Gujarat High Court
Yuvrajsinh Bhaktubha Sarvaiya vs Arvindsinh Popatbhai Galthariya on 6 January, 2023
Bench: Hemant M. Prachchhak
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2824 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YUVRAJSINH BHAKTUBHA SARVAIYA
Versus
ARVINDSINH POPATBHAI GALTHARIYA
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 4
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/01/2023
ORAL JUDGMENT
1. The present Appeal is filed by the appellants - original
claimants seeking enhancement of the compensation amount
awarded by the Motor Accident Claims Tribunal (Auxi.),
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
Bhavnagar at Mahuva (hereinafter referred to as "the
Tribunal") vide impugned judgment and award dated
30.01.2020 passed in M.A.C.P. No.22 of 2018, whereby the
Tribunal has partly allowed the claim petition and awarded a
sum of Rs.3,32,591/-.
2. Brief facts of the present case are that, on 28.12.2017,
deceased was going from Talaja to village Kamrol as a pillion
rider on motorcycle bearing registration No.GJ-4-AN-1119.
When they reached near village Kamrol, at that time,
respondent No.1 came by driving his motorcycle bearing
registration No.GJ-4-CL-9147 on wrong side and in rash and
negligent manner and dashed with the motorcycle on which
the deceased was travelling as pillion rider. Due to the said
accident, the deceased fell down on the road and sustained
serious injuries, which resulted into death. Hence, the
appellants - original claimants have filed M.A.C.P. No.22 of
2018 before the Tribunal. The Tribunal, after evaluating the
pleadings and evidence tendered by the parties, partly
allowed the claim petition and awarded a sum of Rs.3,32,591/-
under different heads as against the claim of Rs.25,00,000/-.
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
3. It came to be held by the Tribunal that said amount was
ordered to be awarded to the deponents. Not being satisfied
with the compensation amount, this appeal has been filed.
4. Heard Mr.Hiren Modi, the learned counsel appearing for
the appellants, Mr.Alkesh Shah, the learned counsel appearing
for respondent No.2 - IFFCO Tokiyo General Insurance Co. Ltd.
and Mr.Chirayu Mehta, the learned counsel appearing for
respondent No.4 - ICICI Lombard General Insurance Company.
5. Mr.Modi, the learned counsel appearing for the appellants
has submitted the same facts which are narrated in the memo
of appeal. He has submitted that the Tribunal has not properly
appreciated the income of the deceased while determining the
quantum. He further submitted that the Tribunal has
committed an error by not properly appreciating the evidence
which is submitted before the Tribunal. He also submitted that
Tribunal has not awarded just and adequate compensation. He
submitted that the Tribunal has committed a error while not
awarding any amount towards mental pain and agony faced by
the parents of the deceased while he was under treatment. He
has also submitted that the Tribunal has not awarded
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
adequate amount under the head of consortium and loss of
estate and funeral expenses in accordance with the settled
principles of law. He further submitted that at the time of
accident, the lower court has failed to consider prospective
income and adverse effect on the said prospective income and
hence, the Tribunal has committed an error on all other
grounds raised in the memo of appeal and has sought
modification of the impugned judgment and award and
enhancement of the compensation awarded by the Tribunal.
6. As against that Mr.Shah, the learned counsel appearing
for respondent No.2 and Mr.Mehta, the learned counsel
appearing for respondent No.4 - respective Insurance
Companies have supported the impugned judgment and award
passed by the Tribunal and submitted that the Tribunal has not
committed any error while passing the impugned award and,
therefore, no interference is called for. They also submitted
that the Tribunal has rightly calculated the income of the
deceased and awarded the amount, and hence, the present
appeal may be dismissed.
7. Having considered the averments made in the appeal,
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
submissions made by the learned counsel appearing for both
the sides and considered the facts of the case and perused the
record and proceedings. Considering the fact that the
deceased was the only son of the appellants - original
claimants and was studying in 3 rd year of his graduation and
after completion of his graduation, the deceased could have
joined his father's business and therefore, considering all these
aspects, the present appeal deserves to be allowed in part and
the impugned judgment and award passed by the Tribunal is
required to be modified to the extent.
