Gujarat High Court
Kherunben Ibrahimbhai Belim vs Pravinbhai Prahladbhai ... on 3 August, 2023
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1857 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=================================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=================================================
KHERUNBEN IBRAHIMBHAI BELIM
Versus
PRAVINBHAI PRAHLADBHAI PRAJAPATI
=================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
SERVED BY AFFIX. (R) for the Defendant(s) No. 1
=================================================
Page 1 of 10
Downloaded on : Sun Sep 17 00:05:15 IST 2023
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/08/2023
ORAL JUDGMENT
1. Challenge is given to the judgment and award dated
10.01.2020 passed by the learned Motor Accident Claims Tribunal
(Auxiliary), Mahesana in Motor Accident Claim Petition No. 162 of
2017 mainly on the ground that the income aspect has not been
rightly considered and further consortium loss has not been granted
to the claimants.
2. On 12.04.2017, deceased - Ibrahimbhai Pirubhai Belim, was
going by drawing the cycle, accompanied with Muskanbanu,
Rasulbhai and Mumtazben, who were walking along with him. At
about 9:00 hours when they were passing through Nandasan -
Dangarva road, near bore-well of Saiyed Abdul Ahmad, at that time,
one Maruti Eeco car bearing registration No. GJ-01-KQ-5294 came
in rash and negligent manner, in excessive speed and from the rear
side, dashed with all of them and due to the accident, they sustained
injuries and taken to Lions General Hospital at Mahesana. Since,
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
Ibrahimbhai Pirubhai Belim had sustained fatal injuries, he died
during the treatment.
3. The learned Tribunal, while appreciating the fact of
negligence, has considered the driver of the Eeco car, as sole
negligent for the accident.
4. Learned advocate Mr. Bhalodi for the appellants - claimants
submitted that the deceased was an agricuture labourer and was also
doing animal husbandry work and used to supply milk in the Mandli
and was, thereby, earning about Rs.12,000/- per month but since, the
claimants could not produce the evidence of his income from the
Mandli, the learned Tribunal has failed to appreciate the said aspect
but Mr. Bhalodi submitted that learned Tribunal has assessed
Rs.5,500/- per month considering it minimum wages of the daily
wager as on 12.04.2017, but is erroneous on record.
5. Learned advocate Mr. Karia for the respondent No. 3 -
insurance company stated that the claimants had failed to produce
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
any evidence to prove the income from the Mandli or the
employment of the deceased in agricultural field and thus, stated that
in the absence of any documentary evidence, the amount of
Rs.5,500/- as assessed by the Tribunal as daily wager, is just and
appropriate.
6. The Notification of the Labour and Employment Department,
Government of Gujarat, Gandhinagar dated 26.12.2014 has
categorized the employment in various departments under the head
of skilled, semi-skilled and unskilled workers. Considering the
deceased as been agriculture labourer and dealing in the animal
husbandry, the deceased would fall in the category of unskilled
labourer and if the Minimum Wage Schedule on the date of accident
is to be followed, then, the Minimum Wage Schedule considers the
net pay of unskilled labourer as Rs.7,946/- per month.
6.1 The learned Tribunal has considered the deceased as daily
wager. It is the case of claimants that the deceased was working in
agricultural field. The evidence of selling the milk in Mandli has not
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
been proved by any documentary evidence and hence, going by the
Minimum Wage Schedule as on 12.04.2017, the date of accident, the
income for the unskilled labourer, would come to Rs.7,946/-, as
referred to herein above. 40% prospective rise in income is required
to be considered and hence, the monthly income of the deceased
would come to Rs.11,124/-. The dependents are four in number and
hence, deducting 1/4th towards personal expenses, the monthly
income would come to Rs.8,343/- (Rs.11,124 - 2,781). Considering
the annual dependency loss and applying the multiplier of 16, the
total dependency loss would come to Rs.16,01,856/- (Rs.8,343 x 12
x 16).
6.2 In Magma General Insurance Company Limited v. Nanu
Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130, the Hon'ble
Supreme Court has laid down the concept of consortium loss as
under:
"8.4 The Insurance Company has submitted that the father
and the sister of the deceased could not be treated as
dependents, and it is only a mother who can be dependent of
her son. This contention deserves to be repelled. The deceased
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
was a bachelor, whose mother had pre-deceased him. The
deceased s father was about 65 years old, and an unmarried
sister. The deceased was contributing a part of his meagre
income to the family for their sustenance and survival. Hence,
they would be entitled to compensation as his dependents.
