Gujarat High Court
Legal Heir Of Deceased Jayeshbhai ... vs Kuldeepsinh Dilipsinh Jadeja on 6 March, 2023
Bench: Mauna M. Bhatt
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3962 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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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LEGAL HEIR OF DECEASED JAYESHBHAI HARJIVANBHAI ZALARIYA & 3
other(s)
Versus
KULDEEPSINH DILIPSINH JADEJA & 3 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MS MAUSAMI NANAVATI, LD.ADVOCATE FOR MR VIBHUTI
NANAVATI(513) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/03/2023
ORAL JUDGMENT
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 ("the Act" for short) is filed by the original claimants as appellants
challenging the judgement and award dated 01.07.2010, passed by the
Motor Accident Claims Tribunal (Auxi.), Fast Track Court No.3, Morbi
in Motor Accident Claims Petition No.84 of 2006, wherein claim petition
filed by the original claimants came to be allowed in part and
compensation of Rs.5,70,600/- was awarded with interest at the rate of
7.5% per annum from the date of filing of the claim petition till
realization, with proportionate costs.
2. Facts, in brief, are that on 24.05.2005 at 12 mid-night,
Jayeshbhai Harjivanbhai (hereinafter referred as "the deceased") was
travelling on his Bullet Motor Cycle No.GJ-3-M-302 and going towards
Maliya. At that time, truck bearing registration No.GJ-14-T-3786, came
in full speed in rash and negligent manner and dashed with the motor
cycle, for which, the deceased sustained injury and succumbed to same.
For the said accident, FIR was lodged and panchmana was prepared. It
was case of the original claimants that accident occurred due to sole
negligence of the driver of truck. It was case of the original claimants that
the deceased was working as Manager in Navrachana Stone Products and
was also having income through his partnership firm. The deceased was
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
earning monthly income of Rs.13,900/- and was also having agricultural
income of Rs.75,000/- per annum and therefore, the original claimants
filed claim petition under section 166 of the Motor Vehicles Act, seeking
compensation of Rs.15,00,000/-.
Upon filing of the claim petition, Notices were issued.
Respondent No.2 - National Insurance Company Limited (insurance
company of the truck ) and respondent No.4 - United India Insurance
Company Limited (insurance company of motor cycle) appeared and
filed their written statements.
Tribunal after hearing the parties and upon appreciation of
oral and documentary evidence on record, held driver of the truck as 90%
negligent and the deceased as 10% negligent for the said accident.
Learned Tribunal assessed the income of Rs.6,12,000/- towards
dependency loss. To arrive at dependency loss of Rs.6,12,000/-, the
tribunal took into consideration income of the deceased as Rs.5,100/- per
month and 1/3 was deducted towards personal expenses. In the impugned
judgement and award, the Tribunal awarded total compensation of
Rs.6,34,000/- with interest at the rate of 7.5% per annum from the date of
filing of the claim petition till realisation, with proportionate costs, under
different heads, as under:
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
Future loss of income Rs.6,12,000/-
Loss of Estate Rs. 10,000/-
Love & Affection Rs. 5,000/-
Loss of consortium Rs. 5,000/-
Funeral expenses and other expenses Rs. 2,000/-
Total compensation Rs.6,34,000/-
As Tribunal held driver of the truck 90% negligent and
driver of the motor cycle as 10% negligent for occurrence of the accident.
Total compensation of Rs.5,70,600/- (after deducting 10% from
Rs.6,34,000/-) was directed to pay to the original claimants with interest
at the rate of 7.5% from the date of filing of the claim petition till its
realisation.
3. Aggrieved by the amount of compensation awarded, present
appeal is filed by the original claimants as appellants seeking
enhancement.
4. Heard learned advocate Mr.Hemal Shah for the appellants-
original claimants, learned advocate Mr. H.G.Mazmudar for respondent
No.2 (Insurance company of the truck) and learned advocate Ms.
Mausami Nanavati for learned advocate Mr.Vibhuti Nanavati for
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
respondent No.4 (Insurance company of the motor cycle). Since liability
has not been denied by respondent No.2, presence of other respondents is
not necessary for deciding this appeal and dispensed with. Record and
proceedings of the case have been secured and placed before this court
for perusal.
