Rathod Jhilaba Jawanji vs Rohitkumar Baldevji Rathod
2023 Latest Caselaw 290 Guj

     C/FA/4268/2018                               JUDGMENT DATED: 11/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                      R/FIRST APPEAL NO. 4268 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE                                      Sd/-
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1    Whether Reporters of Local Papers may be allowed                    NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                             NO

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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                        RATHOD JHILABA JAWANJI
                                Versus
                      ROHITKUMAR BALDEVJI RATHOD
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Appearance:
MR YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 11/01/2023

                             ORAL JUDGMENT

1. The present Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and award dated 3 rd May 2018 passed by the Motor Accident Claims Tribunal (Aux.),

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Mehsana, in the Motor Accident Claim Petition No.170 of 2007, whereby the Tribunal was pleased to partly allow the claim petition.

2. By way of present Appeal, the appellants, widow and two sons of the deceased who received grievous injuries in a vehicular accident which took place on 20 th September 2006 and who later succumbed on 31st March 2007, seek enhancement of the compensation amount under different heads for the death of the deceased. The Tribunal has awarded compensation to the tune of ₹3,30,853/- under different heads considering the3,30,853/- under different heads considering the grievous and fatal injuries sustained by the deceased as a result of which the deceased succumbed.

3. That on appreciation of the evidence on record, the Tribunal has held that at the time of the accident, the deceased was also driving a motorcycle and, therefore, he was equally responsible for the accident. The Tribunal has considered 50% negligence on the part of the deceased for the accident. That for the purpose of calculating future loss of income, the Tribunal has considered the income of the deceased at ₹3,30,853/- under different heads considering the3,500/- per month and after considering 10% towards future prospects, the Tribunal has assessed the same at ₹3,30,853/- under different heads considering the3,850/- per month and ₹3,30,853/- under different heads considering the46,200/-p.a. That thereafter, after deducting one-third towards the personal expenditure of the deceased, the Tribunal has considered the same at ₹3,30,853/- under different heads considering the30,800/- per annum and applying the multiplier of 13, the Tribunal has awarded ₹3,30,853/- under different heads considering the4,00,450/- towards the future loss of income. The Tribunal has further awarded a sum of ₹3,30,853/- under different heads considering the15,000/- towards the loss of estate and ₹3,30,853/- under different heads considering the15,000/-

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towards the funeral expenses as well as ₹3,30,853/- under different heads considering the40,000/- towards the loss of consortium.

4. According to the learned advocate for the appellants- claimants, the only argument that was offered is with regard to the negligence. It is submitted that the Tribunal has committed an error in considering the negligence to the extent of 50%. According to the learned advocate, there was no evidence for the Tribunal to arrive at such a conclusion. Learned advocate for the appellants-claimants submitted that the witness, who was a pillion rider of the offending vehicle Motorcycle bearing registration No.GJ-2-AA-7172, was examined as a witness only qua his own claim being M.A.C.P. No.3 of 2008, whereas no witness with regard to the negligence was examined though the driver of the Motorcycle bearing registration No.GJ-2-AA-7172 was a party opponent and, therefore, the Tribunal had no occasion to consider negligence at 50% of both the vehicles.

5. As against this, learned advocate appearing for the Insurance Company has immediately drawn attention of this Court to what has been recorded pursuant to Exh.28, where the claims were consolidated and evidence was led jointly and, therefore, when the issue with regard to negligence was based on the evidence of an eye-witness, non-examination of driver of the offending vehicle would be of no consequence and, therefore, the Tribunal is justified in holding, by considering Exhibits 28, 32 and 33 as well as the evidence of the eye-witness who is an injured eye-witness, to the extent that the vehicle was being

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driven by the deceased in a rash and negligent manner, wherein the accident took place by way of a head-on collision. Hence, to the extent of finding given by the Tribunal regarding negligence being 50% each is not to be disturbed.

7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that while awarding future loss of income, the Tribunal has assessed the income of the deceased at ₹3,30,853/- under different heads considering the3,500/- per month. However, considering the fact that the deceased was having agricultural land and he himself was doing farming with his own tractor and was also engaged in the business of animal husbandry, the Court deems it fit to consider the monthly income of the deceased at ₹3,30,853/- under different heads considering the4,500/- per month and after giving 10% rise, it is considered at ₹3,30,853/- under different heads considering the4,950/- (round off ₹3,30,853/- under different heads considering the5,000/-) per month and after deducting one-third towards the personal expenses of the deceased and adopting the multiplier of 13, the amount towards the future loss of income would come to ₹3,30,853/- under different heads considering the5,20,104/- [ ₹3,30,853/- under different heads considering the5,000/- (-) ₹3,30,853/- under different heads considering the1,666/- = ₹3,30,853/- under different heads considering the3,334/- x 12 months = ₹3,30,853/- under different heads considering the40,008/- x 13 multiplier], which is just and reasonable amount.

8. From the impugned judgment and award, it appears that the Tribunal has awarded only ₹3,30,853/- under different heads considering the40,000/- towards the loss of consortium. However, considering the decision of the Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 SCC 130, an amount of ₹3,30,853/- under different heads considering the1,20,000/- (₹3,30,853/- under different heads considering the40,000/- to each claimants) is required to be awarded towards loss of

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consortium.

9. In view of the aforesaid findings, the Court is of the view that the claimants are entitled to the compensation as under :

₹3,30,853/- under different heads considering the5,20,104/- Future loss of income

₹3,30,853/- under different heads considering the15,000/- Loss of Estate

₹3,30,853/- under different heads considering the1,20,000/- Loss of Consortium

₹3,30,853/- under different heads considering the15,000/- Funeral Expenses

₹3,30,853/- under different heads considering the1,91,254/- Medical Expenses

₹8,61,358/-8,61,358/- Compensation

Less : 50% Negligence ₹3,30,853/- under different heads considering the4,30,679/-

₹8,61,358/-4,30,679/- Total Net Compensation

10. The Tribunal has awarded ₹3,30,853/- under different heads considering the3,30,853/- towards the compensation amount. However, this Court has considered ₹3,30,853/- under different heads considering the4,30,679/- towards the compensation amount. As a result of the same, the claimants are now entitled to an additional compensation of ₹3,30,853/- under different heads considering the99,826/- (round off ₹3,30,853/- under different heads considering the1,00,000/-) (Rupees One Lakh only) with interest at the rate of 6% per annum from the date of filing of the petition till realization.

11. The Insurance Company is directed to deposit the additional amount of compensation of ₹3,30,853/- under different heads considering the1,00,000/- with interest at the rate of 6% per annum from the date of claim petition till its

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realization, within a period of six weeks from the date of receipt of copy of this order.

12. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal with accrued interest thereon, if any, to the claimants by account payee cheque after proper verification and after following the due procedure.

13. While making the payment, the Tribunal shall deduct the courts fee, if not paid, in accordance with rules/laws.

14. With the aforesaid, the Appeal stands partly allowed. Records and proceedings be sent back to the concerned Tribunal forthwith.

(A.Y. KOGJE, J.) /MOINUDDIN