Gujarat High Court
Artiben Bhaveshbhai Rathod vs Hareshbhai Nathalal Nakum on 15 September, 2023
Bench: Gita Gopi
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C/FA/2634/2022 JUDGMENT DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2634 of 2022
With
R/FIRST APPEAL NO. 2879 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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ARTIBEN BHAVESHBHAI RATHOD
Versus
HARESHBHAI NATHALAL NAKUM
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6,7
for the Defendant(s) No. 2
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2.1,2.2,2.3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/09/2023
ORAL JUDGMENT
1. Both these appeals have been preferred by the appellants -
original claimants against the common judgment and award dated
11.05.2022, passed by the learned Motor Accident Claims Tribunal
(Auxiliary), Bhavnagar at Mahuva in Motor Accident Claim Petition
Nos. 1 and 2 of 2020.
2. The facts of the case, as could be drawn from the impugned
judgment and award, are that on 29.11.2019, at about 11:00 p.m.,
deceased Shardaben Rameshbhai Rathod (Motor Accident Claim
Petition No. 1 of 2020) and deceased Bhaveshbhai Rameshbhai
Rathod (Motor Accident Claim Petition No. 2 of 2020), were going
on a motorcycle on their side of the road, slowly proceeding from
Village: Jadra to Mahuva. The motorcycle was being driven by
deceased Bhaveshbhai and deceased Shardaben was a pillion rider.
When they reached near Gigev Marble, the driver of a Car bearing
registration No. GJ-5-JF-9901 came on the wrong side by driving
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the Car in rash and negligent manner, in excessive speed, and dashed
with the motorcycle, due to which, the deceased sustained grievous
injuries and died during the treatment.
3. Heard, learned advocate Mr. Nishit Bhalodi for the appellants
- claimants and learned advocate Mr. Dakshesh Mehta for the
contesting respondent No. 3 - insurance company.
3.1 It is submitted by the learned advocate for the appellants -
claimants that the income of the deceased as unskilled labourer has
not been considered in accordance with the Minimum Wage
Schedule. It is further submitted that the amount under the head of
Loss of Consortium has not been granted as per the decision of the
Apex Court in Magma General Insurance Company Limited v.
Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130.
4. As against this, learned advocate Mr. Mehta for the respondent
- insurance company submitted that the learned Tribunal has
assessed the income as no documentary evidence was produced on
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record to consider the earning of the deceased and further submitted
that, just and reasonable amount has been awarded under all the
heads to consider the total compensation.
5. On the date of accident i.e. 29.11.2019, both the deceased
were working as labourers. As per the material on record, the
deceased being unskilled labourer, their monthly income, as per the
Minimum Wage Schedule, would be Rs.8,118/-.
5.1 Deceased Shardaben Rameshbhai Rathod of Motor Accident
Claim Petition No. 1 of 2020 was aged about 52 years at the time of
accident and therefore, would be entitled for 10% prospective rise in
income and accordingly, her monthly income is required to be
assessed at Rs.8,930/- (Rs.8,118 + 10%). Considering the number of
dependents, 1/5th amount is required to be deducted from the same
towards personal expenses of the deceased and thus, the monthly
dependency loss would come to Rs.7,144/- and annually, it would be
Rs.85,728/-. Considering the age of the deceased, a multiplier of 11
would be applicable and hence, the amount under the head of
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Dependency Loss would come to Rs.9,43,008/-. The amount under
the head of Loss of Consortium has been assessed by the Tribunal as
Rs.40,000/-, which is in accordance with the evidence on record and
the amount under the heads of Funeral Expenses and the Loss Of
Estate is rightly granted. Thus, the computation of compensation (in
Motor Accident Claim Petition No. 1 of 2020, First Appeal No. 2634
of 2022) would be as under:
Head Award of Modified
Tribunal (Rs.) (Rs.)
Dependency Loss 5,80,800/- 9,43,008/-
Funeral Expenses 15,000/- 15,000/-
Loss of Estate 15,000/- 15,000/-
Loss of Consortium 40,000/- 40,000/-
Total 6,50,800/- 10,13,008/-
Difference (enhanced amount) 3,62,208/-
5.2 So far as deceased Bhaveshbhai Rameshbhai Rathod of Motor
Accident Claim Petition No. 2 of 2020, is concerned, he was aged 35
on the date of accident and therefore, would be entitled for 40%
prospective rise in income and accordingly, his monthly income is
required to be assessed at Rs.11,365/- (Rs.8,118 + 40%).
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Considering the number of dependents, 1/5th amount is required to
be deducted from the same towards personal expenses of the
deceased and thus, the monthly dependency loss would come to
Rs.9,092/- and annually, it would be Rs.1,09,104/-. Considering the
age of the deceased, a multiplier of 16 would be applicable and
hence, the amount under the head of Dependency Loss would come
to Rs.17,45,664/-.
5.3 The Tribunal has rightly granted the amount under the heads
of Funeral Expenses and Loss of Estate. However, the amount under
the head of Loss of Consortium has been assessed by the Tribunal
only as Rs.40,000/-, while the claimants are the widow and two
minor children. Hence, as per the decision of the Apex Court in
Magma General Insurance Company Limited v. Nanu Ram alias
Chuhru Ram & Ors., (2018) 18 SCC 130., each claimant would be
entitled to Rs.40,000/- towards consortium loss, and therefore, the
amount under the said head would come to Rs.1,20,000/- (Rs.40,000
x 3). Thus, the computation of compensation (in Motor Accident
Claim Petition No. 2 of 2020, First Appeal No. 2879 of 2022) would
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be as under:
Head Award of Modified
Tribunal (Rs.) (Rs.)
Dependency Loss 11,82,720/- 17,45,664/-
Funeral Expenses 15,000/- 15,000/-
Loss of Estate 15,000/- 15,000/-
Loss of Consortium 40,000/- 1,20,000/-
Total 12,52,720/- 18,95,664/-
R/o. 12,52,800/-
Difference (enhanced amount) 6,42,864/-
6. In view of the above, both the appeals succeed and are
accordingly, allowed in part and the impugned judgment and award
is modified to the aforesaid extent.
6.1 The difference amount shall be deposited within a period of 08
(eight) weeks.
6.2 The appellants - claimants shall be entitled to interest at the
rate of 7.5% per annum on such enhanced amount of compensation,
from the date of petition till realization.
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6.3 On such amount being deposited, the same shall be disbursed
as per the order of the Tribunal.
6.4 R&P, if received, be transmitted back forthwith.
[ Gita Gopi, J. ]
hiren
/99 & 103
