Gujarat High Court

Jagrutiben Sunilkumar Vyas vs Radubhai Jesingbhai Damor on 3 October, 2023

Bench: Gita Gopi

                                                                                    NEUTRAL CITATION




     C/FA/3941/2022                               JUDGMENT DATED: 03/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3941 of 2022


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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                      JAGRUTIBEN SUNILKUMAR VYAS
                                 Versus
                       RADUBHAI JESINGBHAI DAMOR
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Appearance:
MR BOMI H SETHNA(5864) for the Appellant(s) No. 1,2
MR CHINTAN N DESAI(9940) for the Appellant(s) No. 1,2
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 03/10/2023

                             ORAL JUDGMENT

1. The challenge is given to the judgment

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and award dated 29.07.2021 in MACP No.35 of 2018

passed by Motor Accident Claims Tribunal (Aux.),

Surat at Bardoli by the claimants, who are mother

and sister of the deceased. The grounds raised

inter alia states that the income has not been

assessed as per the evidence on record and

consortium loss has not been granted.

2. The facts of the case as was urged by

the claimants before the Tribunal was that on

24.05.2018, deceased was returning back home from

Mandvi on his Motorcycle No.GJ-19-AN-5851 driving

carefully on the left side of the road, while he

was passing through Kodod-Mandvi Road, Taluka-

Bardoli, Dist.-Surat, Truck No.GJ-06-TT-6342 came

in wrong side with full speed, rashly,

negligently, endangering the human life and

without following traffic rules, dashed the

motorcycle of deceased; as a result of which,

deceased sustained serious injury and died and

therefore, offence was registered against

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opponent no.1.

3. Advocates Mr. Bomi H.Sethna with Mr.

Chintan N.Desai, learned advocate for the

appellants stated that the deceased was aged

about 25 years and was B.E. Computer Engineer

serving as a Counselor in Financial Literacy

Centre at Surat District Cooperative Bank, and

was earning Rs.18,000/- per month, and in support

of the earnings the claimants had examined

Assistant Manager of Surat District Cooperative

Bank, who had produced appointment order dated

14.03.2017, where his initial engagement was for

one year on contract basis and on completion his

work was further extended.

3.1 Advocate Mr. Sethna submitted that over

and above the monthly salary, the deceased was

receiving Rs.2,000/- per month as per overhead

expenditure towards mobile/conveyance etc. and

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for field visit TA/DA were to be paid as per the

rules of the Bank, and to support the income, his

statement of the Bank Account was produced at

Exh.26, which shows his monthly income as well as

the amount of TA/DA, which was transferred on

02.06.2018 in his Bank Account for the month of

March-17 to May-18.

3.2 Mr. Sethna submitted that the evidence

of the Assistant Manager at Exh.45 of Shri

Sikeshkumar Chhaganbhai Chaudhari was noted by

the Tribunal, where he had stated that the

monthly income of the deceased was Rs.15,000/-,

and had also produced on record copy of Exh.25

and 46. The appointment letter shows that

initially he was given the honorary amount of

Rs.13,000/- per month, Rs.2,000/- towards mobile/

conveyance expenditure, and the appointment

letter itself clarifies that TA/DA will be paid

as per rules of the Bank; thus, Mr. Sethna

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submits that the fact gets corroborated by the

Bank Account to consider his monthly income as of

Rs.18,000/-.

4. Countering the arguments, Advocate

Mr.Mandeep Singh Saluja submitted that the

Tribunal has very aptly observed about Exh.25

regarding the honorarium of the deceased fixed at

Rs.13,000/- and Rs.2000/- was paid for

mobile/conveyance etc., and, thus taking into

consideration his work as a Counselor in

Financial Literacy Centre, Rs.15,000/- assessed

is in accordance to the evidence on record, and,

thus submitted that any prayer of further TA/DA

would be not consistent with the evidence

produced by the Assistant Manager of the Surat

District Cooperative Bank.

5. The initial appointment letter of

engagement as Counselor at Financial Literacy

Centre at Surat District Cooperative Bank, shows

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his honorarium would be Rs.13,000/- per month and

Rs.2000/- per month was to be paid for

mobile/conveyance etc., thus, in total, he was to

receive Rs.15,000/-. The appointment letter

itself suggests that for the for the field visit,

the TA/DA would be paid as per the rules of the

Bank. The working schedule as per the appointment

letter is five hours on all working days in a

week and in the remaining period, the deceased

was to go for field visit; his work itself as a

counselor would require field visit, and

specifically, engagement letter provides for

TA/DA to be paid as per the rules of the Bank.

