Gujarat High Court
Vasantba Wd/O Dilipsinh Ramsinh ... vs Imtiyazmiya Gulabmiya Parmar ... on 6 March, 2023
Bench: Mauna M. Bhatt
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4170 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 ? No
3 Whether their Lordships wish to see the fair copy No
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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VASANTBA WD/O DILIPSINH RAMSINH ZALA & 4 other(s)
Versus
IMTIYAZMIYA GULABMIYA PARMAR (SINCE DECD.) & 2 other(s)
==========================================================
Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1,2,3,4,5
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/03/2023
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act, 1988
(for short "the Act 1988"), is filed by the appellants - Original
claimants challenging the judgment and award dated 21.5.2010,
passed by the learned Motor Accident Claims Tribunal (Main),
Sabarkantha @Himatnagar in Motor Accident Claim Petition No.798
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
of 2007, wherein, the Tribunal awarded total compensation of
Rs.3,80,000/- with running interest @ 6% p.a. from 16.03.2010 till
realization with proportionate cost. The claim for court fees for this
appeal has been restricted to Rs.1lac.
2. Following facts emerged from the record of the appeal:
3. That on 14.06.2006, Dilipsinh was going towards Solapur from
Ahmedabad by traveling in swaraj mazda bearing registration No.
GJ-18-U-6884, as a second driver and when they were passing near
Hingoli Village, on Puna-Solapur road on account of rash and
negligent driving of the driver of the swaraj mazda, the same turned
turtle and dashed with the tree resulting into accident. On account
of the said accident, Dilipsinh (deceased hereinafter) sustained
grievous injuries and succumbed to same. FIR was lodged and
Panchnama was prepared. The legal heirs of the deceased filed
claim petition under Section 166 of the Act, seeking compensation
of Rs. 7 lacs under different heads.
4. Upon claim petition being filed, the notices were issued and
after service of notice, the opponents appeared and filed their
respective written statement.
5. The Tribunal after hearing the parties and upon appreciation
of the evidence on record, decided the issues as under:
(i) In relation to negligence, the Tribunal held driver of swara
mazda negligent to the extent of 100%.
(ii) In relation to compensation, the Tribunal awarded total
compensation under different heads as under:
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
Sr.No. Particulars Amount in Rs.
1 Towards Future Loss of dependency 3,40,000/-
2 Towards Pain, Shock and Suffering 15,000/-
3 Towards transportation 2,000/-
4 Towards loss of estate 10,000/-
5 Towards loss of consortium 10,000/-
6 Towards funeral expenses 3,000/-
7 Total under all the heads 3,80,000/-
6. Aggrieved by the quantum of compensation awarded, present
appeal is filed by the original claimants as appellants seeking
enhancement.
7. Heard learned advocate Mr. R.K. Mansuri for the appellants -
original claimants and learned advocate Mr. Sunil Parikh for
respondent No.3- Insurance Company of the Swaraj Mazda. As the
liability has not been denied, presence of other respondents is
dispensed with. The record and proceedings have been secured
and placed before this Court for perusal.
8. Learned advocate Mr. R.K. Mansuri for the appellants - original
claimants submitted that the Tribunal is in error in not assessing the
income of the deceased appropriately. Further, future loss of income
was not awarded. In support of his submissions he relied upon the
decision of the Hon'ble Supreme Court in case of National
Insurance Company Limited vs. Pranay Sethi & Ors. reported
in (2017) 16 SCC 680 and in case of Satinder Kaur alias
Satwinder Kaur vs. United India Insurance Co. Ltd. reported in
AIR 2020 SC 3076. He further submitted that the compensation
towards consortium, loss of estate and funeral expenses was not
appropriately awarded by the Tribunal. Moreover, the deceased
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
after accident, survived for 15 days and took rigorous treatment
therefore the amount of compensation awarded of Rs.15,000/-
towards pain, shock and sufferings needs enhancement. In relation
to interest which was awarded by the Tribunal with effect from
16.03.2010, he submitted that the Tribunal had erroneously
awarded interest from 16.03.2010, instead of date of filing of the
claim petition.
