Gujarat High Court
Jasiben Vinubhai Parmar vs Chauhan Chimanbhai Chaturbhai on 4 January, 2023
Bench: Ashokkumar C. Joshi
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3158 of 2017
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 ?
======================================================
JASIBEN VINUBHAI PARMAR & 4 other(s)
Versus
CHAUHAN CHIMANBHAI CHATURBHAI & 3 other(s)
======================================================
Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1,2,3,4,5
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3,4
======================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 04/01/2023
ORAL JUDGMENT
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988
(MV Act) filed at the instance of the appellants - original claimants against
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
the judgment and award dated 31.03.2016 passed by the learned Motor
Accident Claims Tribunal (Auxiliary), Kheda at Nadiad (Tribunal) in Motor
Accident Claim Petition No. 1699 of 2010 (claim petition), which was
preferred under Section 166 of the MV Act, whereby, against a claim valued
at Rs.10 lakh for the fatal accident that had occurred on 24.08.2010, the
Tribunal has awarded a sum of Rs.5,94,900/- with interest at the rate of
8.5% per annum from the date of claim petition till realization after
deducting 10% amount towards negligence of the deceased, holding liable
the opponent Nos. 1 and 2 to pay the compensation to the appellants -
original claimants and exonerating the opponent Nos. 3 and 4 therein.
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. Though served, the respondent Nos. 1, 3 and 4 have put in no
appearance and accordingly, the Court proceeded with the final hearing of
the matter. Heard, learned advocate Mr. Vaibhav N. Sheth for the appellants
- original claimants and learned advocate Mr. Shaival Patel for learned
advocate Mr. Tanmay B. Karia for the respondent No. 2 - insurance
company.
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
3.1 The gist of the arguments of the learned advocate for the appellants is
that the deceased was doing the work of driving with one Bhavani Transport
at the relevant point of time as well as was earning from Animal Husbandry
and thereby, was having income of Rs.5,000/- per month and the Tribunal
ought to have considered such amount towards income of the deceased
while computing the compensation, however, the Tribunal has erred in not
considering the said amount as income of the deceased and has further erred
in considering Rs.4,000/- per month as the income of the deceased. Further,
in his submission, the Tribunal has also erred in not computing the
prospective income of the deceased. Further, it is submitted that the
Tribunal has also erred in awarding the compensation under different heads
viz. loss of consortium, loss of estate and funeral charges 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. Accordingly, it is urged that this Court may allow
this appeal considering the said aspects of the matter and thereby, enhance
the award suitably.
4. As against this, the learned advocate for the respondent No. 2 -
insurance company, while heavily opposing this appeal and supporting the
impugned judgment and award, submitted that the impugned judgment and
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
award being just and proper, no interference is required at the hands of this
Court. It is submitted that the Tribunal, considering the fact that the incident
had occurred in the year 2010 and the claimant was doing driving, has
rightly considered the income of the claimant - appellant at Rs.3,000/- per
month sans any evidence. Further, it is submitted that the amount awarded
under different heads are also rightly awarded by the Tribunal and
accordingly, he requested that this appeal being bereft of any merits,
deserves to be dismissed.
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
the deceased was doing the driving work and as contended, was earning
from the work of Animal Husbandry and thereby, his income was stated to
be Rs.5,000/- per month. However, as the record reveals, no evidence,
much less the documentary evidence has been produce qua the income of
the deceased and accordingly, in the considered opinion of the Court, the
income as per the minimum wage i.e. Rs.4,350/- may be just and proper to
be considered as the income of the deceased. Considering the age and the
nature of job of the deceased 50% is required to be added towards future
prospective income of the deceased. Accordingly, Rs.4,350/- x 50% comes
to Rs.2,175/-, and thereby, the total income would come to Rs.6,525/-.
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
Further, in view of the ratio laid down in the decision in Sarla Verma and
Others v. Delhi Transport Corporation and Others, MANU/SC/0606/2009,
1/4th is required to be deducted from the said amount and accordingly, it
comes to Rs.4,893/- (Rs.6,525 - 1/4 th = 4,893/-), rounded off to Rs.4,900/-.
Besides, considering the ratio in the decision in Sarla Verma (supra), in
view of age of the deceased of 36 years, a multiplier of 15 is required to be
taken. Thus, the amount towards dependency loss would come to
Rs.8,82,000/- (Rs.4900 x 12 x 15). Moreover, in view of the decisions of
the Apex Court in Magma General Insurance Co. Limited v. Nanu Ram
alias Chuhru 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. 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 in part. The impugned judgment and award is modified to the
aforesaid extent and it is held that the appellant - claimant shall be entitled
for the following towards compensation:
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Dependency loss 5,76,000/- 8,82,000/-
Loss of consortium 15,000/- 2,20,000/-
(Rs.40,000 x 4 (wife & 4
children with 10%
increase)
Loss of love and 40,000/- ---
affection
Funeral Charges 10,000/- 15,000/-
Loss of Estate 10,000/- 15,000/-
Total 6,61,000/- 11,32,000/-
(sic. 6,51,000/-
Minus: 10% 66,100/- 1,13,200/-
Negligence of the
deceased
Total 5,94,900/- 10,18,800/-
Difference 4,23,900/-
R/o. 4,24,000/-
6.1 The difference amount shall be deposited within a period of 08 (eight)
weeks.
6.2 The appellant - claimant 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. However, as conceded by the appellants, as reflected
in the order dated 31.08.2017 passed by the coordinate Bench in Civil
Application (For Condonation of Delay) No. 9580 of 2017, that the
C/FA/3158/2017 JUDGMENT DATED: 04/01/2023
appellants shall not claim any interest for the period from 12.07.2016 to
08.06.2017 (both days inclusive), and accordingly, they will not be eligible
the interest for the said period.
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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