Borgyari Rimalbhai Thaneshwar vs Amitbhai Kalabhai Desai
2023 Latest Caselaw 7034 Guj

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     C/FA/2769/2010                                JUDGMENT DATED: 25/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2769 of 2010


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI
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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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                      BORGYARI RIMALBHAI THANESHWAR
                                   Versus
                      AMITBHAI KALABHAI DESAI & 2 other(s)
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,1.1,1.2,1.3
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 MR. JUSTICE DEVAN M. DESAI
                     Date : 25/09/2023
                     ORAL JUDGMENT

1. This appeal is filed under Section 173 of the Motor

Vehicles Act, 1988 against the judgment and award

dated 12.4.2010 passed by the learned Motor

Accident Claims Tribunal (Aux.), Mehsana in Motor

Accident Claims Petition no.272 of 2006 for claiming

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compensation of Rs.5 lacs on account of accidental

death of Mr. Borgyari Rimalbhai Thaneshwar.

2. The facts in brief leading to filing of this appeal are as

under:

2.1 On 16.11.2005, the deceased was going in

a Metador bearing no.GJ-2Y-2261 from Santej to

Mehsana via Kadi. The deceased was doing the

service as a delivery boy of gas cylinders. On

16.11.2005, the opponent no.1 drew the Metador in a

rash and negligent manner and the said Metador was

turned turtled and resultantly Rimal succumbed. It is

the case of original claimant that the deceased was

23 years of age and was earning Rs.3,000/- per

month by working at Parth Enterprise as a cleaner.

Original applicant nos.1 and 2 are the parents of

deceased and original applicant no.3 is the brother of

the deceased. The notice and summons of the

petition were served to the original opponents,

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however, original opponent nos.1 and 2 i.e. the

owner and driver of the Metador no.GJ-2Y-2261 chose

not to file any written statement. The insurance

company filed its written statement vide Exh.15 inter

alia contending that the petition is not maintainable

and prayed for dismissal of the claim petition. Issues

were framed by the learned tribunal vide Exh.16. The

petitioners produced documentary evidence and also

led evidence. The brother of the deceased Mr.

Borgyari Nirmal Thaneshwar was examined vide

Exh.20. Owner of Parth Enterprise, Mr. Manu Govind

Patel was also examined at Exh.33.

3. After considering the oral as well as documentary

evidence, the learned tribunal awarded total

compensation at Rs.1,20,000/- with interest @ 7.5%

from the date of filing of claim petition till its

realization. The bifurcation is as under:

Rs.1,08,000/- Towards loss of dependency

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Rs.10,000/- Towards love and affection &

Rs.2,000/-Towards Funeral expenses.

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                Rs.1,20,000/-.                TOTAL

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4. Being aggrieved and dissatisfied with the impugned

judgment and award, the original applicants i.e. the

present appellants have preferred this appeal mainly

on the grounds mentioned in the memo of the

appeal.

5. Heard learned advocate Mr. Mehul Sharad Shah for

the appellants and Mr. Mandeep Singh Saluja for the

respondent no.3 - Insurance Company. Perused the

record.

6. The learned advocate Mr. Mehul Sharad Shah for the

appellants has submitted that the deceased was

going in a Metador of his master i.e. employer

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bearing registration no.GJ-2Y-2261 for the delivery of

gas bottles and when the Metador reached near the

place of accident, one truck came from opposite

direction in full speed. Resultantantly, opponent no.1

while taking Metador on one side of the road, turned

turtled. The deceased sustained injuries and

succumbed to the said injuries. The deceased was 23

years of age and was earning Rs.3,000/- per month

by working as a cleaner with Parth Enterprise i.e.

opponent no.2. It is further contended that the

learned tribunal has erred in considering the monthly

income to the tune of Rs.2,000/-. It is further

submitted that though the salary slip (Exh.34) was

produced and the employer of the deceased was

examined by the original petitioners, the income of

the deceased was not considered @ Rs.3,000/- per

month. As per the salary certificate as well as the

oral evidence of the employer, the deceased was

earning Rs.3,000/- per month. It is also the case of

the appellants that there was no reason to disbelieve

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the fact that the deceased was not earning

Rs.3,000/- per month. It is further submitted that

while considering the actual monthly income of

Rs.3,000/-, the learned tribunal ought to have

considered the prospective income of the deceased

@ Rs.4,500/- per month (Rs.3,000/- + Rs.6,000/- =

Rs.9,000/- / 2 = Rs.4,500/-). The learned advocate for

the appellants also submitted that the learned

tribunal has not considered the age of the deceased

but has considered the age of the petitioner nos.1

and 2 for the purpose of applying multiplier. The

learned tribunal, as per the contentions of the

learned advocate for the appellants has applied the

multiplier of 9, instead of 18 and deducted 2/3

amount towards personal and living expenses of the

deceased which is not as per the settled principles.

