Gujarat High Court
Ranjanben Bhagwanji Alias ... vs Chandreshbhai Trikambhai Faldu on 16 January, 2023
Bench: Ashokkumar C. Joshi
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3839 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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 ? Yes
3 Whether their Lordships wish to see the fair copyNo
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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RANJANBEN BHAGWANJI ALIAS BHARATBHAI PARMAR
Versus
CHANDRESHBHAI TRIKAMBHAI FALDU
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Appearance:
MR MONAL S CHAGLANI(10240) for the Appellant(s) No. 1,2,3,4,5
MS MASUMI NANAVATI, ADVOCATE for
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 16/01/2023
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original
claimants under Section 173(1) of the Motor Vehicles Act,
1988, (for short 'M V Act') against the judgment and award
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
dated 19.05.2016 passed in Motor Accident Claim Petition No.
135 of 2004 by the Motor Accident Claims Tribunal (Auxi.),
Junagadh which was preferred under Section 166 of the MV
Act, whereby, against a claim valued at Rs.7,31,500/- lakh for
the deceased that had occurred on 09.12.2003 the Tribunal
has awarded a sum of Rs.4,20,000/- 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 appellant - original claimants. Hence, grieved claimant
has filed this appeal on the point of quantum.
2. The brief facts of the case are that respondent nos. 1 & 2
are Gynaecologist's and Deceased Bhagwanjibhai alias
Bharatbhai Shamjibhai Parmar (herein after referred as
"Deceased") was Assistant / Attendant working with
respondent nos. 1 and 2. While on dated 09.12.2003 as
respondent no. 1 had to be at Jetpur for Emergency Delivery,
respondent no. 1 took Deceased along with him for assistant
as he being duty bound. At around 06:30 - 07:00 in the
morning, respondent no. 1 in tension was driving recklessly,
rashly and negligently in uncontrollable high speed dashed
inside the unidentified and unknown vehicle on road resulting
into crashing of car driven by respondent no. 1 and death of
Deceased.
2.1 Deceased was aged approximately 35 years at the time
of accident, was earning as fixed basic pay of Rs. 1,000/- p.m.
as attendant/assistant and Rs. 200/- per operation which
respondent nos. 1 and 2 did, thereby deceased used to earn
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
atleast Rs. 3,000/- to Rs. 4,000/- p.m., deceased was preparing
and selling broom used for cleaning residential and commercial
places in part time whereby he used to earn Rs. 1,000/- to Rs.
2,000/- p.m. and thereby at around Rs. 5,000/- to Rs. 6,000/-
p.m. was earned by deceased.
2.2 That it is the stand of Respondent nos. 1 and 2 that
accident has not occurred because of the negligence of
respondent no.1 but the accident took place because of
sudden application of brake by Heavy Motor Vehicle in front of
the Car driven by respondent no. 1 which was ridden without
any Tail Lights or any indication and time being of winter,
atmosphere being foggy respondent no.1 could not avoid
crashing. Deceased was also a Compounder initially than
became Operation Assistant and was paid Rs. 1000/- as basic
pay and Rs. 200/- per operation done by him, also he used to
do 15-17 operations in a month.
2.3 That Respondent no. 3 has filed their Written Reply to the
Claim Petition and also filed an Application under Sec. 170 of
The Motor Vehicle Act, 1988 to defend in the same manner as
that the Respondent no. 1 and 2 can defend the petition but
Respondent no. 3 has not produced any evidence except the
Insurance Policy Cover note purporting that Vehicle Driven by
respondent no. 1 bearing Registration no. GJ -03-DD- 1870 is
insured with respondent no. 3 at the relevant time.
3. Learned advocate Mr. Monal Chaglani for the appellants-
original claimants has heavily placed reliance on the dictum of
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
the Hon'ble Apex Court and contended that the learned
Tribunal has not considered the monthly income of the
deceased and also drawn the attention of this Court at the
relevant paragraph specially Paragraph-14 of the impugned
judgment, at least it should be Rs. 4,000/- per month instead of
Rs. 3,000/-. Learned advocate for the appellants has also
drawn the attention of this Court to the judgment of the
Hon'ble Apex 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. Pranay Sethi and others reported in (2017) 16
SCC 680 = 2017 (3) GLH 53 , he states that the learned
Tribunal has not considered the dependency and also
consortium and thirdly, learned advocate for the appellants
has also drawn the attention of this Court that dependency has
also not counted properly and lastly contended that the
medical certificate including the expenditures which incurred
to the deceased is also not properly mentioned. Learned
advocate for the appellants has also drawn the attention of this
Court at different paragraphs of the impugned judgment and
also drawn the attention at Paragraph-18 of the judgment at
page-13, wherein the learned advocate for the appellants has
argued that the mistake occurred by the learned Tribunal and
he urged that this Court to intervene by modification of the
awarded amount by way of enhancement of the award.
