Gujarat High Court

Hinaben Jamanbhai vs Reliance Petroleum Ltd on 24 March, 2023

Bench: S.V. Pinto

     C/FA/1715/2010                                 JUDGMENT DATED: 24/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1715 of 2010

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO

==========================================================
1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                        HINABEN JAMANBHAI & 3 other(s)
                                   Versus
                      RELIANCE PETROLEUM LTD & 3 other(s)
==========================================================
Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1,2,3,4
MR ANAL S SHAH(3988) for the Defendant(s) No. 2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR PR NANAVATI(508) for the Defendant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
==========================================================
    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                Date : 24/03/2023

                               ORAL JUDGMENT

1. The appellants - original claimants have preferred

this appeal under section 173 of the Motor Vehicles Act

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

1988 (hereinafter referred to as "the Act") being aggrieved

and dissatisfied by the judgment and award dated 9.1.2009

passed by learned Motor Accident Claims Tribunal (Aux.),

Jamnagar in Motor Accident Claims Petition No.919 of

2000.

2. The brief facts of the case that emerge from the

record of the appeal are as under.

2.1 That on 2.9.2000 deceased Jamanbhai

Vallabhdas was travelling as a pillion rider on a Hero Honda

bearing registration No.GJ 10 E 1502 which was driven by

his nephew Naresh Navinchandra and they were travelling

from Sikka village to Jamnagar. That when they reached

near village Bed, the traffic had stopped and a truck was in

front of them and as they were waiting for traffic to move on,

the opponent No.1 came driving Dumper bearing

registration No.GJ 10 V 3641 rashly and negligently in full

speed and dashed against Matador bearing registration

No.GJ 10 B 4796 and as both these vehicles collided with

each other, they hit the Hero Honda and deceased

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

Jamanbhai Vallabhdas and his nephew were injured and

they were rushed to G.G.Hospital, Jamnagar for treatment

where Jamanbhai Vallabhdas succumbed to his injuries.

The offence was registered at Panchkoshi "B" Division Police

Station, Jamnagar being CR No. I - 161 of 2000.

3. The claimants i.e. wife, children and mother of

deceased Jamanbhai preferred the claim petition mainly

contending that they had lost their bread earner and the

deceased was working in Jalaram Transport as an Assistant

Manager and was earning Rs.4600/- per month and was

also doing wholesale business of tea and earning around

Rs.2000/- per month from that business and hence, the

deceased was earning around Rs.6000/- per month. That

the claimants have spent a huge amount for funeral and

last rites of the deceased and the deceased was healthy and

would live upto 80 years, but due to his sad demise, they

have lost their source of income and hence, the claimants

have claimed compensation of Rs.7,00,000/- jointly and

severally from the opponents.

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

4. The opponents - insurance companies appeared

before the learned Tribunal and after the evidence was

recorded, the learned Tribunal was pleased to award an

amount of Rs.6,13,800/- to the claimants as compensation

by a judgment and award dated 9.1.2009.

5. Being aggrieved and dissatisfied with the said

judgment and award, the claimants have preferred the

present appeal mainly contending that the amount awarded

has resulted in miscarriage of justice as the learned

Tribunal has failed to appreciate the future prospects of

advancement in life and career of the deceased while

computing the total amount of just and appropriate

compensation. That the learned Tribunal has considered

the amount of income of the deceased at Rs.4600/- per

month but has not considered his future prospective income

which ought to have been considered at Rs.6900/- per

month and hence, the quantum of compensation awarded is

on lower side. That the learned Tribunal ought to have

awarded the entire amount of Rs.7,00,000/- to the

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

claimants and hence, the appellants have prayed that the

amount of compensation be enhanced with interest from the

date of filing of the claim petition till the deposit of

enhanced amount before the learned Tribunal.

6. I have heard Mr.Premal S.Rachh, learned

advocate for the appellants, Mr.Aditya Chaudhary, learned

advocate for Mr.Anal Shah, learned advocate for respondent

No.2 and Mr.G.C.Mazmudar, learned advocate for

respondent No.4.

