Fatesinh Bhagwandas Alias ... vs Jitendrakumar Munnalal Saroj
2023 Latest Caselaw 309 Guj

     C/FA/2624/2019                               JUDGMENT DATED: 11/01/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2624 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================

      Whether Reporters of Local Papers may be allowed to see
 1                                                                        NO
      the judgment ?
 2 To be referred to the Reporter or not ?                               YES

      Whether their Lordships wish to see the fair copy of the
 3                                                                        NO
      judgment ?
   Whether this case involves a substantial question of law as
 4 to the interpretation of the Constitution of India or any              NO
   order made thereunder ?

======================================================

   FATESINH BHAGWANDAS ALIAS BAHGWANSINH PARMAR
                              Versus
             JITENDRAKUMAR MUNNALAL SAROJ
======================================================
Appearance:
MR. SABIR B SAIYYAD(6322) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 1
DS AFF.NOT FILED (N) for the Defendant(s) No. 2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
======================================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 11/01/2023

                            ORAL JUDGMENT

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988

C/FA/2624/2019 JUDGMENT DATED: 11/01/2023

(MV Act) filed at the instance of the appellants - original claimants against

the judgment and award dated 15.12.2018 passed by the learned Motor

Accident Claims Tribunal (Auxiliary), Rajpipla, Dist.: Narmada (Tribunal)

in Motor Accident Claim Petition No. 296 of 2015 (claim petition), which

was preferred under Section 166 of the MV Act, whereby, against a claim

valued at Rs.8 lakh for the fatal accident that had occurred on 24.08.2015,

the Tribunal has awarded a sum of Rs.4,75,000/- with interest at the rate of

9% per annum from the date of claim petition till realization, holding liable

the opponents therein to pay the compensation to the appellants - original

claimants. Hence, grieved claimants have filed this appeal on the point of

quantum.

2. Since, the facts of the accidents are not in dispute, the same are not

detailed here.

3. The respondent No. 1 is already deleted by virtue of an order dated

28.08.2019 passed by the coordinate Bench. The respondent No. 2 is the

owner of the offending vehicle. Accordingly, the Court proceeded with the

final hearing of the matter. Heard, learned advocate Mr. Sabir B. Saiyyad

for the appellants - original claimants and learned advocate Mr. Maulik J.

Shelat for the respondent No. 3 - insurance company.

       C/FA/2624/2019                                JUDGMENT DATED: 11/01/2023




3.1     The only contention that has been raised by the learned advocate for

the appellants is that the Tribunal has materially erred in awarding the

compensation under the conventional head of loss of consortium, without

considering the ratio laid down in the decision rendered by the Apex Court

in National Insurance Co. Ltd. v. Pranay Sethi and Others,

MANU/SC/1366/2017. It is submitted that the Tribunal has awarded only

an amount of Rs.25,000/- under the said head, which as per the aforesaid

decision ought to have been Rs.40,000/- and considering the number of

claimants i.e. 3, as per the settled legal position, the Tribunal ought to have

awarded Rs.1,20,000/- under the head of loss of consortium. Accordingly, it

is urged that this Court may allow this appeal considering the said aspects of

the matter and thereby, to enhance the award suitably.

4. As against this, the learned advocate for the respondent No. 3 -

insurance company, while heavily opposing this appeal and supporting the

impugned judgment and award, submitted that the impugned judgment and

award being just and proper, no interference is required at the hands of this

Court. It is submitted that the amount awarded under different heads are

rightly awarded by the Tribunal and accordingly, he requested that this

appeal being bereft of any merits, deserves to be dismissed.

C/FA/2624/2019 JUDGMENT DATED: 11/01/2023

5. Regard being had to the submissions made and considering the

averments made in the appeal as well as a perusal of the record reveal that in

an unfortunate fatal accident that had occurred on 24.08.2015, the deceased

had died for which a claim petition was filed claiming compensation to the

tune of Rs.8 lakhs against which, the Tribunal has awarded an amount of

Rs.4,75,000/- with 9% interest holding the respondents - opponents jointly

and severally liable to pay the compensation. The sole contention that has

been raised by the learned advocate for the appellants - claimants is with

regard to the amount awarded under the conventional head of loss of

consortium, which is Rs.25,000/- only. The learned advocate for the

appellants - claimants has, relying upon a decision of the Apex Court in

Pranay Sethi (supra), submitted that the amount under the head of loss of

consortium should be Rs.40,000/- per claimant.

5.1 In the aforesaid backdrop, if the ratio of the decision in Pranay Sethi

(supra) is referred to, it is held as under:

"61. In view of the aforesaid analysis, we proceed to record our conclusions:

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by

C/FA/2624/2019 JUDGMENT DATED: 11/01/2023

another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

5.2 Thus, as per the aforesaid decision, an amount of Rs.40,000/- under

C/FA/2624/2019 JUDGMENT DATED: 11/01/2023

the conventional head of loss of consortium is required to be awarded.

Further, in view of the decisions of the Apex Court in Magma General

Insurance Co. Ltd. v. Respondent: Nanu Ram and Ors.,

MANU/SC/1012/2018 and The New India Assurance Co. Ltd. and Others

v. Somwati and Others, (2020) 9 SCC 644, the compensation under the

conventional heads of loss of consortium, loss of estate and funeral expenses

is required to be granted to each claimant. Therefore, this appeal, is required

to be allowed to that extent and the impugned judgment and award is

required to be modified accordingly.

6. In the aforesaid backdrop, this appeal succeeds and is allowed

accordingly. The impugned judgment and award is modified to the

aforesaid extent and it is held that the appellants - claimants shall be entitled

for the following towards compensation:

            Head                  Award of Tribunal         Modified Amt. (Rs.)
                                       (Rs.)
Dependency loss                                4,20,000/-                   4,20,000/-
Loss of Estate                                   15,000/-                     15,000/-
Loss of consortium                               25,000/-                 1,20,000/-
                                                                     (Rs.40,000 x 3)
Funeral Charges                                  15,000/-                     15,000/-
                         Total                 4,75,000/-                   5,70,000/-
                  Difference                                                  95,000/-






       C/FA/2624/2019                                JUDGMENT DATED: 11/01/2023




6.1     The difference amount shall be deposited within a period of 08 (eight)

weeks.



6.2     The appellants - claimants shall be entitled to interest at the rate of

6% per annum on such enhanced amount of compensation, from the date of

petition till realization.

6.3 The rest of the impugned judgment and award is not disturbed.

6.4     R&P, if received, be sent back forthwith.


                                                              [ A. C. Joshi, J. ]
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