Gujarat High Court
Vaniben Wd/O Vinodbhai Gemabhai ... vs Mustaq Abdulsalam Kolia on 28 April, 2023
Bench: Gita Gopi
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1761 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VANIBEN WD/O VINODBHAI GEMABHAI MANDOL
Versus
MUSTAQ ABDULSALAM KOLIA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/04/2023
ORAL JUDGMENT
1. By way of this Appeal, the Appellants-claimants have
challenged the judgment and award dated 28.02.2017
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
passed by the learned Motor Accident Claims Tribunal
(Aux.), Panchmahal in M.A.C.P. No.1161 of 2012 on
the ground, that the income of the deceased has not
been considered in accordance with the evidence
produced on record.
2. Learned Advocate appearing for the appellants-
claimants Mr. Nishit A. Bhalodi submitted that the
deceased was an agriculturist and was doing
agricultural work and was supporting his family
having five dependents. Learned Advocate for the
appellants-claimants submits that the learned Tribunal
even in absence of documentary evidence should have
believed the real evidence produced by the claimants
who had given the evidence on the basis of their
knowledge. It is further submitted that is very hard
for an agriculturist to keep the book of accounts
where the income is not taxable. Therefore, it is
submitted that it would be very difficult for a person
working in an agricultural field or the owner of an
agricultural land to prove his income and hence, at
least the managerial skill of the deceased should have
been recognized by the learned Tribunal and as such,
the family would need to sustain themselves in
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
absence of head of the family who could have looked
after the agricultural work efficiently.
3. While countering the arguments, it is submitted by
learned Advocate for the respondent - Insurance
Company Mr. Maulik J. Shelat that any income which
is proposed by the claimants was required to be
proved by way of cogent evidence. The claimant/s
could have supported their case by producing any
documentary evidence from any Co-operative Society
or any Institution where the agricultural produce
would have been deposited, more so, in absence of
any Books of Accounts, to inspire confidence and to
support the case that they were earning from the
agricultural land. It is therefore, submitted that no
interference is required in the judgment and award
passed by the learned Tribunal.
4. As per the facts of the case, on 16.10.2012 at about
15.30 hours, the deceased was walking on the side of
the road, and at that time, the respondent No.1 came
driving a Santro Car bearing Registration No.GJ-17-N-
0551 in a rash and negligent manner and in excessive
speed and endangering human life and dashed with
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
the deceased, who died at the place of accident.
The deceased was young - 30 years of age, healthy
and doing agricultural and senting work.
5. Heard learned Advocates appearing for the respective
parties and perused the records of the case.
6. It appears that the main dispute raised is regarding
the assessment of income, where the learned Tribunal
has considered the monthly income of the deceased
@ Rs.3,000/-. Further, on record a copy of the
Village Form Abstract 7/12 was produced wherein
name of the deceased gets reflected as owner of the
land. This fact has substantiated the theory that the
deceased was holding agricultural land. The learned
Tribunal then could have considered the loss of
agricultural management of the deceased and could
have compensated the claimants. Taking into
consideration, the date of accident, this Court
considers the amount of Rs.4,500/- per month of the
deceased for his managerial skill and this would
sufficiently compensate to bear the loss and thus,
accordingly the income of the deceased is considered
as Rs.4,500/- per month. The deceased was aged 30
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
years at the time of accident and the learned
Tribunal has rightly considered the multiplier of 17.
However, considering the age of the deceased and
being a self-employed person, and relying on the
decision of the Hon'ble Apex Court in the case of
National Insurance Company Limited v. Pranay Sethi
and Others reported in 2017 16 SCC 680, 40%
prospective rise in income is required to be
considered. Thus, considering the monthly income
as Rs.4,500/- per month and adding 40% prospective
rise in income, the rise would be Rs.1,800/- and
hence, the monthly income can be considered as
Rs.6,300/- (Rs.4,500/- + Rs.1,800/-). Considering the
number of dependents, i.e. five, one fourth amount is
required to be deducted from the monthly income of
Rs.6,300/- and hence, the one fourth deduction comes
to Rs.1,575/-. Deducting Rs.1,575/- from Rs.6,300/-
the amount of Rs.4,725/- per month can be
considered. Applying the multiplier of 17 to arrive
at the dependency loss, the amount comes to
Rs.9,63,900/- (Rs.4,725/- per month x 12 years x 17
multiplier).