5.1 Exh.24 is the degree certificate of the

deceased of Bachelor of Technology (Computer

Engineering). Exh.26 is the statement of Bank

Account, which shows of consistent deposit of

Rs.15,000/- in his bank account. Further, for a

period between March, 2017 to May, 2018, total

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amount of Rs.27,987/- is paid as transfer of

TA/DA. The average monthly TA/DA would come to

Rs.1865.80 (rounded off Rs.1900/-). As per the

appointment letter he would be paid TA/DA as per

Bank Rules, and the work of the deceased itself

would make him entitle for TA/DA for the field

visit, thus, it would be necessary to consider

that amount to be included in his monthly income,

hence, this Court considers it fit to assess

Rs.16,900/- as monthly income.

5.2 At the time of death, the deceased was

25 years old, hence, prospective rise in income

has been considered as 40% prospective rise in

income has to be considered as per National

Insurance Company Ltd. v. Pranay Sethi and Ors.,

AIR 2017 SC 5157.

6. Advocate Mr. Sethna has referred to the

judgment of Magma General Insurance Company Ltd.

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Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in

(2018) SCC 130 [2018 ACJ 2782] to plead that

though the present applicant would be considered

as unmarried bachelor, but in Magma's (supra)

case, the applicants were father and sister, and

1/3rd deduction was considered for personal

expenditure considering the members of the

family, who were dependents on the income of the

deceased.

6.1 Here, in this case, Mr. Sethna submitted

that the father had died in the year 2009 and the

claimants were widow mother and unmarried

daughter, who were totally dependents on the

income of the deceased, and, thus, made a prayer

that applying the same ratio, 1/3rd is required

to be deducted as personal expense, and, further

stated that consortium loss is required to be

granted to both the applicants as widow mother

and dependent sister.

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7. Countering the arguments, Mr.Mandeep

Singh Saluja submitted that the departure from

the judgment of Sarla Verma and Others vs. Delhi

Transport Corporation and Another, reported in

AIR 2009 SC 3104, should be made in exceptional

case, where nothing has come on record that the

claimants were not earning, and the sister was

totally dependent on the deceased, thus, stated

that ½ of the income is required to be deducted

as personal expense.

8. The arguments raised by both the sides

have been considered. In the case of Magma

General Insurance Company Ltd. (supra), the

claimants before the Apex Court were father and

sister and on consideration to the issue with

respect to the deduction from the income of the

deceased, where it was contended by the Insurance

Company that the deduction ought not to have been

1/3rd since the deceased was a bachelor. Having

regard to the judgment of Sarla Verma (supra) to

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appreciate that when the family of the deceased

is large and dependent on the income of the

deceased, as in a case where he has a widow

mother and younger non-earning sister, his

personal and living expenses may be restricted to

1/3rd, as contribution to the family would be

taken as 2/3rd.

8.1 In co-relation to the facts as were

before the Apex Court in Magma General Insurance

Company Ltd. (supra), 1/3rd was considered as

rightly deducted by the High Court towards

personal expenses of the deceased, observing that

the deceased was living in a village, where he

was residing with aged father, who was 65 years

old, and unmarried sister.

8.2 Here, in the present case, the mother is

aged about 55 years at the time of claim petition

and sister was 21 years old, who was studying.

Both are dependents on the deceased, hence, 1/3rd

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amount would be deducted as personal expenses

considering the dependency of the claimants on

the income of the deceased.

9. Thus, the yearly Future loss would come

as under:

Actual Income 16,900/-

Prospective             23,660/- [16,900              + 6,760 (40%
Income                  rise)]
 1/3rd                  23,660 / 3 = 7,886/-
Deduction

Annual Income 1,89,288 [23,660 - 7,886 = 15,774 x 12]

10. Considering the annual dependency,

applying the multiplier of 18; the dependency

loss would come to Rs.34,07,184/- (1,89,288 x

18).

10.1 In accordance to the judgment of

National Insurance Company Ltd. v. Pranay Sethi

and Ors. (supra), the amount under the head of

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funeral expenses and loss to estate would be

15,000/- under each head. The dependents are

widow mother and unmarried sister, thus, as per

Magma General Insurance Company Ltd. (supra), the

consortium amount for each of them would be

Rs.40,000/-; hence, under the head of loss of

consortium, the amount would be Rs.80,000/-

(40,000 x 2).

11. In view of the above, compensation under

different heads would be:

Heads                                                               Amount
Future loss of income                               Rs.       34,07,184/-
Loss of Estate                                      Rs.             15,000/-
Funeral Expenses                                    Rs.             15,000/-
Loss of Consortium                                  Rs.             80,000/-
Total                                               Rs.       35,17,184/-

12. The Tribunal has granted compensation of

Rs.22,98,000/-. The enhanced amount of

Rs.12,19,184/- [35,17,184 - 22,98,000] be

deposited within eight weeks from the date of

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receipt of writ of this order at the rate of

7.5%.

12.1 After depositing of the amount, the

Tribunal concerned is directed to disburse 60%

thereof in favour of both the claimants, by