Gujarat High Court

Mariyamben Ratanjibhai Gamit vs Pankajbhai Shantilal Bhula on 8 June, 2023

Bench: Gita Gopi

     C/FA/2288/2022                               JUDGMENT DATED: 08/06/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2288 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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      Whether Reporters of Local Papers may be allowed to
 1                                                                         NO
      see the judgment ?
 2 To be referred to the Reporter or not ?                                 NO
      Whether their Lordships wish to see the fair copy of the
 3                                                                         NO
      judgment ?
   Whether this case involves a substantial question of law
 4 as to the interpretation of the Constitution of India or                NO
   any order made thereunder ?

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            MARIYAMBEN RATANJIBHAI GAMIT
                           Versus
             PANKAJBHAI SHANTILAL BHULA
====================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MR VC THOMAS(5476) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 08/06/2023

                            ORAL JUDGMENT

1. The appellants - claimants of Motor Accident Claim Petition No.

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38 of 2015 (claim petition) have challenged the judgment and award

dated 09.10.2019 passed by the learned Motor Accident Claims Tribunal

(Main), Tapi at Vyara (Tribunal), mainly on the ground that the learned

Tribunal has erred in attributing 30% negligence of the deceased

contending that the respondent No. 1 - driver of the Maruti Car ought to

have been held solely negligent for the accident and that the award under

the head of loss of love and affection has not been granted to the children

of deceased.

2. Learned advocate Mr. Hiren Modi for the appellants - claimants,

referring to the facts of the case, stated that on 16.05.2015, deceased

Ratanjibhai Gamit was proceeding from Abhava to Althan by driving

motorcycle being Honda Activa bearing registration No. GJ-5-LL-5735

on the correct side of the road and in moderate speed, following traffic

rules and regulations. Referring to the Panchnama of place on accident,

the learned advocate for the appellants submitted that the accident had

taken place in front of Radhe Radhe Farm at about 2:30 p.m. and the

Panchnama of the place of accident suggests that a Maruti Car, bearing

registration No. GJ-05-CB-5607 had entered on the Western side of the

road and thereafter, the accident had occurred. In view of the facts of the

case, the learned advocate for the appellants states that the learned

C/FA/2288/2022 JUDGMENT DATED: 08/06/2023

Tribunal has erred in attributing 30% negligence on the deceased, while it

was total negligence of the car driver who had also failed to step into the

witness box to lead the evidence about the accident and thus, stated that

adverse inference could also be drawn only on that fact of no evidence

from the side of driver of the Maruti car.

3. Countering the arguments, learned advocate Mr. V. C. Thomas for

the respondent No. 2 - insurance company stated that the learned Tribunal

has examined the facts and has rightly attributed 30% negligence to the

Activa driver where, as per the Panchnama, the accident had occurred in

the middle of the road and the Northern - South Tar road is having width

of about 30 ft. Thus, there was ample space for the Activa driver to be

within the inner space for two wheeler rather than extending to the middle

of the road. Learned advocate Mr. Thomas for the insurance company

submitted that it is not a case of the appellants - claimants that there was

any intervening vehicle between both the drivers which could not have

viewed by each on on 30 ft. wide road. He submitted that since the car

driver was charge-sheeted, he would not have stepped into the witness

box rather, the claimants could have examined the pillion rider i.e.

Babubhai Raisingbhai Gamit to prove the sole negligence of the motor

car driver. The learned advocate for the insurance company further

C/FA/2288/2022 JUDGMENT DATED: 08/06/2023

submitted that the evidence before the learned Tribunal is to be examined

in independent way and the only fact that the car driver has been charge-

sheeted, could not lead to a conclusion that he was exclusively liable for

the accident.

4. Learned advocate Mr. Hiren Modi for the appellants - claimants

has relied upon a decision in Jatarbhai Shamjibhai Ganvit and Others v.

Manojkumar Pratapbhai Chaudhary and Others, 2019 ACJ 2230 to

submit that in case the driver of the motor car fails to enter into the

witness box and if there is no evidence to prove the negligence of the

deceased, then, the car driver is to be held solely responsible for the

accident.

5. The Panchnama of the place of accident shows that the width of the

road was 30 ft. and the four wheeler was lying in the middle of the road

on Northern side. The front side of the car was noted to be in slanting

position on the Southern - Western direction. The front part of the car is

shown to be damaged and the blood stains are noted on the driver side on

the glass. At a distance of 7 ft. on the road, the Panchas noted blood

stains and further at a distance of 15 ft., the Panchnama notes Activa

vehicle with bent wheel. The dickey was found open and a Helmet was

C/FA/2288/2022 JUDGMENT DATED: 08/06/2023

found lying between the two vehicles.

5.1 The learned Tribunal, referring to the decision in Jatarbhai

Shamjibhai Ganvit and Others (supra), has distinguished the facts

observing that in the said case, the motorcyclist was on the extreme left

and the accident had occurred on the left side of the road and therefore,

Jeep driver was found to be solely negligent. While, distinguishing the

facts of the case, the learned Tribunal, observing that pillion rider -

Babubhai was not examined by the claimants who is an eye-witness to

the accident, keeping in view the damages to the vehicles, the learned

Tribunal concluded that its is a case of head-on collision. There is no

reason to interfere with the observations so made since the accident had

occurred in the middle of the road. It is not the case of the claimants that

the deceased was on the extreme left and the Maruti car driver had

entered into his side of road and had caused accident.

5.2 This Court does not find any reason to interfere with the

observations with regard to the negligence aspect of the deceased and that

of the car driver. Hence, the grounds raised by the appellants - claimants,

in view of the observations of the learned Tribunal and the reasons cited

herein above, stand rejected.

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6. Learned advocate Mr. Modi for the appellants - claimants has

stated that the Apex Court in Magma General Insurance Company

Limited v. Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130

has dealt with the factum of consortium to be granted to the children of

the deceased and the children are entitled for the compensation for the

loss of love and affection and the same has been appreciated in the above

decision. The learned advocate for the appellants submitted that the

appellants - claimants are entitled for the consortium amount as laid

down in the Magma General Insurance Company Limited (supra).

6.1 Following is the extract of the relevant observations made by the

Apex Court in Magma General Insurance Company Limited (supra):

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband− wife which allows compensation to the surviving spouse for loss of "company, society, co− operation, affection, and aid of the other in every conjugal relation." Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid,

C/FA/2288/2022 JUDGMENT DATED: 08/06/2023

protection, affection, society, discipline, guidance and training." Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5th ed. 1979) family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world−over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

6.2 The learned Tribunal has granted Rs.40,000/- towards loss of

consortium to the widow only. However, in view of the decision in

Magma General Insurance Company Limited (supra), the claimants -

children also entitled to a sum of Rs.40,000/- each under such a head.

Thus, an addition amount of Rs.80,000/- (Rs.40,000 x 2 for two children)

is required to be granted.

7. In view of the above, the appeal succeeds and is allowed in part.

C/FA/2288/2022 JUDGMENT DATED: 08/06/2023

The impugned judgment and award is hereby modified to the aforesaid

extent and as aforesaid, an additional amount of Rs.80,000/- under the

head of loss of consortium is granted to the appellants - claimants

(children). The appellants shall be entitled to interest at the rate of 7.5%