Gujarat High Court

Jarinaben Widow Of Shabbirbhai ... vs Dipakbhai Vakalabhai Shukla on 8 February, 2023

Bench: Aniruddha P. Mayee

     C/FA/2837/2021                              JUDGMENT DATED: 08/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2837 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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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 ?

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                 JARINABEN WIDOW OF SHABBIRBHAI MALEK
                                 Versus
                      DIPAKBHAI VAKALABHAI SHUKLA
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Appearance:
MR DHRUV K DAVE(6928) for the Appellant(s) No. 1,2,3,4
DELETED for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 08/02/2023
                             ORAL JUDGMENT

1. This First Appeal is preferred by the appellants against

the impugned judgment and award dated 26.03.2019

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

passed in Motor Accident Claims Petition No.1317 of 2012

by the Motor Accident Claims Tribunal, Vadodara whereby

the learned Tribunal has awarded the compensation of

Rs.8,01,250/- along with interest @ 9% per annum.

2. The factual matrix in the present appeal is as follows:

2.1 The deceased -Shabbirbhai Vajirbhai Malek was riding

motorcycle bearing Registration No.GJ-6-DF-2237 and going

from Village Ranu to Village Sadhi on 16.09.2012. The

deceased was driving his motorcycle on the correct side of

the road. When he reached on the road proceeding towards

Village Ranu, he came to be knocked down by Eicher Tempo

which was being driven in rash and negligent manner. As a

result, the deceased received grievous injuries on his head

and died on the spot.

2.2 An offence also came to be registered at the Padra

Police Station vide I-CR No.181 of 2012 against the driver of

the Eicher Tempo. At the time of death, the deceased was

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

aged about 47 years and he was hale and healthy person.

The deceased was mainly engaged in the business of

milching and animal husbandry.

2.3 Aggrieved the appellants preferred the claim petition

under Section 166 of the Motor Vehicles Act, 1988 for the

compensation of Rs.25,00,000/-. The learned Tribunal was

pleased to issue summons to the respondents. The parties

appeared and led evidence in support of their case. After

assessing the evidence on record, the learned Tribunal was

pleased to award a compensation of Rs.8,01,250/- along

with interest @ 9% per annum.

2.4 Aggrieved the appellants have preferred this appeal.

3. Mr. Dhruv K. Dave, learned advocate appearing for the

appellants submits that the appellants have brought the

cogent evidence on record to show that the deceased was in

the business of milching and animal husbandry. He was

given a certificate by the State Government for high yield of

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

milk production per day. He was also known doctor in the

area around his residence in respect of milch animals. The

deceased was also engaged in the business of producing and

selling milch animals. It was, therefore, claimed that out of

these activities, the combined annual income of the

deceased was Rs.2,50,000/- annually. He submits that the

appellants had produced on record the certificate of The

Sadhi Doodh Udpadak Sahakari Mandali Limited (for short,

"Mandali") whereby the family of the deceased had sold

milk worth Rs.2,05,163/- to the Mandali from 01.04.2012

to 31.03.2013.

4. It is submitted that the official of the Mandali has also

deposed by way of oral evidence in support of the said

income Certificate from the Mandali. It is submitted by the

learned advocate for the appellants that the said Certificate

ought to have been taken in to account while assessing the

income of the deceased. However, the learned Tribunal has

erred in not taking the same into account and rejecting the

same. He submits that even the passbook of the deceased

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

was filed on record by way of evidence which shows that in

the year 2011, the cumulative amount deposited in the

savings account of the deceased was Rs.60,000/-.

Therefore, he submits that the appellants have cogently

proved that the income of the deceased was Rs.2,50,000/-

annually. He submits that the learned Tribunal has wrongly

calculated the monthly income of the deceased, and

therefore, has committed an error in computing the just and

proper compensation in the present case. He further

submits that learned Tribunal has erred in awarding just

and proper compensation and the First Appeal be allowed.

5. Per contra, Ms. Kirti Pathak, learned advocate

appearing for respondent No.3 -Insurance Company

vehemently opposes the appeal and submits that no cogent

evidence has been brought on record with respect to the

monthly and annual income of the deceased. She submits

that the Certificate issued by the Mandali cannot be relied

upon as the same is issued in March, 2017 much later in

time after the death of the deceased. She submits that the

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

said Certificate has a lot of discrepancies and the learned

Tribunal has rightly ignored the same.