9. On the other hand, learned advocate Mr. Sunil Parikh for
respondent No.3 - Insurance Company supported the judgment and
award of the Tribunal dated 21.5.2010 and submitted that as the
award is based on appreciation of evidence on record, no
interference is called for. In relation to submission of pain, shock
and suffering, learned advocate Mr. Parikh submitted that once the
compensation towards future prospective loss of income is
considered the appellant would not be entitled to compensation
towards pain, shock and sufferings because it would amount to
double benefits. For the submission on interest awarded from
16.3.2010 instead of date of filing of the claim petition, he relied
upon the order dated 24.9.2009 and submitted that the Tribunal by
reasoned order awarded interest from the particular date. The said
order has not been challenged by the appellants and therefore now
it is open for him to challenge the same at this stage. If the
submission of learned advocate of the appellant is accepted it would
amount to impliedly permitting the appellant to challenge the said
order dated 24.9.2009. He thus supported the findings recorded by
the Tribunal and submitted that the appeal of the appellants being
meritless deserves to be dismissed.
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
10. No other and further submissions made by the learned
advocates appearing for the respective parties.
11. Having heard the learned advocates for the respective parties
and upon re-appreciation of the evidence, it is noticed that the
Tribunal assessed income of the deceased of Rs.2500/- p.m.
because no proof in support of the income was produced by the
original claimants. In the year 2006, i.e. the year of accident,
minimum wage per month was Rs.2500/-, therefore the income
assessed by the Tribunal in my opinion is appropriate. However in
view of the decisions of the Hon'ble Supreme Court in the Case of
Pranay Sethi & Ors.(Supra), the claimants would be entitled to
40% rise towards future prospective income and ¼ is required to be
deducted towards personal expenses. As age of the deceased was
30 years, multiplier of 17 would be applicable. Thus, the
dependency loss has been assessed as under:
"Rs.2,500 p.m. + Rs.1000 (40% prospective income) =
Rs.3500 - Rs.875/- (1/4th deduction as 5 dependents) = 2625
x 12 = Rs.31,500/- x 17 multiplier = Rs.5,35,500/-".
12. Further considering the decisions of the Hon'ble Supreme
Court in the case of Satinder Kaur alias Satwinder Kaur
(Supra), original claimants would be entitled for Rs.2,00,000/-
towards consortium (Rs.40,000/- x 5). Further, Rs.15,000/- towards
loss of estate and Rs.15,000/- towards funeral expense would be
appropriate. Instead of Rs.2,000/- awarded for the transportation, in
my opinion Rs.5,000/- would be appropriate. In relation to pain,
shock and suffering, the Tribunal had awarded Rs.15,000/-. It cannot
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
be ignored that at the young age of 30, the deceased underwent
rigorous treatment as indoor patient for 15 days however, could not
survived. Therefore, the amount of Rs.15,000/- being not big
amount, in facts of this case does not call for any interference.
Thus, the appellant - original claimants would be entitled to total
compensation as under:
Future loss of Income Rs. 5,35,500/-
Consortium Rs.2,00,000/-
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Transportation Rs.5,000/-
Pain, shock and suffering Rs. 15,000/-
Total compensation Rs.7,85,500/-
Therefore, following order is passed
ORDER
(i) Appeal is partly allowed.
(ii) Thus, the appellant - claimants would
be entitled to total compensation of
Rs.7,85,500/-. As the Tribunal has awarded
an amount of Rs.3,80,000/-, respondent
No. 3 - Insurance companie shall deposit
the balance additional amount of
compensation of Rs.4,05,500/-, (Rs.
7,85,500 - Rs.3,80,000) with 6% interest
p.a. from the date of filing of the claim
petition till its realization with the Tribunal
C/FA/4170/2010 JUDGMENT DATED: 06/03/2023
within a period of 8 weeks from the receipt
of the order.
(iii) The original claimants are entitled for
the compensation and the same shall be
disbursed to the original claimants through
RTGS, after due verification.
(iv) The rest of the judgment and award
passed by the learned Tribunal shall
remained unaltered.
(v) Deficit Court Fees, if any, is to be paid
by the appellant within a period of four
weeks, failing which the amount shall be
recovered from the amount to be deposited
by the Insurance Company.
(vi) Registry is directed to transmit back
the Record and Proceedings of the case to
the concerned Tribunal forthwith. However,
there shall be no order as to costs.
(MAUNA M. BHATT,J)
prk
