Gujarat High Court
Hiraben Wd/O Karsanbhai ... vs Ishmail Abdul Sumra on 11 January, 2023
Bench: Hemant M. Prachchhak
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4759 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
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 ?
=======================================
HIRABEN WD/O KARSANBHAI HADHABHAI VARCHAND
Versus
ISHMAIL ABDUL SUMRA
=======================================
Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 6
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2,5,8
NOTICE UNSERVED for the Defendant(s) No. 4,7
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Page 1 of 11
Downloaded on : Fri Jan 13 20:46:25 IST 2023
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
Date : 11/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. This appeal is filed by the appellants - claimants seeking
enhancement of the compensation amount awarded by the
Motor Accident Claims Tribunal (Aux.7), Anjar - Kachchh
(hereinafter referred to as "the Tribunal") vide impugned
judgment and award dated 05.12.2018 passed in M.A.C.P.
No.305 of 2015.
2. Brief facts of the present case are that on 11.05.2001,
deceased Karsanbhai Hadhabhai Varchand was returning from
Radhanpur to Khengarpar in Armada Jeep bearing registration
No.GJ-24-U-61 and at about 1.00 hours, when the jeep was on
Radhanpur - Santalpur National Highway Near Manpurgam, at
that time a tanker bearing registration No.GJ-01-V-4850 was
going ahead of the jeep and in the meanwhile, a truck bearing
registration No.GQY-4473 came from the opposite direction in
full speed on wrong side dashed with tanker and tanker dragged
towards Radhanpar side and the rear portion of the tanker
dashed with the front portion of the jeep, as a result of which,
the deceased and others sustained serious injuries and the
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
deceased succumbed to the injuries. Hence, the legal heirs of the
deceased i.e. original claimants have filed claim petition before
the Tribunal.
3. The claimants have relied upon the oral as well as
documentary evidence as under:-
Sr.No. Particulars Exhibit
1 Affidavit for oral evidence of Kanyabhai Karsanbhai 45, 48,
2 Affidavit for oral evidence of Bharu Bhachu Chavda 51
3 Affidavit for oral evidence of Hamira Bhura Varchand 51
13 Gram Namuna No.7 and 12 of land bearing survey 65
no.385/2
14 Gram namuna No.7 and 12 of land bearing survey 66
no.347
15 Gram namuna No.7 and 12 of land bearing survey 67
no.1653
16 Gram namuna No.7 and 17 of land bearing survey 68
no.241
17 Gram namuna No.7 and 17 of land bearing survey 69
no.243
18 Gram namuna No.7 and 17 of land bearing survey 70
no.186
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
19 Gram namuna No.7 and 17 of land bearing survey 71
no.180
20 Gram namuna No.7 and 17 of land bearing survey 72
no.239
21 Purchase receipt issued by Radhakrasha Traders 73
22 Sales notes of deceased Karsan Hadhabhai Varchand, 74
Sarpanch, Village: Panchayat, Rapar
23 Sales receipt of Mahendrakumar Chhaganlal and 75
brothers
24 Sales receipt of Mahendrakumar Chhaganlal and 76
brothers
27 Premium Certificate issued by National Insurance 79
Company Limited ( Vehicle bearing registration No.GJ-12-
T-5373)
28 Insurance certificate of the Boring Machine Vehicle 80
bearing registration No.GJ-12-T-5373
29 Notings showing the persons whose work was done 81
during the time of the deceased Karshanbhai and the
bills
31 Certificate of Tax paid of Vehicle No.GJ-12-V-9394 83
32 National Permit of the Truck bearing registration No.GJ- 84
12-V-9394
4. The Tribunal, after evaluating the pleadings and evidence
tendered by the parties, partly allowed the claim petition and
awarded a sum of Rs.6,30,000/- under the different heads.
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
5. 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.
6. Heard Mr.Hemant Shah, learned counsel appearing for the
appellants, Mr.Yogi Gadhia, learned counsel appearing for
respondents No.3 - New India Assurance Company Limited and
Mr.Nagesh Sood, learned counsel appearing for the respondent
No.6 - National Insurance Company Limited.
7. Mr.Shah, 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 erred in considering
the income of the deceased at Rs.4,000/- per month, however,
the Tribunal ought to have considered the income of the
deceased at Rs.10,000/- per month. He has submitted that the
Tribunal erred in granting meager amount of Rs.40,000/- and in
granting Rs.15,000/- towards funeral expenses and Rs.15,000/-
towards loss of estate. He has urged to allow the appeal and
modify the impugned judgment and award.