7. Mr.Premal Rachh, learned advocate for the

appellants has submitted that the learned Tribunal has not

considered the future prospective income of the deceased

which ought to have been at 40% of Rs.4600/- and after

applying multiplier of 16, dependency loss would come to

Rs.8,24,320/-. Moreover, the learned Tribunal has also not

considered the loss of estate which is at Rs.15000/- and

funeral expenses of only Rs.5000/- have been granted,

whereas the claimants are entitled to funeral expenses at

Rs.15,000/-. The learned Tribunal has also grossly erred in

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

granting Rs.20,000/- towards loss of consortium when in

fact, there are three dependents, the amount of Rs.40000 x

3 = Rs.1,20,000/- ought to have been granted to the

claimants and instead of the amount of Rs.6,13,800/-, an

amount of Rs.9,74,320/- ought to have been granted to the

claimants in view of the settled law of the Honourable

Supreme Court in the case of National Insurance

Company Limited Vs Pranay Sethi and others, reported

in (2017) 16 SCC 680.

8. Mr.Aditya Chaudhary, learned advocate for

respondent No.2 - insurance company of the Dumper

bearing registration No.GJ 10 V 3641 and Mr.Mazmudar,

learned advocate for respondent No.4 - insurance company

of the Matador bearing registration No.GJ 10 V 4796 have

opposed the present appeal and they have jointly submitted

that learned Tribunal has considered all the aspects and if

ultimately this Court comes to the conclusion that the

amount of compensation is to be enhanced in favour of the

claimants, interest at the rate of 6% per annum may be

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

granted on the same.

9. The Honourable Apex Court in Pranay Sethi

(supra) has observed thus :

"59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4 In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

10. In view of the above cited judgment, it appears

that learned Tribunal has not considered future prospective

income of the deceased and 40% rise in income of

Rs.4600/- per month is required to be added as the

deceased was self employed and after deducting 1/3rd

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

amount for personal expenses of the deceased, total

dependency loss would come to Rs.8,24,320/-, the learned

Tribunal has also not granted any amount towards the loss

of estate and funeral expenses only Rs.5000/- have been

granted, but in fact, the claimants are entitled to

Rs.15,000/- towards loss of estate and Rs.15,000/- towards

funeral expenses, the learned Tribunal has also awarded the

amount of Rs.20,000/- towards loss of consortium, but as

per the settled law in the case of Pranay Sethi (supra), the

wife is entitled to Rs.40,000/- as spousal consortium and

minor children are also entitled to Rs.40,000/- each as

parental consortium and accordingly, the claimants are

entitled to Rs.1,20,000/- towards loss of consortium. There

is no challenge with regard to the age of the deceased and

application of the multiplier of 16 applied by the learned

Tribunal and also the negligence factor of both the vehicles

as decided by the learned Tribunal and hence the same

have not been discussed.

11. In view of the aforesaid discussion, the

C/FA/1715/2010 JUDGMENT DATED: 24/03/2023

compensation awarded by learned Tribunal is held to be not

just and adequate and thereby the same deserves to be

modified as under.

Sr.No Details                                  Rs.
1           Dependency loss                    8,24,320/-
2           Funeral expenses                   15,000/-
3           Loss of estate                     15,000/-
4           Consortium                         1,20,000/-
            Total                              9,74,320/-

12. The learned Tribunal has awarded compensation

of Rs.6,13,800/- and hence, the claimants shall be entitled

for an additional amount of Rs.3,60,520/-. The learned

Tribunal has awarded interest at the rate of 9% per annum

on the amount awarded as compensation and the learned

advocates appearing for the respective insurance companies

have strongly opposed the grant of interest at the rate of 9%

per annum on the enhanced amount. The accident had

occurred on 2.9.2000 and the award came to be passed by

the learned Tribunal on 9.1.2009 and in view of the above,

this Court is of the considered opinion that if interest at the

rate of 7.5% per annum on the enhanced amount is