Gujarat High Court
Sugaben Wd/O Barjubhai @ ... vs Ganjibhai Nandariyabhai Gamit on 10 April, 2023
Bench: Gita Gopi
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1030 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUGABEN WD/O BARJUBHAI @ BHARJUBHAI GAMIT
Versus
GANJIBHAI NANDARIYABHAI GAMIT
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 5
NOTICE SERVED for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/04/2023
ORAL JUDGMENT
1. The claimants have challenged the judgment
and award dated 19.7.2017 passed in MACP
no.11/22 by the MACT, Tapi at Vyara, whereby
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
the learned Tribunal was pleased to grant
compensation of Rs.4,27,000/- with interest
at the rate of 9% per annum while laying
down 70% liability on the opponents no.3, 4
and 5 of tanker no.GJ-26 T-0100 and 30%
liability of opponents no.1 and 2 of
rickshaw no. GJ-26 T-285.
2. The facts of the case which have given rise
to filing of the present appeal suggest that
on 22.3.2011, the claimants and the deceased
Barjubhai @ Bharjubhai Surjibhai Gamit along
with claimants of other claim petitions were
traveling in a rickshaw from Anandpura to
Navapura and at about 8.30 a.m., when they
reached near the village Jamki, opponent
no.3-driver of tanker came in a rash and
negligent manner endangering human life and
dashed the rickshaw. As a result of which,
the rickshaw turned turtle and the deceased
Barjubhai @ Bharjubhai Surjibhai Gamit died.
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
3. It was urged before the Tribunal that at the
time of death, he was 44 years old and was
earning Rs.5,000/- by doing masonry work and
was earning from agriculture work. Advocate
Mr. Modi submits that the learned Tribunal
has not taken into consideration the income
of the deceased as a mason and earning from
agriculture work. Mr. Modi submitted that at
the most, the Tribunal ought to have kept in
mind the minimum wages schedule to grant
compensation amount.
4. Advocate Mr. Palak Thakkar for respondent
no.2 - insurance Company of rickshaw
submitted that the learned Tribunal has
considered the income and in accordance to
the oral evidence on record, no documentary
evidence were produced to substantiate the
fact of earning from masonry and agriculture
work.
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
5. Mr. Meena, while adopting the arguments
advanced by learned advocate Mr. Palak
Thakkar submitted that the assessment made
by the Tribunal is in accordance to the
evidence on record and stated that it
warrants no interference from this Court.
6. Countering the arguments, Mr. Modi submitted
that the learned Tribunal ought to have
noticed that the dependents were 4 in number
and thus, that itself would have been a good
ground to assess the income as the deceased
was the sole earning member to maintain the
family. It is further submitted that the
learned Tribunal has failed to grant
consortium loss to the claimants as widow
and children of the deceased.
7. The learned Tribunal, while considering the
case of the claimants as of composite
negligence, has held 70% liability of the
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
driver of the tanker, while 30% rickshaw
driver. No challenge has been given to the
negligence aspect nor any counter evidence
has been brought to the notice of this Court
to express any contrary view to what has
been observed by the Tribunal. Thus, issue
no.1 requires no interference of this Court.
8. The deceased, at the time of the accident,
was aged about 44 years. It is stated that
he was maintaining the family by doing
masonry work as well as the agriculture
work. The minimum wages on the date of the
accident as per the scheduled comes to
Rs.4,370/-. No documentary evidence is
produced on record to show that he was
earning from any agriculture activity. Thus,
keeping in mind the minimum wages schedule,
the monthly income of the deceased can be
considered as Rs.4,500/-. The deceased was
44 years at the time of the death. Thus, 25%
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
prospective rise in income is to be granted.
There are 4 dependents of the deceased and
one-fourth would have to be deducted. Hence,
the calculation would be Rs.4,500/- +
Rs.1,125/- (25% increase) = Rs.5,625/- -
Rs.1,406/- (one-fourth) = Rs.4,219/-.
Applying the multiplier of 14, the
dependency loss would come to Rs.7,08,792/-
(Rs.4,219/- X 12 X 14).
9. There are 4 dependents of the deceased which
includes widow and 3 children. Hence, as per
the decision in the case of Magma General
Insurance Company Limited Vs. Nanu Ram alias
Chuhru Ram & Ors., reported in (2018) 18 SCC
130, consortium money of Rs.1,60,000/- is
granted (Rs.40,000/- X 4). As per the
decision in the case of National Insurance
Company Limited Vs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680, under the
head of loss to estate and funeral expenses
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
Rs.15,000/- under each head is granted.
Thus, the compensation amount would be
computed as under:-
Rs.7,08,792/- Loss of dependency
Rs.1,60,000/- Loss of consortium
Rs.15,000/- Loss to estate
Rs.15,000/- Funeral expenses
Rs.8,98,792/- Total compensation
10. As the Tribunal has granted compensation of
Rs.4,27,000/- with interest at the rate of
9% per annum, the appellants would be
entitled to the enhanced amount of
compensation of Rs.4,71,792/- with interest
at the rate of 7.5% per annum from the date
of filing of the claim petition till its
realization. Both the insurance Companies
are directed to deposit the said enhanced
amount in accordance to the negligence
apportioned by the Tribunal within eight
weeks from the date of receipt of writ of
this Court.
C/FA/1030/2019 JUDGMENT DATED: 10/04/2023
11. The impugned judgment and award be modified
accordingly. The appeal is partly allowed.
Registry is directed to send the record and
proceedings back to the Tribunal, if
received.
(GITA GOPI,J)
Maulik