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
8. As against that Mr.Gadhia, learned counsel appearing for
respondents No.3 and Mr.Sood, learned counsel appearing for
the respondent No.6 have supported the impugned judgment
and award passed by the Tribunal. They have submitted that so
far as the income of the deceased is concerned, there is no
cogent and proper proof or evidence led by the appellants about
the income of the deceased and even the multiplier applied by
the Tribunal is just and proper and, therefore, no interference is
called for.
9. Having heard learned counsel appearing for the parties,
following questions arise in this appeal.
(a) Whether the Tribunal has considered the income of the
deceased in its true and proper spirit or not?
(b) Whether the Tribunal has committed an error while
awarding the loss of consortium to the legal heirs of the
deceased or not?
10. The Tribunal, while considering the documentary evidence,
has committed an error while determining the income of the
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deceased though the evidence produced with regard to the
ownership of boring machine and the truck in the name of the
deceased and the deceased has having agriculture land in the
joint ownership. So far as the consortium is concerned, it appears
that the Tribunal has committed an error in granting loss of
consortium and so far as the remaining appellants is concerned,
the appellants no.2 and 3 are entitled to loss of consortium at
Rs.40,000/- each.
11. We have considered the averments made in the appeal,
submissions made by the learned counsel appearing for both the
sides and considered the facts of the case and perused the
record and proceedings. From the record, it appears that the
Tribunal has awarded only Rs.40,000/- under the head of loss of
consortium while deciding the claim petition, however, as per the
ratio laid down by the Hon'ble Supreme Court in the case of
Satindar Kaur alias Satwinder Kaur and others reported in
AIR 2020 SC 3076, Magma General Insurance Company
Limited Vs. Nanuram alias Chuhru Ram and others
reported in (2018) 18 SCC 130 and New India Assurance
Company Limited Vs. Smt. Somwati and other reported in
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
(2020) 9 SCC 644, the consortium is required to be considered
under three categories while awarding the amount of
compensation and, therefore, the appellants no.2 and 3 are also
entitled to loss of consortium.
12. As per the decision of the Hon'ble Supreme Court in the
case of Khenyei Vs. New India Assurance Company Limited
reported in (2015) 9 SCC 273, the appellants can recover the
amount of compensation from either of the Insurance Company
as there is joint liability of the Insurance Company. It appears
that 20% liability caste upon respondent no.3 and 80% liability
caste upon respondent no.6. In the present case, the multiple
vehicles involved in the accident and, therefore, they are jointly
and severally liable to pay compensation. So, the claimants can
recover the additional amount of compensation from any of the
joint tortfeasor.
13. 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 National Insurance Company Limited Vs.
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
Pranay Sethi and others reported in (2017) 16 SCC 680, we
are of the considered opinion that the appellants are entitled to
get additional amount of compensation considering the income
of the original claimant (deceased) at Rs.8,000/- plus 25% rise
and 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:-
Rs.8,000/- income per month x 25% rise = Rs.10,000/- x Rs.11,20,000.00
12 = Rs.1,20,000/- x 14 multiplier = Rs.16,80,000/- -
Rs.5,60,000/- (Rs.16,80,000/- x 1/3 deduction)
Funeral expenses Rs.15,000.00
Loss of estate Rs.15,000.00
Loss of consortium (Rs.40,000/- x 3) Rs.1,20,000.00
Total amount Rs.12,70,000.00
Less: Compensation awarded by the Tribunal Rs.6,30,000.00
Additional amount Rs.6,40,000.00
Accordingly a sum of Rs.6,40,000/- as additional
compensation requires to be awarded towards future loss of
income, which is just and reasonable compensation and the
same is awarded in addition to Rs.6,30,000/- awarded by the
Tribunal. However, the appellants are entitled to the enhanced
amount of compensation of Rs.6,40,000/- along with interest at
C/FA/4759/2019 JUDGMENT DATED: 11/01/2023
the rate of 6% from the date of application till its realization. We
answered accordingly.
14. For the foregoing reasons, the appeal is allowed in part.
The judgment and award dated 05.12.2018 passed by the Motor
Accident Claims Tribunal is hereby modified and in addition to
what has been awarded by the Tribunal, a sum of Rs.6,40,000/-
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
its realization. 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. 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. 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. The
apportionment and order for disbursement as made by the
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Tribunal in the operative portion of the order shall hold good. It is
opined that as per the decision of the Hon'ble Supreme Court in
the case of Khenyei (supra), the claimants can recover the
additional amount from either of the insurance company.
Record and proceedings be sent back to the concerned
Tribunal forthwith. Pending civil applications, if any, shall stand
disposed of accordingly.
(VIPUL M. PANCHOLI, J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
