Jamnaben Wd/O Raysangbhai ... vs Godse Mayappa Yashwant (Deleted)
2023 Latest Caselaw 3132 Guj

     C/FA/3094/2018                               JUDGMENT DATED: 21/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3094 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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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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     JAMNABEN WD/O RAYSANGBHAI BABUBHAI THAKOR & 4 other(s)
                           Versus
         GODSE MAYAPPA YASHWANT (DELETED) & 4 other(s)
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Appearance:
MR. NISARG D SHAH(7299) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 4,5
NOTICE UNSERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                              Date : 21/04/2023

                             ORAL JUDGMENT

1. Admit. Learned advocate Mr. Tanmay B. Karia waives service of notice of admission on behalf of respondent No.3 - insurance company.

C/FA/3094/2018 JUDGMENT DATED: 21/04/2023

2. Heard learned advocates for the parties. Perused the record. The appellants herein are original claimants before the Motor Accident Claims Tribunal (Aux) of Anand in Motor Accident Claims Petition No.114 of 2009, being widow, mother and three children of the deceased. They have preferred such petition claiming compensation for the accidental death of one Raysnagbhai Babubhai Thakor. It is undisputed fact that on 10.02.2009 deceased was going towards Vataman from Tarapur driving motorcycle. At that time, one trailer bearing No. GJ 12 X 1888 came from behind with full speed in rash and negligent manner and dashed with the rear portion of the motorcycle. As a result, deceased sustained serious injuries and died during treatment at the Tarapur Government hospital.

3. The only issue in this appeal is with regard to the quantum of compensation that may be awarded to the claimants. The tribunal has awarded an amount of Rs.4,29,320/-, considering the Rs.3450/- as prospective income, from which 1/5th share was deducted. Accordingly, the dependency would come to Rs.2760/-. The deceased was aged about 51 years and therefore, the tribunal has applied 11 as a suitable multiplier and thereby awarded Rs.3,64,320/- under the head of dependency. To such amount the tribunal has added Rs.35000/- towards loss of estate and love and affection, Rs.25,000/- towards consortium and Rs.5,000/- towards funeral expenses. Thereby, the tribunal has awarded an amount of Rs.4,29,320/- as compensation.

C/FA/3094/2018 JUDGMENT DATED: 21/04/2023

4. Learned advocate for the appellants - claimants has submitted that the tribunal has failed to consider the proper income of the deceased - victim. He has further submitted that tribunal ought to have consider at least Rs.5000/- as monthly income of the deceased. He has also submitted that the tribunal has also erred in considering the age of the deceased, since as per the Post Morterm Report at the time of death, age of the deceased was about 40 years and not 51 years.

4.1 Learned advocate for the appellants - claimants also submitted that the tribunal has erred by not awarding any amount under the head of pain, shock and suffering. Thereby, he has requested to allow the present appeal by enhancing the awarded amount suitably.

5. Learned advocate for the respondent No.3 - insurance company has supported the impugned award and submitted that this Court may not interfere with the impugned award.

6. After hearing the learned advocates appearing for the parties and perusing the record, it is clear that the tribunal has failed to consider proper income of the deceased victim, so also the prospective earning capacity and also not considered just and reasonable compensation under the heads of loss of estate, loss of consortium etc. Therefore, it would be appropriate to modify the award by enhancing the amount of compensation as under;

C/FA/3094/2018 JUDGMENT DATED: 21/04/2023

6.1 It is undisputed fact that claimants have not claimed any exhaustive amount. It is submitted that deceased was doing agricultural work as well as cattle feeding work and earning Rs.3500/- per month. As such, if we consider Rs.3500/- as his monthly income and to such amount, if we calculate 15% prospective income, then it would come to Rs.4025/-. From such amount, if we deduct again Rs.1006/- taking 1/4th towards personal expenses, Rs.3019/- would be monthly dependency of the claimants and Rs.36,228/- would be yearly dependency and after applying 11 as suitable multiplier as done by the tribunal, the claimants are entitled to Rs.3,98,508/- towards loss of dependency.

6.2 Moreover, considering the judgment of full bench of the Honourable Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017 (16) SCC 680 claimants are entitled to total Rs.70,000/- in aggregate in different conventional heads. In case of Sarla Verma & Ors. vs. Delhi Transport Corporation reported in Air 2009 SC 3104, the Honourable Supreme Court has held that the amount of personal expenses which the deceased would have spend on himself has he been alive from his monthly income should be determined on the basis of number of dependents. In case of Magma General Insurance Co. Ltd vs. Nanu Ram @ Chugru Ram reported in (2018) 18 SCC 130, the Honourable Supreme Court has held as under;

"The Motor Vehicles Act is a beneficial legislation

C/FA/3094/2018 JUDGMENT DATED: 21/04/2023

aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra)."

6.3 Therefore, in view of settled legal position as above claimants are entitled to Rs.1,00,000/- as consortium, Rs.1,00,000/- as loss of estate and love and affection and Rs.30,000/- as funeral expenses. Thereby, claimants are entitled to total Rs.6,28,508/-. Whereas the tribunal has awarded Rs.4,29,320/- and, therefore, present appeal is partly allowed. The claimants are entitled to enhanced amount of Rs.1,99,188/- with the interest at the rate of 7.5% from the date of original petition. The insurance company shall deposit the enhanced amount with interest within 6 weeks from the date of this order before the tribunal.

7. In view of above, appeal is allowed as above and disposed of accordingly. Record and Proceedings, if called for be sent back to the concerned tribunal forthwith.

(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA