Savitaben Wd/O Kanubhai ... vs Name Not Given At Filing
2023 Latest Caselaw 5688 Guj

                                                                                           NEUTRAL CITATION




     C/FA/5232/2008                                       JUDGMENT DATED: 04/08/2023

                                                                                            undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 5232 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO                    Sd/-

================================================================

 1     Whether Reporters of Local Papers may be allowed to see the                Yes
       judgment ?

 2     To be referred to the Reporter or not ?                                     No

 3     Whether their Lordships wish to see the fair copy of the judgment ?         No

 4     Whether this case involves a substantial question of law as to the          No
       interpretation of the Constitution of India or any order made
       thereunder ?


================================================================
     SAVITABEN WD/O KANUBHAI VAKHATSINH PARMAR & 4 other(s)
                            Versus
               NAME NOT GIVEN AT FILING & 5 other(s)
================================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MR VC THOMAS(5476) for the Defendant(s) No. 3
SERVED BY AFFIX. (R) for the Defendant(s) No. 2,4,5
================================================================

 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                  Date : 04/08/2023

                                 ORAL JUDGMENT

1. This appeal has been filed by the appellants - original claimants against the respondents - original opponents under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) against the judgment and

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

award passed by the learned Motor Accident Claims Tribunal (Auxi.), 1st Fast Track Court, District Panchmahalas at Godhra in MACP No. 1220 of 1994 on 15.11.2006. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.

2. The brief facts that emerge from the record of the case are as under:

2.1. That on 27.11.1994, Kanubhai Vakhatsinh Parmar was traveling in matador bearing registration No.GJ-6-T-3095 and he was also working as a driver in the same vehicle but as it was a long journey, the opponent No.4, who was a second driver, driving the said vehicle and when they reached at the place of accident, truck bearing registration No.GJ-9-T-7457 was parked without any signal or obstruction on the road and the opponent No.4, who was driving the matador, dashed with the stationary vehicle, as a result of which, the accident occurred and Kanubhai Vakhatsinh Parmar sustained serious injuries and succumbed to his injuries on the spot. The offence was registered with Kasa Police Station being I-C.R.No. 294 of 1994.

2.2. The claimants, who are the widow, children and mother of deceased Kanubhai Vakhatsinh Parmar, have filed the claim

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

petition mainly claiming that the deceased was aged about 24 years, was hale and hearty, of sound physique, was a hard working person and was earning Rs. 2400/- per month. That all the claimants depended upon the earning of the deceased and they have lost their sole bread winner and have claimed an amount of Rs.8 Lakhs with interest at the rate of 24% from all the opponents jointly and severally under all the available heads.

3. The opponents were duly served with the summons but the opponent No.2 did not appear. The other opponents appeared and the opponent No. 3 and 6 - insurance companies of both the vehicles filed the written statements at Exh.22 and 37 respectively. The opponents - insurance companies have mainly denied all the allegations made in the claim petition and have urged the learned Tribunal to dismiss the claim petition.

4. The learned Tribunal, considering the income of the deceased at Rs.1500/- per month, added prospective income and deducted 1/3 amount for personal expenses and as the deceased was aged about 27 years, applied the multiplier of 16 and awarded an amount of Rs.2,88,000/- towards the loss of dependency, Rs.5,000/- towards the transportation charges, Rs.2,000/- towards funeral expenses and

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

Rs.10,000/- towards loss of consortium to the claimants and in all, awarded an amount of Rs.3,05,000/- with interest at the rate of 9% per annum from the date of filing the claim petition to 31.12.2000 and thereafter, with interest at the rate of 7.5% from 01.01.2001 till the satisfaction of the award.

5. Being aggrieved and dissatisfied with the judgment and award, the claimants have filed the claim petition mainly stating that the learned Tribunal has erred in considering the income of the deceased at Rs.1,500/- per month and has also erred in adopting the multiplier of 16 and has awarded very less amount under the heads of lost of consortium, loss of estate and funeral expenses and has urged this Court to modify the order of the learned Tribunal and to enhance the amount of compensation.

6. Heard learned advocate Mr.M.T.M.Hakim for the appellants, learned advocate Mr.V.C.Thomas for the respondent No.3 and learned advocate Mr.G.C.Majmudar for the respondent No. 6. Though served, the other respondents have not appeared.

7. Learned advocate Mr.M.T.M.Hakim for the appellants has reiterated the contents of the appeal memo and has stated that the amount of compensation is required to be enhanced

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

in view of decisions of the Hon'ble Apex Court in the cases of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211 and National Insurance Company Limited Vs. Pranay Sethi reported in (2017) 16 SCC 680 and also Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram reported in (2018) 18 SCC 130, and accordingly, the amount of compensation may be enhanced.

8. Learned advocate Mr.V.C.Thomas for the respondent No.3 and learned advocate Mr.G.C.Majmudar for respondent No.6 have stated that the learned Tribunal has not erred in any manner and has properly appreciated the evidence regarding the income of the deceased and there is no merits in the appeal, and hence, the appeal may be dismissed.

9. On perusal of record and proceedings of MACP No. 1220 of 1994, the claimant No.1 - widow of deceased Kanubhai Vakhatsinh Parmar has been examined at Exh.42 and she has narrated all the facts of the claim petition. She has categorically stated that the deceased was working as a driver and even as per the FIR and other documents including the copy of the license of the deceased produced on record, it is proved that the deceased was working as a driver. The accident has occurred on 27.11.1994 and the income of the

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

deceased to be Rs.1,500/- per month seems to be just and proper. As per the judgment of the Apex Court in the case of Sarla Verma (Supra), as the deceased was 27 years old on the date of the accident, 40% future prospective must be added and the monthly income would be Rs.2,100/-, out of which, as there are five dependents, ¼ amount must be deducted for personal expenses and annual loss of dependency would be Rs.18,900/-. The deceased was admittedly 27 years old on the date of accident and the multiplier of 17 must be applied and accordingly, total loss of dependency would be 3,21,300/-. The learned Tribunal has awarded annual amount of Rs.10,000/- towards the consortium to the claimant No.1 - widow but, as per the decision of the Apex Court in the case of Magma General Insurance Co. Ltd. (Supra), the claimants are entitled to Rs.1,60,000 towards loss of spousal, parental and filial consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, and in all, the claimants are entitled to Rs.5,11,300/-. The learned Tribunal has already awarded an amount of Rs.3,05,000/- and hence, the claimants are entitled to an additional amount of Rs.2,06,300/-with 6% interest from the date of filing of the claim petition till realization.

10. For the foregoing reasons, the appeal is allowed and the

NEUTRAL CITATION

C/FA/5232/2008 JUDGMENT DATED: 04/08/2023

undefined

judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), 1st Fast Track Court, District Panchmahalas at Godhra in MACP No. 1220 of 1994 on 15.11.2006 is hereby modified and in addition, the claimants are entitled to receive Rs.2,06,300- as an additional amount of compensation with interest at the rate of 6% per annum on the enhanced amount til realization. The insurance company is directed to deposit the additional amount of compensation with 6% interest as early as possible within an outer limit of eight weeks from the date of receipt of certified copy of this order. After depositing of the additional amount of compensation, the same shall be disbursed in favour of the claimants through NEFT / RTGS, after proper verification.

11. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.

Sd/-

(S. V. PINTO, J) F.S.KAZI.....