Gujarat High Court
Harshaben @ Manjulaben Himatbhai ... vs Dineshbhai M Tejani on 13 September, 2023
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2267 of 2019
With
R/FIRST APPEAL NO. 2268 of 2019
With
R/FIRST APPEAL NO. 2269 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
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 ?
==========================================================
HARSHABEN @ MANJULABEN HIMATBHAI JOGADIA & 3 other(s)
Versus
DINESHBHAI M TEJANI & 2 other(s)
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 3
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/09/2023
COMMON ORAL JUDGMENT
1. All the appeals arise out of the common
judgment and award dated 21.9.2013 passed by
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
the MACT (Aux), Rajula in MACP nos.701/2011,
702/2011 and 703/2011 which were initially
instituted as 191/2009, 192/2009 and 193/2009
respectively. All the appellants are the
claimants. First Appeals no.2267/2019 and
2269/2019 are filed by the heirs of the
deceased, while First Appeal no.2268/2019 is
filed by the injured-claimant.
2. The principal ground raised is with the
contention that the learned Tribunal has
committed an error in exonerating the
respondent - insurance company on the ground
that the deceased as well as the injured-
claimant were traveling as gratuitous
passengers in an auto rickshaw while the fact
on record suggests that the insurance company
which is exonerated is not of auto rickshaw
but of Toras truck driver bearing registration
no. GJ-5 AT-2311 and the learned Tribunal has
attributed negligence of the Toras truck
driver of 70%.
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
3. Another ground inter-alia raised is towards
assessment of income and the prospective rise
and also towards the amount deducted under the
head of personal expenses and also challenge
is given to the consortium loss which has not
been granted.
4. Mr. Dhomse, learned advocate for the claimants
submits that the rickshaw was goods rickshaw
and the deceased and the injured-claimant were
traveling as passengers along with labour
articles and Panchnama of the scene of
incident reflects the shoes, slippers, bowls
and cups and they were traveling as owner of
the goods. Mr. Dhomse further stated that the
learned Tribunal had considered 30% negligence
of the rickshaw driver and 70% of the Toras
truck driver and inspite of noting the
negligence of the Toras truck driver, the
insurance company of the truck came to be
exonerated observing that the deceased and the
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
injured-claimant were traveling as gratuitous
passengers in the rickshaw. Mr. Dhomse submits
that such strange observation has almost
denied justice to the claimants as there was
no ground to exonerate the insurance company
of the truck.
4.1 Mr. Dhomse further stated that the income was
required to be assessed as per the minimum
wages schedule as the deceased and the
injured-claimant were labourers and that fact
was proved who were traveling with the goods
in the goods rickshaw with labour articles
which is reflected in the FIR as well as
Panchnama. Mr. Dhomse further stated that the
consortium amount is required to be 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 to the dependents of the deceased and
prospective rise in income was also required
to be considered.
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
5. While countering the arguments, Advocate Ms.
Masumi Nanavati submits that since the goods
rickshaw is not insured, the appeals have been
filed and submits that the amount which has
been granted is just and proper.
6. The learned Judge has erroneously placed
reliance on the judgment in the case of
National Insurance Company Ltd. v. Prema Devi
& Ors., reported in II 2008 ACC 1 (SC) and has
considered that the insurance company would
not be liable to indemnify the gratuitous
passenger in the goods carriage. The learned
Tribunal has failed to appreciate that those
gratuitous passengers were not in the vehicle
which was the truck, but were traveling as in
the goods rickshaw. Those labourers were not
gratuitous passengers in the goods rickshaw
since they were traveling as owner of the
goods. The fact of those labourers traveling
in the rickshaw would not affect the liability
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
of paying the compensation to the extent of
negligence attributed to the truck driver. It
appears that the learned Judge has
misinterpreted the judgment relied upon.
7. In view of the fact and since 70% negligence
is attributed to the truck driver, the
insurance company of the truck bearing
registration no. GJ-5 AT-2311 i.e. present
respondent no.2 would be liable to pay the
compensation to the extent of 70%, while 30%
could be recovered from the owner and driver
of the goods rickshaw.
8. In view of the above, the order of exonerating
the insurance company is quashed and set
aside.
9. 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:-
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
"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
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
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
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
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."
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
10. First Appeal no.2267/2019 arises out of MACP
no.701/2011. The learned Tribunal has
considered the income of the deceased as
Rs.2,100/-. The date of accident is dated
11.4.1999. Keeping in mind the minimum wages
schedule, income of the deceased was required
to be considered as Rs.3,860/-. The age of the
deceased has been believed to be 28 years and
was mason and agricultural labourer, 40% rise
of prospective rise in income is required to
be considered and accordingly, monthly income
would come to Rs.5,404/- (Rs.3,860/- +
Rs.1,544/-). Annual income accordingly
assessed would be considered as Rs.64,848/-.
There are about 4 dependents and hence, one-
fourth amount is deducted towards personal
expenses. So the annual dependency would come
to Rs.48,636/- (Rs.64,848/- - Rs.16,212/-).
Multiplier applicable would be 17 and thus,
the dependency loss would come to
Rs.8,26,812/-.
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
10.1 The dependents are widow and 3 minors and
hence, under the head of consortium loss each
would be entitled for Rs.40,000/- and hence,
under the head of loss of consortium, an
amount of Rs.1,60,000/- is granted.
10.2 As per the decision in the case of National
Insurance Company Limited Vs. Pranay Sethi &
Ors., reported in (2017) 16 SCC 680,
Rs.15,000/- towards loss of estate and
Rs.15,000/- for funeral expenses are granted
and thus, the computation of income would be
as under:-
Loss of dependency Rs.8,26,812/-
Consortium loss + Rs.1,60,000/-
Loss of estate + Rs. 15,000/-
Funeral expenses + Rs. 15,000/-
Total compensation = Rs.10,16,812/-
10.3 The Tribunal has awarded compensation of
Rs.3,27,400/- and hence, the enhanced amount
comes to Rs.6,89,412/-. The liability of the
insurance Company of the truck is considered
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
as 70%.