6. She further submits that though the the averments are

made with respect to the business of the deceased in

respect of buying and selling of milch animals as well as

rendering services as a doctor for milch animals, nothing

has been brought on record to show any income from such

activities. In absence of the same, she submits that the

assessment of the monthly income of the deceased as

arrived at by the learned Tribunal is just and proper and

that no interference is called for in the said amount. She

submits that the learned Tribunal has rightly calculated the

just and proper compensation in the present case, and

therefore, the First Appeal be dismissed with costs.

7. Heard the learned counsel for the parties and perused

the documents on record as well as the Record &

Proceedings of the case.

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

8. In respect of the assessment of the income of the

deceased, the appellants have produced on record the

passbook of the savings Bank account of the deceased and

the Certificate issued by the Mandali in the name of

Shabnamben Saddambhai Malek. A perusal of the oral

evidence of witness No.2 examined on behalf of the

appellants, Mr.Arvindbhai Prajapati reveals that he is

working as a clerk in the said Mandali. He has produced the

said statement of the payments made to Shabnamben

Saddambhai Malek for various years. However, in the cross-

examination, he has stated that there was no Resolution by

the Mandali authorizing him to prepare such statement and

neither he was officially authorized to give any deposition in

the present case. Further, he admits that the certificate is

not signed by the President of the Mandali. He has also not

submitted any bills in support of the statement which he

has produced on record.

9. In view of the these discrepancies, the learned Tribunal

has rightly ignored the said Certificate with respect to the

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

income of the deceased and the same could not have been

relied upon to assess the income of the deceased. Further,

with respect to the Bank Statements of the Saving Account

of the deceased produced on the record, it is revealed that

there are some deposits, however, the same cannot be said

to be in nature of any income and neither the same can be

relied upon by way of any specific nature of income as

received by the deceased from any particular activity which

he was allegedly doing. There are random amounts

deposited in the bank account and perusal of the said Bank

statement does not reveal whether the said deposits can be

considered as income of the deceased or not. In the absence

of any cogent reliable evidence on record with respect to the

income of the deceased, the learned Tribunal has assessed

the income of the deceased at Rs.5,000/- per month and

60,000/- annually. Even if we go by the minimum wages

as prescribed by the Assistant Labour Commissioner

Government of Gujarat for the relevant period, the monthly

wages for a skilled worker would be Rs.4,980/-.

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

10. In view thereof, it can be safely assumed that the

monthly income of the deceased was Rs.5,000/- per month.

No error can be stated to have been committed by the

learned Tribunal while assessing the monthly income of the

deceased. Therefore, the monthly income as assessed by the

Tribunal needs no interference.

11. Computing the compensation on the basis of the

monthly income as assessed, the appellants are entitled to a

compensation of Rs.7,31,250/- towards future loss of

income. The learned Tribunal has awarded Rs.15,000/-

towards funeral expenses and Rs.15,000/- towards loss of

estate. It has also awarded Rs.40,000/- towards loss of

consortium. However, in view of the judgment rendered in

the case of Magma Gneral Insurance Co. Ltd. Vs. Nanu

Ram, reported in (2018) 18 SCC 130, the appellants are

entitled to Rs.1,60,000/- (Rs.40,000X4) towards loss of

consortium. The learned Tribunal has awarded Rs.40,000/-

towards the same.

C/FA/2837/2021 JUDGMENT DATED: 08/02/2023

12. This Court is of the opinion that the appellants are

entitled to the following compensation which is modified

accordingly:

Sr.No. Head                                           Amount
   A        Towards future loss of income             Rs.7,31.250/-
  B         Towards loss of estate                    Rs.15,000/-
  C         Towards funeral expenses                  Rs.15,000/-
  D         Towards loss of consortium                Rs.1,60,000/-
            Total                                     Rs.9,21,250/-

12. Therefore, this Court is of the opinion that the just and

proper compensation in the present case is Rs.9,21,250/-.

The amount of compensation as awarded by learned

Tribunal along with interest is confirmed. The appellant is

entitled for an additional compensation of Rs.1,20,000/-

along with 6% interest per annum from the date of filing of

the claim petition till its realization. The respondent No.3 is

directed to deposit the additional amount of compensation

along with interest @ 6% per annum within a period of six

weeks from the date of receipt of the order of this Court.

Upon depositing of such additional compensation, the

learned Tribunal is directed to release the entire amount of