Shabanabanu W/O Imrankhan ... vs Shyamji Hiralal Saksena
2023 Latest Caselaw 551 Guj

     C/FA/478/2020                               ORDER DATED: 18/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 478 of 2020

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     SHABANABANU W/O IMRANKHAN MOHAMMADKHAN PATHAN
                          Versus
                 SHYAMJI HIRALAL SAKSENA
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Appearance:
MR.AMIT R JOSHI(6682) for the Appellant(s) No. 1,2,3,4,5
MRS. R.H. PATHAN(6540) for the Appellant(s) No. 1,2,3,4,5
MR AJAY R MEHTA(453) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 18/01/2023

                             ORAL ORDER

1. The present First Appeal is filed by the appellant - original claimants under Section 173 of the Motor Vehicles Act, 1988 (for short M V Act) against the judgment and award dated 14.11.2019 passed by the Motor Accident Claim Tribunal (Auxiliary) & 2nd Additional District Judge, Nadiad. The Tribunal while partly allowing the Motor Accident Claim Petition No. 1317 of 2013 granted compensation of Rs. 9,26,000/-. Being aggrieved by the same the appellant herein has approached this Court by filing the present appeal.

2. The brief facts of the case are that the claimants along with her children and deceased husband came to India from Saudi Arabia on 27.09.2013 and were residing in their hometown Balasinor. Thereafter, on 18.11.2013 at around 12:00 PM the deceased Imrankhan Pathan was going to meet

C/FA/478/2020 ORDER DATED: 18/01/2023

his friends on a motorcycle and at that time suddenly the truck bearing registration No. UP 8 AT 9813 driven by the opponent No. 1, owned by the opponent No. 2 came from the front on the wrong side of the road in a rash and negligent manner and met with an accident with the motor cycle driven by the deceased Imrankhan Pathan - husband of the present claimant. As a result of the accident the husband of the claimant succumbed to his injuries on the place of incident. Hence, the claimant filed a Motor Accident Claim Petition being registered as Motor Accident Claim Petition No. 1317 of 2013 before the Motor Accident Claim Tribunal (Auxiliary) and 2 nd Additional District Judge, Nadiad for compensation.

3. Heard Mr. Amit Joshi, learned advocate appearing for the appellant. Mr Joshi, learned advocate submitted that the Tribunal has erred in coming to the conclusion that the plaintiffs are entitled to Rs. 9,26,000/- towards the amount of compensation. Mr. Joshi, learned advocate submitted that the Tribunal has erred in coming to the conclusion of calculating the amount that the deceased was earning 2254/- Saudi Arabia Riyal per month. It is submitted that the document in form of a letter dated 16.12.2015 which is issued by the employer of the deceased was also produced on record. However, the Court below erred in considering the same as secondary evidence as Exh. 25/1 in the list of documents. Mr. Joshi, learned advocate further submitted that the Tribunal erred in not considering the fact that the future loss of dependency would come to Rs. 8,56,800/-. Mr. Joshi, learned advocate does not press Ground- F.

         C/FA/478/2020                                       ORDER DATED: 18/01/2023




3.1     Mr. Joshi, learned advocate further submitted that the

Tribunal ought to have considered mental trauma, shock and suffering since the claimant i.e. the wife of the deceased would be taking care of the minor children for the rest of her life for their survival. Mr. Joshi, learned advocate also submitted that the Court below has erred in not granting consortium to the legal heirs of the deceased - Imrankhan Pathan. The consortium is only granted qua the wife of the deceased to the tune of Rs. 40,000/- as spousal consortium. Mr. Joshi, learned advocate submitted that the Court below has also erred in granting Rs. 15,000/- as loss of estate. However the same is required to be enhanced to Rs. 16,500/-. For the aforesaid reasons, Mr. Joshi learned advocate for the appellant submitted that the appeal be allowed.

4. The respondent No. 2 through served has not appeared.

5. Heard Mr. Ajay Mehta, learned advocate appearing for the respondent - Insurance Company. Mr. Mehta, learned advocate submitted that the award passed by the Tribunal is just and proper and as a result no interference of this Court is called for in the said award. Mr. Mehta, learned advocate further submitted that the Tribunal while passing the impugned award has taken into consideration the position of law and facts of the case and awarded the compensation of Rs. 9,26,000/-.

6. Heard the learned advocates appearing for the respective parties and perused the documents placed on record. At this stage it is important to refer to the settled position of law.

C/FA/478/2020 ORDER DATED: 18/01/2023

Considering the ratio laid down by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. V/s Satinder Kaur @ Satwinder Kaur & Ors reported in 2021 11 SCC 780 the clause of consortium is required to be enhanced by Rs. 1,60,000/-. In view of this Court, the loss of estate is also required to be enhanced by Rs. 1500/- i.e. total loss of estate would be 16,500/-.

7. Considering the facts of the present case, so far as the submission made on behalf of the appellant that the income of the appellant be considered to 2254/- Saudi Arabia Riyal on the basis of the letter dated 16.12.2015 does not inspire confidence. The Court below has also while considering the income of the appellant has not accepted the same as a piece of evidence and considering the same no interference of this Court is called for in computation of the Tribunal as far as the income of the appellant which is considered as Rs. 4000/- as referred to in Para: 10.7.

8. In view of the settled position of law and in the facts of the present case as referred herein above, the judgment and award 14.11.2019 passed by the Motor Accident Claim Petition (Auxiliary) and 2nd Additional District Judge, Nadiad in Motor Accident Claim Petition No. 1317 of 2013 is modified by enhancing the amount of compensation by Rs. 1,61,500/- at the rate of 6% interest per annum from the date of application. The respondent - Insurance Company shall deposit the enhanced amount of compensation i.e. Rs. 1,61,500/- with interest at the rate of 6% per annum from the date of filing of the application within a period of 8 weeks from the receipt of

C/FA/478/2020 ORDER DATED: 18/01/2023

this order. Once the said amount is deposited the Tribunal shall disburse the amount in favour of the appellant preferably within a period of 4 weeks once the amount is deposited.

9. With the above directions, the present appeal is partly allowed.

(VAIBHAVI D. NANAVATI,J) SHRIJIT PILLAI