11. First Appeal no.2269 of 2019 is arising out of
MACP no.703/2011. The Tribunal has considered
the income of the deceased as Rs.2,100/-.
Keeping in mind the minimum wages schedule,
income of the deceased was required to be
considered as Rs.3,860/-. The age of the
deceased has been believed to be 22 years.
Annual income accordingly assessed would be
considered as Rs.46,320/-. 40% rise of
prospective rise in income is required to be
considered and accordingly, income would come
to Rs.64,848/- (Rs.46,320/- + Rs.18,528/-).
There are about 5 dependents and hence, one-
fourth amount is deducted towards personal
expenses. So the annual dependency would come
to Rs.48,636/- (Rs.64,848/- - Rs.16,212/-).
Multiplier applicable would be 18 and thus,
the dependency loss would come to
Rs.8,75,448/-.
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
11.1 The dependents are widow, two minors and
parents and thus, each would be entitled to
Rs.40,000/-. Thus, in under the head of loss
of consortium, an amount of Rs.2,00,000/- is
granted. As per the decision in the case of
National Insurance Company Limited Vs. Pranay
Sethi & Ors., reported in (2017) 16 SCC 680,
Rs.15,000/- towards loss of estate and
Rs.15,000/- for funeral expenses are granted
and thus, the computation of income would be
as under:-
Loss of dependency Rs.8,75,448/-
Consortium loss + Rs.2,00,000/-
Loss of estate + Rs. 15,000/-
Funeral expenses + Rs. 15,000/-
Total compensation = Rs.11,05,448/-
11.2 The Tribunal has awarded Rs.3,10,600/- and
hence, the enhanced amount comes to
Rs.7,94,848/-. The liability of the insurance
Company of the truck is considered as 70%.
12. First Appeal no.2268 of 2019 is arising out of
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
MACP no.702/2011. The income of the injured-
claimant has been considered at Rs.2,100/-.
Considering the minimum wages schedule, he
would be entitled to Rs.3,860/- and the yearly
income would come to Rs.46,320/-. 5%
functional disability is assessed and thus,
annual loss of income would come to
Rs.2,316/-. Applying multiplier of 18, since
the age of the injured was 19 years at the
time of the accident, the amount would come to
Rs.41,688/-. Actual loss of income is assessed
for 2 months is assessed at Rs.7,720/-. Under
the head of pain, shock and suffering, the
learned Tribunal has granted Rs.5,000/-, which
is just and reasonable. Medical expenses of
Rs.2,880/- has been assessed while for
special diet, transport and attendance
charges, Rs.5,000/- has been granted which
would be considered as just and proper. Thus,
the computation would be as under:-
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
Future loss of income Rs.41,688/-
Actual loss of income + Rs. 7,720/-
Pain, shock and suffering + Rs. 5,000/-
Special diet, attendant and + Rs. 5,000/-
transportation
Medical expenses + Rs. 2,880/-
Total compensation = Rs.62,288/-
12.1 The Tribunal has awarded Rs.35,140/- and
hence, the enhanced amount comes to
Rs.27,148/-. The liability of the insurance
Company of the truck is considered as 70%.
13. As per the record, there has been a delay of
936 days in filing the appeal to challenge the
judgment and award which would be appropriate
to just consideration. The insurance company
is exempted to pay the interest on the
compensation amount for the delayed period of
936 days.
14. The total compensation amount be deposited
within 12 weeks by the Insurance Company from
the date of receipt of writ of this Court. The
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
compensation granted by the Tribunal would be
deposited with interest at the rate of 9% per
annum, while the interest applicable on the
enhanced amount is 7.5% per annum. The
insurance company is permitted to recover 30%
of the compensation amount from the owner and
driver of the auto rickshaw in accordance to
the proposition laid down in the case of
Khenyei Vs. New India Assurance Co. Ltd. &
Ors., reported in (2015) 9 SCC 273, wherein it
has been held as under:-
"22. What emerges from the aforesaid
discussion is as follows :
22.1 In the case of composite
negligence, plaintiff/claimant is
entitled to sue both or any one of
the joint tort feasors and to
recover the entire compensation as
liability of joint tort feasors is
joint and several.
22.2 In the case of composite
negligence, apportionment of
compensation between two tort
feasors vis a vis the
plaintiff/claimant is not
permissible. He can recover at his
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
option whole damages from any of
them.
22.3 In case all the joint tort
feasors have been impleaded and
evidence is sufficient, it is open
to the court/tribunal to determine
inter se extent of composite
negligence of the drivers. However,
determination of the extent of
negligence between the joint tort
feasors is only for the purpose of
their inter se liability so that
one may recover the sum from the
other after making whole of payment
to the plaintiff/claimant to the
extent it has satisfied the
liability of the other. In case
both of them have been impleaded
and the apportionment/ extent of
their negligence has been
determined by the court/tribunal,
in main case one joint tort feasor
can recover the amount from the
other in the execution proceedings.
22.4 It would not be appropriate
for the court/tribunal to determine
the extent of composite negligence
of the drivers of two vehicles in
the absence of impleadment of other
joint tort feasors. In such a case,
impleaded joint tort feasor should
be left, in case he so desires, to
sue the other joint tort feasor in
independent proceedings after
passing of the decree or award."
15. The impugned judgment and award be modified
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
undefined
accordingly. The appeals are partly allowed.
Registry is directed to send the record and
proceedings back to the Tribunal, if received.
(GITA GOPI,J)
Maulik
