Gujarat High Court
Hetalben Ghanshyambhai Patel vs Rajeshbhai M Patel on 27 March, 2023
Bench: Gita Gopi
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1669 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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HETALBEN GHANSHYAMBHAI PATEL
Versus
RAJESHBHAI M PATEL
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 3
MS LILU K BHAYA(1705) for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/03/2023
ORAL JUDGMENT
1. Challenge is given to the judgment and award
dated 26.3.2018 passed by the MACT (Aux),
Kheda at Nadiad in MACP no.831 of 2013.
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
2. The ground raised is that the income has not
been considered in accordance to the minimum
wages schedule and consortium amount has not
been granted as per the decision in the case
of Magma General Insurance Company Limited
Vs. Nanu Ram alias Chuhru Ram & Ors.,
reported in (2018) 18 SCC 130. Mr. Bhalodi,
referring to the facts of the case, states
that the deceased was working as driver in
J.K. Transport Company. Mr. Bhalodi submits
that since the concerned person could not be
examined, but to satisfy the fact prima
facie of he being the driver, it could not
be proved. Mr. Bhalodi submits that the
Tribunal ought to have taken judicial notice
of the said fact and should have at least
considered him as a skilled worker and could
have granted money in accordance to the
minimum wages schedule and thus, states that
the income assessed is on lower side.
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
Further, the consortium money was required
to be granted in accordance to the decision
in the case of Magma General Insurance
Company Limited (supra), since the deceased
left dependents being widow, two minor
children and aged parents.
3. Countering the arguments, Advocates Mr.
Thomas as well as Ms. Bhaya for both the
insurance Companies submit that since no
income was proved, the learned Tribunal has
granted Rs.4,000/- per month considering as
the income of the deceased, which is just
and reasonable and thus, urged that the same
be considered.
4. The facts of the case suggest that the
deceased was traveling in a Qualis car
bearing registration no. GJ-6 AH-8898. The
deceased was plying the vehicle and suddenly
from opposite direction, the driver of
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
tanker bearing registration no. GJ-7 Z-7160
came in an excessive speed in a rash and
negligent manner and dashed Qualis car, as a
result, he sustained serious injuries and
succumbed to death. The learned Tribunal,
after discussing the facts on record of two
involved vehicles of the deceased driving
the Qualis car bearing registration no. GJ-6
AH-8898, attributed negligence of 20% to the
deceased, while 80% negligence was assessed
of the driver of the tanker bearing
registration no. GJ-7 Z-7160. The negligence
aspect has not been challenged by any of the
parties on record. No contrary fact has been
shown to this Court for taking any contrary
view. Thus, this Court considers that the
ratio as apportioned for the negligence of
drivers of both the vehicles is in
accordance to the evidence on record.
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
5. It is an admitted fact that the deceased
himself was driving the Qualis car and it
has been stated that he was driver with one
J.K. Transport Company. However, the fact
could not be proved by the documents on
record or by examining any authorized person
of J.K. Transport Company. However,
considering the deceased as unskilled
worker, the learned Tribunal ought to have
granted the money in accordance to the
minimum wages schedule which on the date of
the accident being 14.5.2013, the Tribunal
ought to have considered at Rs.5,300/-. The
learned Tribunal has granted 40% rise in
income, which is in accordance to the
judgment of the Hon'ble Apex Court
considering the age of the deceased as 29
years at the time of the death, the
dependents are widow, two children, parents
and one grand mother, hence, one-fourth is
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
required to be deducted. Thus, future
dependency loss per annum would be
Rs.66,780/- (Rs.5,300/- + 40% - 1/4 X 12).
6. The multiplier applied is 17 by the learned
Tribunal, which is in accordance to the age
and the decision in the case of Sarla Verma
Vs. Delhi Transport Corporation & Anr.,
(2009) 6 SCC 121. Hence, applying multiplier
of 17 to the future dependency loss, the
future loss of income would come to
Rs.11,35,260/- (Rs.66,780/- X 17).
7. Following the judgment in the case of
National Insurance Company Limited Vs.
Pranay Sethi & Ors. reported in (2017) 16
SCC 680 under the head of funeral expenses
and loss of estate, Rs.15,000/- under each
head has been granted by the Tribunal, which
are just and proper.
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
8. However, the consortium money is not in
accordance to the decision in the case of
Magma General Insurance Company Limited
(supra), where the widow and minor children
and even the aged parents would be entitled
to consortium loss and thus, considering 5
aggrieved persons at Rs.40,000/- per head,
total amount comes to Rs.2,00,000/-. Hence,
the computation would be as under:-
Future loss of income Rs.11,35,260/-
Funeral expenses + Rs.15,000/-
Loss to estate + Rs.15,000/-
Loss of consortium + Rs.2,00,000/-
Total compensation = Rs.13,65,260/-
9. As the Tribunal has granted compensation of
Rs.9,26,800/- with interest at the rate of
9% per annum, the appellants would be
entitled to enhanced amount of compensation
of Rs.4,38,460/- with interest at the rate
of 7.5% per annum from the date of filing of
the claim petition till its realization.
C/FA/1669/2019 JUDGMENT DATED: 27/03/2023
Both the insurance Companies are directed to
deposit an amount of Rs.4,38,460/- as per
the proportion so fixed by the Tribunal with
interest at the rate of 7.5% per annum
within six weeks from the date of receipt of
writ of this Court.
10. The impugned judgment and award be modified
accordingly. The appeal is partly allowed.
Registry is directed to send the record and
proceedings back to the Tribunal, if
received.
(GITA GOPI,J)
Maulik
