Gujarat High Court

Rahimkhan Jivabhai Rathod vs Anwarbhai Bachubhai Rathod on 6 December, 2023

Author: Gita Gopi

Bench: Gita Gopi

                                                                                      NEUTRAL CITATION




      C/FA/92/2019                                  JUDGMENT DATED: 06/12/2023

                                                                                       undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 92 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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

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 ?

==========================================================
                       RAHIMKHAN JIVABHAI RATHOD
                                 Versus
                      ANWARBHAI BACHUBHAI RATHOD
==========================================================
Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2,3,4
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 06/12/2023

                            ORAL JUDGMENT

1. The claimants as heirs of deceased -

Rashidabanu Rahimkhan Rathod, are the husband and

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

three minor children, challenging the judgment

dated 13.08.2018 passed by Motor Accident Claims

Tribunal (Main), Anand in M.A.C.P. No.608 of 2013

contesting the compensation amount granted, and

raising the ground that the money under all the

heads are on the lower side.

2. Mr.R.G. Dwivedi, learned advocate for

the appellants submitted that the claimants had

pleaded that the deceased was doing animal

husbandry work and further was looking after the

family; in spite of that only Rs.3,300/- has been

assessed by the Tribunal; and further submitted

that consortium loss was required to be granted

to even the minor children.

3. Advocate Mr. Rathin P.Raval for the

insurance company states that in absence of any

documentary evidence in respect to animal

husbandry work, the learned Tribunal has rightly,

on the basis of assumption, considered monthly

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

income as Rs.3,300/- keeping in view the age of

the deceased as 34 years at the time of accident.

Thus, submitted that the compensation granted as

being just and reasonable requires no

interference of this Court.

4. The vehicular accident occurred on

31.05.2011 at about 6 hrs in the morning, at Mula

Talavadi near Madrasa, where the deceased was

travelling in Rickshaw No.GJ-23-U-1639 of the

ownership of opponent no.1. The opponent no.2 is

driver of rickshaw, who had driven it in rash and

negligent manner, and when they approached Mula

Talavadi near Madrasa, owing to bump on the road,

the rickshaw driver suddenly applied brake;

deceased, who was travelling in the rickshaw as a

passenger sustained injuries on the head and

prior to the treatment she died. The complaint

was registered as I-C.R. No.108/11 at Anand Rurao

Police Station.

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

5. The relevant documents in the form of

FIR, inquest panchnama, report in regard to the

deceased, R.C. Book of the Vehicle, insurance

policy, driving license and the copy of the

charge sheet were produced on record in support

of the affidavit in form of examination in chief

at Exh. 17.

6. Learned advocate Mr. Dwivedi submitted

that it is very strange and disappointing to note

that 40% of negligence has been attributed to the

deceased, who was travelling as a passenger in

the rickshaw. During the course of trial, the

driver, opponent no.2, had examined himself at

Exh.34, who had admitted in the cross examination

that he was driving in speed, and when he saw a

bump near Madrasa, he suddenly applied brakes and

as a result, the deceased sitting as a passenger

was flung out.

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

6.1 Mr. Dwivedi stated that the observation

that the deceased had fallen from the rickshaw

because of her negligence gets nullified from the

evidence of the driver; in spite of that

negligence has been attributed to the deceased

passenger.

7. Advocate Mr. Rathin Raval submitted that

pleading reflects the income of only Rs.3,000/-,

and, thus states that beyond that no grace can be

granted. Advocate Mr. Raval submitted that

negligence aspect is decided on the evidence on

record, and thus submitted that the Tribunal has

rightly considered the deceased, negligent.

8. Perused the evidence of the driver of

rickshaw Mahammod Khan Kalubhai Rathood. He has

admitted in his cross examination of speeding the

rickshaw and applying the brake at the bump near

the Madrasa, and because of that the deceased

sitting in his rickshaw was thrown out of the

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

vehicle who sustained injuries. The learned

Tribunal has grievously erred in attributing

negligence of the deceased, who was as a

passenger in the vehicle. In view of the fact and

evidence on record, on the admission of the

rickshaw driver, 100% negligence is herein

attributed to the driver of rickshaw.

9. Learned advocate Mr. Raval for the

insurance company has agitated about the income,

which has been pleaded. It requires to be noted

that the deceased, was in animal husbandry work

and the pleading was that from that works, she

was earning income of Rs.3,300/- per month. It is

also required to be noted that the deceased as

mother was looking after the family, she is also

entitled to be compensated for the contribution

she makes for the welfare of the family; thus,

even considering her as a housewife along with

the work, stated to be of animal husbandry, this

Court considers that the deceased is required to

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

be justly compensated even for her contribution

in family as a housewife. The standard for

compensating housewife has yet not laid down, nor

any statute appreciates the work of a housewife;

however, Supreme Court in various of judgments

has granted compensation to the housewives; thus,

keeping in view the fact that unskilled labourer,

as per the minimum wages schedule, has also been

granted minimum wages of Rs.4,500/- per month.

This Court taking that standard in view,

considers to assess the income as Rs.4,500/- of

the deceased.

10. In view of the age of the deceased as 34

years at the time of accident, relying on the

judgment of National Insurance Company Ltd. v.

Pranay Sethi and Ors., AIR 2017 SC 5157, 40%

prospective rise is assessed, hence, the monthly

income would come to Rs.6,300/- (Rs.4,500 +

Rs.1,800). Considering the dependents, 1/4th is

deducted, hence, the amount would come to

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

Rs.4,725/- (6,300 - 1,575/-). Thus, yearly loss

would come to Rs.56,700/- (4,725 x 12).

10.1 The multiplier applied would be 16;

hence, the dependency loss would come to

Rs.9,07,200/- (56,700 x 16).

11. The claimants are three minors and

widower husband, as per Magma General Insurance

Company Ltd. Vs. Nanu Ram Alias Chuhru Ram &

Ors., reported in (2018) SCC 130 [2018 ACJ 2782],

the consortium loss to each of the claimants

would be Rs.40,000/-; thus under the head of

consortium loss, the amount would come to

Rs.1,60,000/- (40,000 x 4).

11.1 Under the loss of estate and loss of

funeral expenses, Rs.15,000/- each, under both

the heads are granted.

12. In view of the above, compensation under

NEUTRAL CITATION

C/FA/92/2019 JUDGMENT DATED: 06/12/2023

undefined

different heads would be:

Heads                                                            Amount
Future loss of income                           Rs. 9,07,200/-
Consortium loss                                 Rs. 1,60,000/-
Loss of Estate                                  Rs.         15,000/-
Funeral Expenses                                Rs.         15,000/-
Total                                           Rs.10,97,200/-

13. The Tribunal has granted compensation of

Rs.4,41,168/-. The enhanced amount of

Rs.6,56,032/- [10,97,200 - 4,41,168) be deposited

within eight weeks from the date of receipt of

writ of this order at the rate of 7.5%.

14. Considering that the minor claimants

have turned major, 60% amount be disbursed in

favour of all the claimants in proportion, as

decided by the Tribunal, by Account Payee cheque,

after due verification; the remaining 40% shall

be invested in Fixed Deposit with any

nationalized Bank in the name of the original