Rs.9,15,120/-. As the Tribunal has
awarded an amount of Rs.3,62,000/-, the respondent - Insurance
company shall deposit the balance amount of compensation of
Rs.5,53,120/- [Rs.9,15,120/- - Rs.3,62,000/-] with interest at the
rate of 6% per annum with proportionate costs, from the date of
filing of the claim petition till its realisation, with the Tribunal
within a period of eight weeks from the date of receipt of this
order.
(3) It is needless to say that the original claimants are
entitled for balance amount and the same shall be disbursed to the
original claimants through RTGS. The rest of the judgment and
award passed by the learned Tribunal shall remained unaltered.
(4) Deficit Court Fees, if any, is to be paid by the appellants within
a period of four weeks, failing which, the amount shall be recovered
from the amount to be deposited by the insurance company.
C/FA/329/2008 JUDGMENT DATED: 30/09/2022
(5) 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)
DIPTI PATEL