8.5 The Insurance Company has contended that the High
Court had wrongly awarded Rs. 1,00,000 towards loss of love
and affection, and Rs. 25,000 towards funeral expenses.
8.5.1 The judgment of this Court in Pranay Sethi (supra) has
set out the various amounts to be awarded as compensation
under the conventional heads in case of death. The relevant
extract of the judgment is reproduced herein below:
Therefore, we think it seemly to fix reasonable sums. It seems
to us that reasonable figures on conventional heads, namely,
loss of estate, loss of consortium and funeral expenses should
be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
The principle of revisiting the said heads is an acceptable
principle. But the revisit should not be fact-centric or
quantum-centric. We think that it would be condign that the
amount that we have quantified should be enhanced on
percentage basis in every three years and the enhancement
should be at the rate of 10% in a span of three years.
(Emphasis supplied)
8.5.2 As per the afore-said judgment, the compensation of Rs.
25,000 towards funeral expenses is decreased to Rs.15,000.
8.5.3 The amount awarded by the High Court towards loss of
love and affection is, however, maintained.
8.6 The MACT as well as the High Court have not awarded
any compensation with respect to Loss of Consortium and
Loss of Estate, which are the other conventional heads under
which compensation is awarded in the event of death, as
recognized by the Constitution Bench in Pranay Sethi (supra).
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
8.6.1 The Motor Vehicles Act is a beneficial and welfare
legislation. The Court is duty bound and entitled to award just
compensation , irrespective of whether any plea in that behalf
was raised by the Claimant.
8.6.2 In exercise of our power under Article 142, and in the
interests of justice, we deem it appropriate to award an
amount of Rs. 15,000 towards Loss of Estate to Respondent
Nos. 1 and 2.
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.
8.7.1 In legal parlance, consortium is a compendious term
which encompasses spousal consortium , parental
consortium , and filial consortium.
8.7.2.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 the deceased
spouse (Rajesh and Ors. v. Rajbir Singh and Ors. [JT 2013 (8)
SC 288]).
8.7.3 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, cooperation, affection, and aid of the other in every
conjugal relation.
8.7.4 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.
8.7.5 Filial consortium is the right of the parents to
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
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 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.
8.7.6 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.
8.7.7 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.
8.7.8 Parental Consortium is awarded to children who lose
their parents in motor vehicle accidents under the Act.
8.7.9 A few High Courts have awarded compensation on this
count (Rajasthan High Court in Jagmala Ram @ Jagmal
Singh & Ors. v. Sohi Ram & Ors. [2017 (4) RLW 3368 (Raj)];
Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep
Kumar & 6 Ors. [2014 (3) UC 1687]; Karnataka High Court
in Lakshman and Ors. v. Susheela Chand Choudhary & Ors.
[1996 (3) Kant LJ 570 (DB)]). However, there was no clarity
with respect to the principles on which compensation could be
awarded on loss of Filial Consortium.
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
8.7.10 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).
8.7.11 In the present case, we deem it appropriate to award
the father and the sister of the deceased, an amount of Rs.
40,000 each for loss of Filial Consortium."
6.3 Here, in this case, the claimants are the widow and three
minors, thus, each would be entitled to Rs.40,000/- towards loss of
consortium, making total to Rs.1,60,000/- under the said head.
6.4 As per Pranay Sethi (supra), under the heads of funeral
expenses and loss of estate, Rs.15,000/- each is to be granted.
6.5 Thus, the computation of compensation would be as under:
Head Amount (Rs.)
Dependency Loss 16,01,856/-
Loss of Consortium 1,60,000/-
Funeral Expenses 15,000/-
Loss of Estate 15,000/-
Total 17,91,856/-
Award of Tribunal 11,78,800/-
NEUTRAL CITATION
C/FA/1857/2022 JUDGMENT DATED: 03/08/2023
undefined
Head Amount (Rs.)
Difference (Enhancement) 6,13,056/-
7. In view of the above, the appeal succeeds and is accordingly
allowed in part. The impugned judgment and award of the Tribunal
is modified to the aforesaid extent. The difference amount shall be
deposited within a period of 06 (six) weeks. The appellants -
claimants shall be entitled to interest at the rate of 7.5% per annum
on such enhanced amount of compensation, from the date of petition
till realization.
7.1 The amount of compensation is directed to be disbursed in
favour of the claimants as per award, on proper verification.
7.2 R&P, if received, be sent back forthwith.
[ Gita Gopi, J. ]
hiren
/119
