Gujarat High Court

Sangada Rajeshbhai Kanjibhai vs Saburbhai Narsingbhai Pasaya on 16 February, 2023

Bench: Gita Gopi

     C/FA/2367/2022                               JUDGMENT DATED: 16/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2367 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                      SANGADA RAJESHBHAI KANJIBHAI
                                 Versus
                      SABURBHAI NARSINGBHAI PASAYA
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Appearance:
MS DB ZALA for MR A A ZABUAWALA(6823) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 16/02/2023

                             ORAL JUDGMENT

1. ADMIT. Mr. Palak Thakkar, learned advocate

waives service of notice of admission on

behalf of respondent no.3.

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

2. The facts of the case suggest that on

16.7.2011 at about 01:00 p.m., the deceased

and the minor daughter were traveling in a

rickshaw bearing registration no. GJ-17 U-

4553. The rickshaw was driven in a rash and

negligent manner by opponent no.1, as a

result of which, the deceased was thrown out

of the said rickshaw and was struck down on

the road and hence, sustained serious

injuries. It is stated that she was admitted

in the Samir Hospital, Dahod, where she

succumbed to the injuries during treatment.

3. Ms. D.B. Zala, learned advocate for Mr.

Zabuawala, learned advocate for the

appellants submits that the challenge is

given to the judgment and award dated

6.1.2016 passed in MACP no.422 of 2011

primarily with a prayer to enhance the award

amount.

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

4. Ms. Zala submits that the Tribunal has not

considered the age of the appellant in

accordance with evidence and has committed

grave error in assessing the income of the

deceased who was doing agriculture work and

stated that the amount under the head of

pain, shock and suffering and transportation

expenses is on lower side and further

submits that the learned Tribunal has very

grievously erred in considering 20%

negligence of the deceased lady who was

traveling in a rickshaw. Ms. Zala submits

that the learned Tribunal has considered

contributory negligence of the passenger of

the rickshaw observing that the deceased was

required to sit properly while traveling in

a rickshaw. Ms. Zala submits that the

learned Tribunal has not even considered the

future prospects income of the deceased when

her age was considered as 40 and was doing

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

agriculture activities and earning from

dairy business.

5. While countering the arguments, Mr. Palak

Thakkar, learned advocate for the insurance

Company submits that the learned Tribunal

has considered the income factor in

accordance with the evidence on record while

the amount under the pain, shock and

suffering and transportation charges has

been granted without any evidence. Mr.

Thakkar submits that no certificate has been

produced to show monthly income and thus,

submits that there would not be any

requirement to interfere with the judgment

and award passed by the Tribunal.

6. The claimants have stated that the deceased

was earning income from agriculture work and

was also earning from dairy business. They

had urged monthly income as Rs.8,500/-.

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

However, the learned Tribunal has observed

that the certificate with regard to income

has not been produced. The appellants-

claimants have also disputed the age.

However, no cogent evidence was produced by

way of birth certificate or other public

document to know the age of the deceased.

The learned Tribunal has relied upon the

postmortem report, which reflects the age as

40. This Court also considered the same as

reliable evidence to consider the age of the

deceased as 40. The accident took place in

the year 2011. Considering the date of

accident as 16.7.2011, the skilled person

would be entitled to receive Rs.4,980/-.

This Court, thus, deems fit to consider the

claimant as housewife as well as the skilled

labourer and therefore, Rs.5,000/- is

required to be considered as monthly income.

The age of the deceased, being considered as

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

40, she would be entitled for 25% rise in

income. There are 4 dependents of the

deceased and hence, there would be one-

fourth deduction as personal expenses of the

deceased. Thus, the monthly income would be

considered as Rs.4,688/-. The calculation

would be as under:-

Rs.5,000/- Income per month + Rs.1,250/- 25% rise in income = Rs.6,250/- Income per month

- Rs.1,562/- One-fourth towards personal expenses = Rs.4,688/- Income per month

7. Considering the annual loss, applying

multiplier of 15, since the deceased would

fall under the age group of 36-40, the

future dependency loss would be

Rs.8,43,840/- (Rs.4,688/- X 12 X 15).

8. The learned Tribunal has failed to consider

that the deceased had left behind her 3

minor children and husband.

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

9. In the case of Magma General Insurance

Company Limited Vs. Nanu Ram alias Chuhru

Ram & Ors., reported in (2018) 18 SCC 130,

it has been observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection,

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

10. The Hon'ble Apex Court has considered the

fact of consortium amount to be granted to

the dependents on account of loss of family

members. Thus, under the head of consortium

money, the applicants would be entitled to

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

the judgment in the case of National

Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) 16 SCC 680, under

the head of funeral expenses, amount of

Rs.15,000/- is granted and under the head of

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

loss to estate, amount of Rs.15,000/- is

granted. The postmortem report at Exh.27 is

of 18.7.2011, while the accident had

occurred on 16.7.2011. Thus, taking into

consideration the days of hospitalization,

the amount granted under the head of pain,

shock and suffering and transportation

requires no interference of this Court.

11. The Tribunal has granted the amount as

under:-

Rs.3,60,000/- Future dependency + Rs.7,500/- Pain, shock and suffering + Rs.7,500/- Funeral expenses + Rs.2,500/- Transportation charges = Rs.3,77,500/- Total

12. The claimants now would be entitled to

receive the amount as under:-

Rs.8,43,840/- Future loss of dependency + Rs.1,60,000/- Consortium amount + Rs.7,500/- Pain, shock and suffering

C/FA/2367/2022 JUDGMENT DATED: 16/02/2023

+ Rs.2,500/- Transportation charges + Rs.15,000/- Funeral expenses + Rs.15,000/- Loss of estate = Rs.10,43,840/- Total compensation

13. The claimants had restricted their claim for

compensation at Rs.9,40,000/-. However, they

are entitled to receive Rs.10,43,840/-. The

learned Tribunal has granted the amount of

Rs.3,02,000/- with interest at the rate of

7.5% per annum, which the insurance Company

would have to deposit. Hence, the applicants

are entitled to enhanced amount of

Rs.7,41,840/- with interest at the rate of

7.5% per annum. Further, Court fee stamp

appears to have been paid only on restricted

amount of Rs.9,40,000/-. Since the