5. Mr.Hemal Shah, learned advocate for the appellants
submitted that the Tribunal is in error in not awarding the just
compensation to the appellants. He further submitted that as the deceased
was survived by 4 dependents, the Tribunal has erroneously deducted
1/3rd towards personal expenses instead of 1/4th. The Tribunal is also in
error in not awarding compensation under other conventional heads i.e.
loss of estate and funeral expenses as per the decision of Hon'ble
Supreme Court in the case of Sarla Verma and others Vs. Delhi
Transport Corporation and another reported in (2009) 6 SCC 1211 and
National Insurance Company Limited vs. Pranay Sethi and Others
reported in (2017) 16 SCC 680. In relation to consortium, he submitted
that the deceased was survived by four dependents and therefore, the
tribunal ought to have granted Rs.40,000/- to each dependent towards
consortium, instead of Rs.5,000/- lumpsum. In support of his submission,
he relied upon decision of Hon'ble Supreme Court in the case of United
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur
reported in AIR 2020 SC 3076, as well as in the case of Magma General
Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram reported in
2018 (18) SCC 130. He thus, requested to enhance the compensation
accordingly and to allow his appeal.
6. Per contra, Mr.H.G.Mazmudar, learned advocate for respondent
No.2 (insurance company of the truck) supported the findings given by
the tribunal. He submitted that compensation awarded by the Tribunal
being just compensation, does not call for any interference.
7. Heard learned advocates for the respective parties and
perused the record and proceedings of the case.
8. Upon reappreciation of evidence it is noticed that tribunal relying
upon the evidence on record, assessed the income of the deceased as
Rs.5,100/- per month. As the income assessed by the Tribunal is
appropriate, no interference is required. Further, in view of the decision
of Hon'ble Supreme Court in the case of Sarla Verma and others
(supra) and Pranay Sethi and Others (supra), the appellants would be
entitled to get 40% rise towards future prospective income. As the
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
deceased was survived by four dependents, 1/4 is required to be deducted
towards personal expenses instead of 1/3. Considering the age as 36
years, multiplier of 15 was correctly applied by the tribunal. Therefore,
the original claimants would be entitled to dependency loss as under:
"Rs.5,100/- per month + Rs.2,040/- (40% future prospective rise) =
Rs.7,140/- per month - Rs.1,785/- (1/4 towards personal expenses)
= Rs.5,355/- per month x 12 months = Rs.64,260/- per annum x 15
multiplier (considering age of the deceased at 36 years) =
Rs.9,63,900/-".
9. In relation to consortium, I am in agreement with the
submission advanced by learned advocate for the original claimants, that
they would be entitled to get Rs.40,000/- each towards loss of
consortium. Further, the original claimants would be entitled to get
Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral
expenses as held in the case of Pranay Sethi (supra).
10. The original claimants thus would be entitled to get total
compensation as under:
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
Loss of Future income Rs. 9,63,900/-
Loss of consortium (Rs.40,000/- x 4 dependent) Rs. 1,60,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Total compensation Rs.11,53,900/-
11. In view of the above, following order is passed: -
ORDER
(1) First Appeal is partly allowed.
(2) The appellants - original claimants would be entitled
to get compensation of Rs.11,53,900/-. As the Tribunal has held
the deceased negligent to the extent of 10%, the original claimants
would be entitled to get total compensation of Rs.10,38,510/-
(Rs.11,53,900/- - Rs.1,15,390/- [10% negligence]). As the Tribunal
awarded an amount of Rs.5,70,600/-, the respondent No.2 shall
deposit the balance amount of compensation of Rs.4,67,910/-
[Rs.10,38,510/- - Rs.5,70,600/-] with interest at the rate of 6% per
annum with proportionate costs, from the date of filing of the claim
C/FA/3962/2010 JUDGMENT DATED: 06/03/2023
petition till realization, with the Tribunal within a period of eight
weeks from the date of receipt of this order.
(3) The original claimants are entitled for the compensation and
the same shall be disbursed to the original claimants through
RTGS, after due verification. The rest of the judgment and award
passed by the learned Tribunal shall remained unaltered.
(4) Deficit Court Fees, if any, is to be paid by the appellants
within a period of four weeks, failing which the amount shall be
recovered from the amount to be deposited by the insurance
company.
(5) 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)
DIPTI PATEL