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
7. The learned Tribunal has granted an amount of
Rs.7,000/- under the head of Funeral and
Transportation Expenses. This Court deems it just
and proper to grant an amount of Rs.15,000/- under
the head of loss of estate and Rs.15,000/- under the
head of Funeral Expenses, following the decision of
the Hon'ble Apex Court in the case of Pranay Sethi
(supra).
8. As per the decision of the Hon'ble Apex Court in the
case of Magma General Insurance Co. Ltd vs Nanu
Ram Alias Chuhru Ram reported in 2018 ACJ 2782,
the consortium amount is to be granted. Relevant
paragraphs of this decision are reproduced
hereunder :-
"8.7 A Constitution Bench of this Court in Pranay
Sethi (supra) dealt with the various heads under
which compensation is to be awarded in a death
case. One of these heads is Loss of Consortium. In
legal parlance, "consortium" is a compendious term
which encompasses 'spousal consortium', 'parental
consortium', and 'filial consortium'. The right to
consortium would include the company, care, help,
comfort, guidance, solace and affection of the
deceased, which is a loss to his family. With respect
to a spouse, it would include sexual relations with
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
the deceased spouse. Spousal consortium is
generally defined as rights pertaining to the
relationship of a husband− wife which allows
compensation to the surviving spouse for loss of
"company, society, co− operation, affection, and
aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the
premature death of a parent, for loss of "parental
aid, protection, affection, society, discipline,
guidance and training." Filial consortium is the
right of the parents to compensation in the case of
an accidental death of a child. An accident leading
to the death of a child causes great shock and
agony to the parents and 3 Rajesh and Ors. vs.
Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S
LAW DICTIONARY (5th ed. 1979) family of the
deceased. The greatest agony for a parent is to lose
their child during their lifetime. Children are valued
for their love, affection, companionship and their
role in the family unit.
Consortium is a special prism reflecting changing
norms about the status and worth of actual
relationships. Modern jurisdictions world−over have
recognized that the value of a child's consortium far
exceeds the economic value of the compensation
awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death
of a child. The amount awarded to the parents is a
compensation for loss of the love, affection, care
and companionship of the deceased child.
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
The Motor Vehicles Act is a beneficial legislation
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."
9. The dependents are five in nos., i.e. one widow,
three minors and the deceased's mother. Applying
the ratio as laid down by the Hon'ble Apex Court in
the case of Magma General Insurance (supra) and the
number of claimants being 5, Rs.2,00,000/- is
required to be granted under the head of loss of
consortium (i.e. Rs.40,000 x 5 claimants).
10. Thus, the computation can be arrived at, as
under :-
Dependency loss : Rs. 9,63,900/-
Loss of Estate : Rs. 15,000/-
Funeral Expenses : Rs. 15,000/-
Loss of Consortium : Rs. 2,00,000/-
TOTAL Rs.11,93,900/-
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
11. The learned Tribunal has awarded an amount of
Rs.6,28,700/- with rate of interest @ 9% per annum,
which the respondent/s are liable to deposit, with the
enhanced amount as Rs.5,65,200/- (Rs.11,93,900/-
minus Rs.6,28,700/-).
12. At this stage, it is submitted that while the
delay came to be condoned, a condition was laid that
the claimant/s would not be entitled for the interest
of delayed period, i.e. from 15.019.2017 to
15.09.2022. Hence, accordingly it is ordered that no
interest to be paid on the compensation amount for
the referred period. In the result, the present
respondent/s are directed to deposit the compensation
amount within a period of EIGHT (8) WEEKS from
the date of receipt of writ of the order of this Court.
It is further directed that the claimants would be
entitled to receive the enhanced compensation @
7.5% per annum from the date of the application and
the disbursement of the amount be made as per the
judgment and award of the learned Tribunal.
C/FA/1761/2023 JUDGMENT DATED: 28/04/2023
13. In view of the above, the Appeal is allowed and
the judgment and award dated 28.02.2017 passed by
the learned Motor Accident Claims Tribunal (Aux.),
Panchmahal in M.A.C.P. No.1161 of 2012 stands
modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
