Gujarat High Court

Patel Alpaben Yogeshkumar vs Jadeja Bhanvarsinh Umedsinh on 4 September, 2023

Bench: Gita Gopi

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     C/FA/212/2020                                 JUDGMENT DATED: 04/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 212 of 2020


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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                      PATEL ALPABEN YOGESHKUMAR
                                 Versus
                     JADEJA BHANVARSINH UMEDSINH
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3
MR DEEPAK G ALORIA(6580) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 04/09/2023

                             ORAL JUDGMENT

[1] The widow and the minors are the appellants

who have challenged the judgment and award

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dated 27.8.2019 passed by the MACT (Aux),

Mehsana at Visnagar in MACP no.1337/2012,

which was originally registered as MACP

no.512/2011 primarily on the ground that the

income of the deceased has not been assessed

in right perspective. Mr. Thakore, learned

advocate for the applicants submitted that the

deceased was an agriculturist and he was

owning the agricultural land. The relevant

documents by way of village form no.7/12 were

produced on record at Exh.18 and the learned

Tribunal by taking into consideration the date

of the accident should have assessed the

income for the loss of managerial skill. Mr.

Thakore stated that the amount of Rs.3,000/-

assessed as notional income does not

commensurate to the documents produced on

record for the loss sustained by the family of

the managerial skill of the deceased to look

after the agricultural land.

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[2] Mr. Thakore further stated that the learned

Tribunal was also required to grant consortium

amount 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 to all the claimants.

[3] Countering the arguments, Mr. Deepak Aloria,

learned advocate for respondent no.2 stated

that the claimants had failed to prove any

evidence on record to show the income

generated from the agricultural property for

the Court to assess a managerial skill and

thus, stated that the amount of Rs.3,000/- as

granted by the Tribunal is just and proper. It

is submitted that the loss of consortium has

been granted to the widow and the total amount

is reasonable to consider it as just and

proper.

[4] The claim petition was filed on the facts that

on 28.6.2011 at about 03:00 O'Clock in the

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noon, the deceased - Yogeshkumar was traveling

on a motorcycle bearing registration no. GJ-2-

AR-5448 as a pillion rider and the motorcycle

was driven by Ankitkumar and at that time, one

S.T. bus came in a full speed in a rash and

negligent manner and dashed the motorcycle.

The motorcyclist died on the spot while the

pillion rider Yogeshkumar died during the

course of treatment.

[5] At the time of the accident, the deceased was

35 years of age. The documents on record shows

that village form no.7/12 have been produced

at Exh.18. The deceased was holding the

agricultural land and the claimant during the

course of examination-in-chief had stated that

her husband was earning Rs.10,000/- per month

by doing agricultural activities. The learned

Tribunal while deciding the income at

Rs.3,000/- per month has observed that the

claimants have not produced any documentary

evidence on record showing the income, while

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record suggests that at Exh.18, revenue

extracts were produced which are reflected in

the judgment. The learned Tribunal should have

granted the amount under the head of loss of

managerial skill of the deceased who was

looking after the agricultural property.

Taking into consideration the date of accident

as 28.6.2011 and keeping in mind the minimum

wages schedule, Rs.4,500/- ought to be granted

as just and reasonable amount and the age of

the deceased was 36 years at the time of the

accident which was proved by way of school

leaving certificate at Exh.19 and multiplier

of 15 will be applicable. Since he was below

40 years of age, 40% prospective rise in

income is to be considered and thus

accordingly, Rs.4,500/- + 40% = Rs.1,800/- =

Rs.6,300/-. One-third is deducted for personal

expense considering 3 dependents. Thus, from

Rs.6,300/- dependency amount of Rs.2,100/- is

deducted. Hence, the monthly dependency would

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be considered as Rs.4,200/-. Considering the

annual dependency of Rs.50,400/- with

multiplier of 15, loss of dependency would be

assessed at Rs.7,56,000/-.

[6] In the case of Magma General Insurance Company

Limited Vs. Nanu Ram alias Chuhru Ram & Ors.,

reported in (2018) 18 SCC 130, it has been

observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is

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generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded

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to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

[7] The dependents - claimants are 3 in number,

widow and two minor children and hence, an

amount under the head of loss of consortium of

Rs.1,20,000/- (Rs.40,000/- X 3) is required to

be granted.

[8] Considering the decision in the case of

National Insurance Company Limited Vs. Pranay

Sethi & Ors. reported in (2017) 16 SCC 680,

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

for funeral expenses have been granted. Thus,

the computation of the compensation would be

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as under:-

Rs.7,56,000/- Loss of dependency + Rs.1,20,000/- Loss of consortium + Rs. 15,000/- Loss of estate + Rs.15,000/- Funeral expenses = Rs.9,06,000/- Total compensation

[9] As the Tribunal has granted compensation of

Rs.5,74,000/- with interest at the rate of 9%

per annum, the appellants - claimants would be

entitled to the enhanced amount of

compensation of Rs.3,32,000/- with interest at

the rate of 7.5% per annum from the date of

filing of the claim petition till its

realization. The insurance Company is directed

to deposit the said amount within eight weeks

from the date of receipt of writ of this

Court. The enhanced amount shall be disbursed

as per the proportion laid down by the

Tribunal in the award.