4. Per contra, learned advocate Ms. Masumi Nanavaty for
Mr. Vibhuti Nanavaty for the Insurance Company heavily
opposed and urged that the learned Tribunal has considered all
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the aspects and there is no requirement to interfere in the
same.
5. Having heard learned advocates for the parties and
having gone through the judgment and award, this Court finds
that so far as first aspect is concerned that for monthly
income, for which this Court has gone through the averments
made in the pleadings as well as discussed by the learned
Tribunal has considered Rs. 3,000/- income per month, for
which the learned advocate for the appellants has heavily
argued. In the opinion of this Court, it appears that when Rs.
1,000/- is considered as monthly income and when 15
approximately operations have considered, in that case
income arises at Rs. 3,000/- for extra income plus Rs. 1,000/-
as regular income, it arises Rs. 4,000/- per month. This Court is
of the opinion that Rs. 4,000/- per month income for the
deceased is just and proper. To that extent, the modification is
required for the aspect of the monthly income.
6. So far as the medical bills are concerned, the Tribunal
has given the list i.e. documentary list, wherein item Nos. 12,
13, 14 & 15 which has been exhibited as Exh. 60, 61, 62 & 63,
wherein Exh. 60 pertains to the medical bill of Gayatri Medical
Store Rs. 26,291.76/-. Exh. 61 is medical is bill of Rs. 40,000/-
for indoor charges, Exh. 62 is Rs. 35,000/- for Trauma Centre
treatment charges. Exh. 63 is also cash memo medical bill.
Ultimately, in the opinion of this Court ex-facie arrives at more
than Rs. 1,00,000/-, but unfortunately, the Tribunal has
wrongly considered Rs.50,000/-. But, this Court is of the
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
considered opinion that Rs. 1,30,000/- as expenses for medical
treatment and charges is just and proper. So far as
dependency is concerned as per latest dictum of the Hon'ble
Apex Court in the case of Sarla Verma (supra) and Pranav Sethi
(supra) the dependency should be 1/4 rather than 1/3 because
in the present case, there are five dependents. Further, as per
latest dictum, funeral expenses and loss of estate at
Rs.15,000/-, and Rs.15,000/- is required to be awarded
respectively. Furthermore, considering the latest ruling of the
Hon'ble Apex Court, compensation under the head of
consortium i.e. spousal consortium, parental consortium and
filial consortium, each at Rs.40,000/- is required to be
awarded. Thus, in the present case, total consortium of
Rs.2,00,000/- (40,000/- x5) should be awarded.
7. Therefore, in the opinion of this Court and also
considering the judgment of the Hon'ble Apex court in the case
of Sarla Verma & ors. vs. Delhi Transport Corporation &
Anr. reported in 2009(6) SCC 121, as well as, in the case of
National Insurance Company Ltd. v. Pranay Sethi & Ors.
reported in (2017)16 SCC680, this appeal deserves to be
allowed in part with clarification that the appellant has prayed
for enhancement of Rs.3,11,500/- wherein as per the dictum of
the Hon'ble Apex Court, it should be Rs.6,96,000/- and
accordingly, the Appellant is required to pay the court fee -
stamp for the difference of amount other than already paid.
The amount for excessive court fees would be deducted at the
time of disbursement. Further, it is made clear that since the
original claim petition is of the year 2004, therefore in the
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larger interest of justice, the learned Tribunal shall disburse
the amount once the enhanced amount is deposited by the
Insurance Company within 4 weeks, after due verification. The
rest of the direction given by the learned Tribunal for
disbursement shall not be disturbed.
8. In the aforesaid backdrop, this appeal succeeds and is
allowed in part 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.)
Actual Income 3,000/- 4,000/-
Deduction of Personal 1/3 1/4
Expenditure
Prospective Income - 40%
Future Dependency 3,60,000/- 7,56,000/-
Medical Expenses 50,000/- 1,30,000/-
Consortium - (40,000 x 5)
=2,00,000/-
Loss of Estate - 15,000/-
Funeral Expenses 10,000/- 15,000/-
Total 4,20,000/- 11,16,000/-
Enhanced amount (11,16,000 -
4,20,000)
=6,96,000/-
Interest Rate 6%
C/FA/3839/2019 JUDGMENT DATED: 16/01/2023
8.1 The difference amount shall be deposited within a period
of 08 (eight) weeks.
8.2 This Court is agreed with the arguments of learned
advocate for the Insurance Company to the extent of change
of rate of interest at the rate of 6% instead of 9% as awarded
by the learned Tribunal, as per the latest dictum of Hon'ble
the Apex Court. The appellants - claimants shall be entitled to
the interest at the rate of 6% per annum on such enhanced
amount of compensation, from the date of the claim petition
till realization.
8.3 The rest of the impugned judgment and award is not
disturbed.
8.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J)
SALIM/41
