Gujarat High Court
Sitaben Kanusinh Salamsinh vs D G P & I G P Of Police on 18 August, 2023
Bench: S.V. Pinto
NEUTRAL CITATION
C/FA/782/2009 JUDGMENT DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 782 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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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 ?
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SITABEN KANUSINH SALAMSINH & 4 other(s)
Versus
D G P & I G P OF POLICE & 1 other(s)
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Appearance:
MR VICKY B MEHTA(5422) for the Appellant(s) No. 1,2,3,4,5
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/08/2023
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
award passed by the learned Motor Accident Claims Tribunal
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C/FA/782/2009 JUDGMENT DATED: 18/08/2023
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(Auxi.), Ahmedabad City, Fast Tract Court No.2 in MACP No.
M-77 of 2003 on 30.06.2008. 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 09.01.2003, one Kalusinh Salamsinh Khant was on
his night duty at Balasinor Police Station and had gone for
investigation with other police personnel in jeep bearing
registration No.GJ-7G-299, which was being driven by
Chandubhai Khatubhai and they were going from Balasinor
to Virpur. That at that time, the driver was driving the jeep in
a full and excessive speed and in a rash and negligent
manner and he lost control over the jeep, as a result of
which, the said jeep dashed with a tree and Kalusinh
Salamsinh Khant and other occupants sustained injuries but,
Kalusinh Salamsinh Khant sustained grievous injuries and
succumbed to the injuries. The offence was registered as I-
C.R.No.4 of 2003 with Balasinor Police Station.
2.2 The claimants, who are the widow and minor children and
parents, have filed the claim petition mainly stating that
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C/FA/782/2009 JUDGMENT DATED: 18/08/2023
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deceased Kalusinh Salamsinh Khant was aged about 28 years
and was working as police constable in the police department
and was drawing salary Rs.5,000/-. That he was hale and
hearty and due to his death, they have lost their sole earning
member. That they have also lost their love and affection.
Hence, the claimants have claimed an amount of Rs.
9,00,000/- as compensation from the opponents jointly and
severally under all the available heads.
3. The notices were served to the opponents and opponent No.1,
who was the employer of deceased Kalusinh Salamsinh Khant
filed the written statement at Exh. 18 mainly denying the
averments and allegations made in the claim petition and
denied to pay any compensation to the claimants as the
Insurance Company was solely responsible to pay the amount
of compensation to the claimants. That opponent No. 1 also
contended that the deceased did not succumb to the direct
injuries in the vehicular accident. Opponent No. 2 -
Insurance Company of the jeep involved in the accident filed
the written statement at Exh. 19 denying the averments made
by the claimants in the claim petition but admitted that the
said jeep was insured with the insurance company and has
contended that the driver of the vehicle did not have valid
driving licence at the time of accident and urged the learned
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C/FA/782/2009 JUDGMENT DATED: 18/08/2023
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Tribunal to reject the claim petition.
4. The learned Tribunal, after considering the oral as well as
documentary evidence submitted by all the parties on record,
has partly allowed the claim petition and held the opponents
are jointly and severally liable to pay the amount of
Rs.5,91,400/- to the claimants with interest at the rate of
7.5% from the date of filing the claim petition till realization.
5. Being aggrieved and dissatisfied with the judgment and
award, the claimants have preferred the present appeal
mainly stating that the deceased was serving as a constable in
the police department and was drawing the monthly salary
Rs.4,720/- but, the learned Tribunal has not considered any
prospective income of the deceased. That the amount under
the head of loss of dependency benefits is not properly
calculated and the learned Tribunal has also not applied the
multiplier as per the settled principles of law in the case of
Sarla Verma and others Vs. Delhi Transport Corporation and
another reported in (2009) 6 SCC 1211. That the amount of
consortium, funeral expenses and loss of estate is also not
properly awarded by the learned Tribunal and the same is
required to be enhanced.
6. Heard learned advocate Mr. Vicky B. Mehta for the
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appellants - original claimants and learned advocate Mr.
Karuna Rahevar for respondent No. 2 - Insurance Company.
