Ulasba Alias Hullasba Gulabsinh ... vs Ranchhod Jivram Pokar
2023 Latest Caselaw 1566 Guj

      C/FA/1189/2020                                       ORDER DATED: 15/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1189 of 2020
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  ULASBA ALIAS HULLASBA GULABSINH ALIAS GULABSANG SODHA
                         (SINDHAL)
                           Versus
                  RANCHHOD JIVRAM POKAR
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4,5,6,7
MR PATHIK M ACHARYA(3520) for the Defendant(s) No. 1,2,4
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 5
RULE NOT RECD BACK for the Defendant(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                  Date : 15/02/2023
                                   ORAL ORDER

1. The present first appeal is filed impugning judgment and order dated 15.01.2019 passed in MACP No.594 of 2010 by the Motor Accident Claims Tribunal (Aux), Kachchh, Bhuj, whereby the Tribunal has awarded compensation of Rs.19,42,000/- along with interest @ 9% per annum from the date of claim till the amount is deposited in the Tribunal.

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

2.1 On 17.01.2010, the deceased Gulabsang Sodha was returning after completion of his duty in Tata Power Plant. He was working as a Rigger. He was returning on motorcycle No.GJ-12-AR-3731

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along with one Bharubha Lakhaji Jadeja, who the pillion rider. He was driving the motorcycle on the left side of road with moderate and controllable speed. That a tractor trailor being driven in rash and negligent manner came from opposite side and though the deceased tried to avoid the accident, the tractor - trailor collided with the motorcycle. Due to accident, deceased suffered serious injuries and succumbed to the said injuries.

2.2 Aggrieved the appellants herein filed claim petition i.e. MACP No.594 of 2010 under Section 166 of Motor Vehicle Act, 1988, for compensation of Rs.50,00,000/-. Summons came to be issued by the learned Tribunal. The respondent appeared and contested the claim. Evidence came to be led by the parties in support of their contentions. After examining the evidence on record and taking into consideration the contentions raised by the parties, learned Tribunal awarded compensation of Rs.19,42,000/- along with 9% interest. Aggrieved the appellants have preferred present first appeal.

3. Learned counsel Mr.Hemal Shah for the appellants has contended that the learned Tribunal has erred in assessing income of the deceased. He submits that the petitioner was working as a Rigger with Korean Company and was

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earning Rs.8,741/- per month. He submits that in addition, the deceased was holding agricultural land to the extent of 9 acre and 19 gunthas wherein he was growing "castor", "green gram" and "ground nut" crops. He submits that these were cash crops. In support thereof the appellants had produced bills of sale of such crops to the private trader which show that the deceased was also having agricultural income to the extent of Rs.2 to 2.5 lacs per year. He submits that in support of such income, the appellants have also produced land revenue records to show the land holding of the deceased and description of crops sown on his agricultural land. He submits that learned Tribunal has not taken into consideration at all the said factum to assess the agricultural income of the deceased while calculating the monthly income of the deceased. He submits that learned Tribunal has therefore fallen in error. He further submits that the second error which has occurred is with respect to the award of the amount towards consortium. He submits that there are six dependents of the deceased, however, only Rs.40,000/- was granted towards loss of consortium. He submits that in view of the law laid down in the case of Pranay Sethi each of the dependent is entitled to loss of consortium to the extent of Rs.40,000/-. He, therefore, submits that total consortium which ought to have been awarded as per the said judgment should have been

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Rs.2,40,000/-. However, learned Tribunal has only granted Rs.40,000/-. He, therefore, submits that even on that count that the total compensation needs to be enhanced.

4. Per contra, learned advocate Ms.Kirti Pathak for insurance company submits that learned Tribunal has rightly calculated income of the deceased relying upon payslip produced on record issued by the company for which the deceased was working at the time of accident. She submits that there is no dispute with respect to said income. She further submits that though the appellants have produced land records and bills of sale with respect to the agricultural produce, the said bills have not been proved through the evidence of the person who has issued the same. She submits that the oral evidence of the trader examined by the appellants does not inspire confidence with respect to issuance of such receipt towards the produce. She submits that the said witness has admitted in the cross- examination by he has since retired from business. She submits that the witness has further stated that the deceased used to sell the produce to three / four more persons other than him. She submits that the said witness is not aware of any details with respect to the agricultural activities of the deceased. She further submits that the said bills have rightly

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not been taken into consideration for assessing income as the said bills are not proved. She submits that the income as assessed by the learned Tribunal is based on payslips and therefore, the same may not be interfered with. She submits that learned Tribunal has awarded just and proper compensation. She submits that the present first appeal be dismissed.

5. Heard learned counsel for the respective parties and perused the evidence on record as well as records and proceedings in the present case.

6. At the outset, it is noted that the amount awarded towards loss of consortium is not in accordance with law laid down by the Honourable Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram Alias Chura Ram. The said legal position is not disputed by the learned advocate for the insurance company. In view thereof, this Court holds that each of the 6 dependents of the deceased are entitled to Rs.40,000/- towards the loss of consortium. Therefore, the amount awarded by the learned Tribunal towards consortium is enhanced to Rs.2,40,000/-. The claimants are entitled to additional amount of Rs.2 Lacs towards loss of consortium.

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7. In respect of assessment of agricultural income of the deceased, a perusal of record shows that the appellants have produced on record 7/12 extract as well as the Village Form 8A showing the land holding of the deceased. As per the said revenue record, the deceased was holding land to the extent total of 3 hectares - 33 acres - 87 Sq.mtrs (9 acres and 19 gunthas approximately). The revenue record shows two parcels of land. The land records show that "castor crop", "green gram" was shown in the Kharif season and "mustard" in the Rabi season.

8. However, nothing has been brought on record with respect to crop yield obtained from such agricultural activities. Further, the oral evidence in support of bills does not inspire confidence and does not prove the bills brought on record as having being issued towards the agricultural produce grown by the deceased. Further, no evidence is there to show that such agricultural activity was undertaken by deceased every year. In view thereof no income can be assessed from agricultural activities of the deceased.

9. Learned counsel Mr.Hemal Shah has further argued that the oral evidence has also been brought on record with respect to future income which could have been earned by the

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deceased by examining his colleagues who were working with him in the said company. On examining the oral evidence of these two witnesses, it is revealed that the company in which the deceased was working has closed down. Thereafter, the said two witnesses have joined a new company. It is well settled law that loss towards future income has to be calculated according to the present income of the deceased and by multiplying the age factor. Therefore, the said evidence cannot be taken into account to assess the future income of the deceased as it will be brought with ambiguity.

10. In view of the aforesaid observations, this Court is of the opinion that the claimants are entitled to additional compensation of Rs.2 Lacs towards loss of consortium along with 6% interest from the date of filing of the claim petition till the depositing of the said amount before the learned Tribunal. The impugned judgment and award with respect to the award of compensation and the interest awarded thereon is confirmed to that extent. The first appeal stands partially allowed accordingly. Additional amount of compensation along with interest @ 6% shall be deposited with the learned Tribunal within a period of four weeks from the date of receipt of this order. Upon depositing the said additional compensation along with interest, learned

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Tribunal may disburse the total amount of compensation along with interest accrued thereon within a period of two weeks thereafter following due procedure and upon proper verification.

11. Accordingly, the first appeal stands disposed of. R & P of the first appeal be remitted to the concerned Tribunal immediately.

(ANIRUDDHA P. MAYEE, J.) NABILA