Laxmanbhai Shanabhai Rathod vs Gopalbhai Bhagabhai Patanwadia
2023 Latest Caselaw 1949 Guj

     C/FA/4352/2022                                ORDER DATED: 28/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4352 of 2022

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                       LAXMANBHAI SHANABHAI RATHOD
                                   Versus
                      GOPALBHAI BHAGABHAI PATANWADIA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 28/02/2023

                                ORAL ORDER

1. The appellants are the claimants of Motor Accident Claims Petition No.54 of 2018 decided on 9.2.2022 by Motor Accident Claims Tribunal (Aux) Anand. They have challenged the judgment and award primarily contending that the income aspect has not been considered in accordance with the date of the accident, the consumer price index and cost inflation index. It is further stated that consortium money has not been granted to the claimants.

2. The facts of the case suggest that on 15.5.2016 at about 1.30 a.m. deceased Sanjaybhai Laxmanbhai Rathod was travelling in Eicher Tempo No.GJ-23 W-3607 as a Conductor. Opponent no.2 is the owner of said vehicle. When they were heading towards State of Maharashtra from Village-Navli, it is stated that opponent no.1 had driven the Eicher tempo in rash and negligent manner and, at the curve of the road, Eicher

C/FA/4352/2022 ORDER DATED: 28/02/2023

Tempo turned turtle, which led to the vehicular accident in which the deceased sustained grievous fatal injury and he died on the spot.

3. Undisputed fact is that the deceased was conductor of Eicher Tempo. Learned Tribunal has considered the negligence of driver of Eicher Tempo in the said accident. It is contended that the deceased was aged 35 years and was earning Rs.9,000/- by serving as a Conductor on the tempo. To prove the income, the claimant had produced certificate issued by opponent no.2, owner of the vehicle, Ankitkumar Ashokbhai Patel, vide Exh.23. Considering aforesaid certificate, learned Tribunal observed that the deceased Sanjaybhai was serving with opponent no.2 as Conductor cum Labourer and he was given Rs.6,000/- as monthly salary and Rs.150/- per day as allowance. In the cross-examination, it was admitted that income and allowance was paid to the deceased. Inspite of this evidence on record, learned Tribunal had not considered the same and income of the deceased was assessed as Rs.5,000/-.

4. The undisputed fact is that the deceased was Conductor cum Labourer and would be required to receive money as per the minimum wages schedule. As per the prevalent minimum wages schedule in the State at the time of accident, income would be required to be considered as Rs.7,691/-. Considering the age of the deceased and in view of decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 40% rise prospective income is required to be considered. Therefore, the monthly

C/FA/4352/2022 ORDER DATED: 28/02/2023

prospective income of the deceased can be treated to be Rs.10,767/- [Rs.7691 + Rs.3076 (40% increase)]. As per the decision in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, 1/3rd amount is required to be deducted towards personal expenses, as the deceased has three dependents. Therefore, the monthly prospective income would be Rs.7,178/- (Rs.10,767/- - Rs.3,589/-). The claimants had pleaded age of the deceased to be 35 years, inspite of that learned Tribunal, by placing reliance on postmortem note, had considered his age to be 27 years and multiplier of 17 was applied. considering the age of the deceased to be 35 years, multiplier of 16 would be applicable. Therefore, the amount towards loss of dependency would be Rs.7,178x12x 16 = Rs.13,78,178/-.

5. Considering the decision in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130 and considering the fact that there are three dependents of the deceased, each would be entitled to Rs.40,000/- towards consortium money. Accordingly, in total Rs.1,20,000/- is granted towards consortium money. Following the decision in the case of Pranay Sethi (supra), an amount of Rs.15,000/- each is required to be granted under the head of "loss of estate" and "funeral expenses".

6. The claimants would be thus entitled to the following amounts under various head.

        C/FA/4352/2022                              ORDER DATED: 28/02/2023




Dependency loss                                            Rs.13,78,171/-
Consortium                                                   Rs.1,20,000/-
Loss of Estate                                                  Rs.15,000/-
Funeral expenses                                                Rs.15,000/-
Total                                                      Rs.15,28,176/-


7.      Learned         Tribunal   has   awarded   Rs.10,27,068/-            with

interest at the rate of 9% p.a., therefore, the insurance company would be required to pay enhanced compensation of Rs.5,01,108/- with interest at the rate of 7.5% p.a. within a period of six weeks from the date of petition till payment.

8. Accordingly, this First Appeal is partly allowed. The impugned judgment and award dated 9.2.2022 passed in Motor Accident Claims Petition No.54 of 2018 by Motor Accident Claims Tribunal (Aux) Anand is modified accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.

(GITA GOPI,J) R.S. MALEK