7. On perusal of the record and proceedings of the MACP No.
M-77 of 2003. The claimant No.1 has filed her deposition at
Exh. 22 and has reiterated the contents of the claim petition
and during the cross examination, she has admitted that she
is not an eye witness of the accident. Claimant No.1 has
admitted that the deceased has died on the spot and beside
this, no other material has come on record. The claimants
have produced copy of complaint at Exh. 26, copy of
panchnama of place of offence at Exh.27, copy of inquest
panchanama at Exh. 28, copy of salary slip of the deceased at
Exh.29. On perusal of the documents, it appears that the
deceased was earning Rs.4,720/- per month as he was
working a police constable at Balasinor Police Station.
8. The claimants have also examined one Manishbhai Tejabhai
Gupta, a head clerk in the Administrative Department, D.S.P.
Office at Nadiadat Exh. 40 and the said witness has produced
a salary certificate of the deceased.
9. The learned Tribunal has considered this evidence and has
considered the monthly income of Rs.4,720 and has deducted
1/3 amount as personal expenses of the deceased and but,
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has not awarded any future prospects in this income. As per
the settled principles of law, in National Insurance Company
Vs. Pranay Shethi reported in (2017) 16 SCC 680, 50%
addition of the annual salary is to be done when the deceased
is less than 40 years of age and as per the record, the
deceased was aged 28 years on the date of the accident and
particularly, when the deceased had permanent job and it is
admitted that the deceased was a police constable and
earning Rs.4,720/- per month. If the deduction of the
certificate at Exh. 29 is concerned, an amount of Rs.621/-
(Rs.500+Rs.121=Rs.621) was deducted towards G.P. fund,
Rs.150/- was deducted Diwali advance, Rs.20/- was
deducted towards Professional Tax and Rs.50/- was deducted
towards insurance. As per the decision of the Apex Court in
the case of Sarla Verma (Supra), the amount of tax is to be
deducted and hence, out of the amount of Rs.4720/, an
amount of tax of Rs.20/- is to be deducted and monthly
income of the deceased is to be calculated Rs.4,700/- per
month, to which, 50% future prospective has to be added and
the amount would come to Rs.7050/-. Admittedly, the
dependent of the deceased are the wife, two minor children
and parents and as per the settled principles of law by the
Apex Court in the case of Pranay Shethi (Supra), 1/4 amount
is to be deducted for personal and living expenses where the
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dependent family members are 4 to 6 and deducting ¼
amount i.e. Rs.1,762/- from an amount of Rs.7,050/-,
monthly loss of dependency would be Rs.5,288/- and the
annual loss of dependency would be Rs.63,456/-. The
learned Tribunal has awarded multiplier of 15 but,
admittedly, the deceased was aged about 31 years on the date
of accident and as per the case of Pranay Shethi (Supra), the
claimants would be entitled to the multiplier of 16 and
hence, the claimants are entitled to an amount of
Rs.10,15,296/- towards the future loss of dependency.
10. The learned Tribunal has awarded an amount of Rs.10,000/-
towards loss of estate, Rs.10,000/- towards loss of
consortium, Rs.5,000/- towards funeral expenses. But As per
the settled principle of law in the case of Pranay Shethi
(Supra) and also in the case of Magma General Insurance Co.
Ltd. v. Nanu Ram alias Chuhru Ram reported in (2018) 18
SCC 130, the claimants are entitled to an amount of
Rs.15,000/- towards loss of estate, Rs.15,000/- towards
funeral expenses, an amount of Rs.40,000/- towards loss of
spousal consortium, an amount of Rs.80,000/- towards loss
of parental consortium and Rs.80,000/- towards loss of loss
of filial consortium and in all, the claimants are entitled to
Rs.12,45,296/-. The learned Tribunal has awarded an
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amount of Rs.5,91,400/- and hence, the claimants are
entitled for enhanced amount of Rs.6,53,896/- with interest
at the rate of 6% per annum from the date of filing of the
claim petition till realization.
11. For the foregoing reasons, the appeal is allowed and the
judgment and award passed by the learned Motor Accident
Claims Tribunal (Auxi.), Ahmedabad City, Fast Tract Court
No.2 in MACP No. M-77 of 2003 on 30.06.2008 is hereby
modified and in addition, the claimants are entitled to receive
for enhanced amount of Rs.6,53,896/- with interest at the
rate of 6% per annum from the date of filing of the claim
petition till 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.
12. 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.....