8. Considering the ratio laid down by the Hon'ble Supreme
Court in the case of Sarla Verma and others Vs. Delhi
Transport Corporation and another, reported in [2009]
6 SCC 121 and in case of National Insurance Company
Limited Vs. Pranay Sethi and others, reported in [2017]
16 SCC 680, the compensation is to be awarded just and
adequate and for that the principles enumerated in the said
judgments is required to be born in mind at the time of
determining the amount of compensation. So far as the
consortium is concerned, considering the decision of the Apex
Court in case of Magma General Insurance Company Limited
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
Vs. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC
130, New India Assurance Co. Ltd. Vs. Smt. Somwati and
others, (2020) 9 SCC 644 and United India Insurance
Company Limited Vs. Satinder Kaur alias Satwinder
Kaur and others, AIR 2020 SC 3076, the appellants are also
entitled to receive the amount under the head of consortium.
Hence, considering all the above aspects and after going
through the record and proceedings, the appeal requires to be
allowed and the impugned judgment and award requires to be
substituted by enhancing the amount of compensation and,
therefore, the compensation is enhanced under the following
heads:-
Particulars Amount
Future Loss of Income Rs.11,34,000/-
(Rs.7500/- + Rs.3000/- = Rs.10,500/- -
Rs.5250/- = Rs.5250/- x 12 x 18)
Loss of Consortium Rs.80,000/-
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Medical expenses Rs.50,591/-
Total Rs.12,94,591/-
Compensation awarded (-)Rs.3,32,591/-
Amount to be enhanced Rs.9,62,000/-
8.1 Accordingly a sum of Rs.9,62,000/- as additional
compensation requires to be awarded towards future loss of
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
income, which is just and reasonable compensation and the
same is awarded in addition to Rs.3,32,591/- awarded by the
Tribunal. However, the appellants are entitled to the enhanced
amount of compensation of Rs.9,62,000/- along with interest
at the rate of 6% from the date of application till realization of
the amount.
8.2 At this stage, it would be appropriate to refer to the
decision of the Apex Court in the case of Khenyei Vs. New
India Assurance Company Limited reported in (2015) 9
SCC 273, wherein, the Hon'ble Supreme Court has held and
observed that there is determination of inter se liability of
composite negligence of both the vehicles involved in the
accident, since the Tribunal has fasten the liability on both the
Insurance Companies being 50%. Therefore, the appellants -
original claimants can recover the amount of compensation
from either of the Insurance Companies being a joint tortfeasor
as enunciated by the Apex Court. Therefore, I am of the
opinion that both the Insurance Companies have to deposit the
enhanced amount of compensation as per the apportionment
made by the learned Tribunal in its award, or either of the
Insurance Company can deposit the entire enhanced amount
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
and can recover from the other Insurance Company.
9. For the foregoing reasons, the following order is passed:-
(i) Appeal is allowed in part.
(ii) Judgment and award dated 30.01.2020 passed by the
Motor Accident Claims Tribunal (Auxi.), Bhavnagar at
Mahuva, in M.A.C.P. No.22 of 2018 is hereby modified
and in addition to what has been awarded by the
Tribunal, a sum of Rs.9,62,000/- as additional amount
with interest at the rate of 6% per annum is awarded,
which shall be from the date of filing claim petition till
date of its realization.
(iii) Both the Insurance Companies are directed to
deposit additional amount of compensation with 6%
interest as early as possible within an outer limit of eight
weeks from the date of receipt of certified copy of this
order.
(iv) The apportionment and order for disbursement as
C/FA/2824/2021 JUDGMENT DATED: 06/01/2023
made by the Tribunal in the operative portion of the order
shall hold good for the additional amount of
compensation.
(v) After deposit of the additional amount of
compensation, the same shall be disbursed in favour of
the claimants through RTGS, after proper verification.
The bank account details shall be furnished by the
learned advocate for the claimants to the Nazir
Department of the Court concerned.
(vi) The appellants are directed to pay deficit court fees,
if any, on the enhanced amount within one month from
the date of receipt of certified copy of this order.
10. Record and proceedings be sent back to the
concerned Tribunal forthwith. Pending civil applications, if any,
shall stand disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
Dolly