Learned advocate for the appellants have also

submitted that the learned tribunal has not

considered the compensation under the head of

consortium. The funeral expenses awarded is also

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less. The appellants have prayed for additional

compensation of Rs.2 lacs with interest @ 12% p.a.

by way of the present appeal.

7. The learned advocate for the appellants has relied

upon the following decisions in support of his

contentions:

(a) Sarla Verma v. Delhi Transport Corporation reported in 2009(6) SCC

(b) Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram and others reported in 2018(18) SCC 130

(c) Nagappa v. Gurudayal Singh reported in 2002 (O) AIJEL - SC 18864)

(d) Harpreet Kaur and others v.

Mohinder Yadav reported in AIR 2023 SC 111 &

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(e) Amrit Bhanu Shali v. National Insurance Co. Ltd. reported in 2012(11) SCC 738.

8. The learned advocate for the appellants has

submitted that looking to the age of the deceased

and since the deceased was unmarried, his salary

has to be computed @ Rs.3,000/- + Rs.1,500/- =

Rs,4,500/=, 1/3rd deduction = Rs.3000 x 12 =

Rs.36000 x 18 = Rs.6,48,000/-). Over and above

Rs.6,48,000/- under the head of loss of income, the

learned advocate for the appellants has prayed for

Rs.1,20,000/- (Rs.40,000/- x 3) under the head of loss

of consortium for 3 appellants and Rs.15,000/-

towards funeral expenses. Thus, as per the say of the

learned advocate for the appellants, the total amount

comes to Rs.7,83,000/-. The appellants, thus have

claimed as total to Rs.6,63,000/- (Rs.7,83,000/- -

Rs.1,20,000/- = Rs.6,63,000/-) + interest @ 7.5% p.a.

from the date of claim petition till its realization.

Except these no other submissions are placed for

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consideration.

9. Per contra, learned advocate Mr. Mandeep Singh

Saluja for the respondent no. 3 - insurance company

has vehemently objected to the contentions and

submissions raised by the appellants and mainly

contended that the judgment and award passed by

the learned tribunal is in consonance with the law

and the evidence on record. He has further

submitted that the income assessed by the learned

tribunal is legal and there is no requirement of

interference in the findings of the fact. He has further

contended that the salary of the deceased is rightly

determined @ Rs.2,000/- per month instead of

Rs.3,000/-. He has further contended that the

evidence of the employer Mr. Manubhai Hargovandas

is not believable as the employer has not produced

any books of account or vouchers in support of the

certificate issued by them. Salary certificate (Exh.34)

is not a reliable evidence for determining the income

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of the deceased. The learned advocate for the

respondent has submitted that in absence of any

cogent and reliable documentary evidence qua

salary, as per minimum wages chart for the semi

skilled worker, the income is to be assessed @

Rs.2,300/- per month. Since the deceased was

working as a cleaner, his salary could be assessed @

Rs.2,300/- per month and looking to the age of the

deceased at the time of accident and his marital

status, prospective income @ 40% can be taken into

consideration. Thus, the contention of the learned

advocate for the respondent is, for determining the

compensation, the basic salary can be considered @

Rs.2,300/- + Rs.920/- = Rs.3,220/-. Since the

deceased was unmarried, only parents are

considered as dependents, hence, 1/2 to be

deducted for personal living which comes to

Rs.1,610/- X 12 = Rs.19,320/- X 18 = Rs.3,47,760/-

Adding consortium of Rs.80,000/- for 2 dependents

i.e. parents only and Rs.15,000/- towards funeral

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charges, the total amount comes to Rs.4,42,760/-

with interest @ 7.5% p.a. While deducting

Rs.1,20,000/- as awarded by the learned tribunal, the

enhanced amount can be Rs.3,22,760/-.

10. So far as the quantum is concerned, it is necessary to

consider the salary which the deceased was drawing

at the time of death. The original petitioners have

produced the salary certificate issued by Parth

Enterprise and on perusal of the same, it transpires

that the deceased was employed as a cleaner and

was drawing the salary of Rs.3,000/- per month. It is

needless to observe that so far as the petitions under

Motor Vehicles Act, 1988 are concerned, strict proof

of Evidence Act is not to be considered. In the

present case, the salary certificate is produced and

even the employer was also examined. Hence, there

is no reason to disbelieve the documentary as well as

oral evidence so far as income of the deceased is

concerned. Hence, so far as the salary is concerned,

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the learned tribunal has erred in assessing the salary

of Rs.2,000/- instead of Rs.3,000/- per month.

11. So far as dependency is concerned, the original

claimant no.3 Mr. Borgyari Nirmal Thaneshwar, the

brother of the deceased cannot be considered as a

dependent for the reason that in the claim petition,

he has been shown as doing service in the cause title

of the petition. In the affidavit in lieu of examination

in chief filed under Order 18 Rule 4 of the Code of

Civil Procedure, the said Mr. Borgyari Nirmal

Thaneshwar has mentioned "Occupation: service".

Thus, it is an admitted position on record that the

claimant no.3 was not dependent and was doing the

service at the relevant time also. Thus, I am of the

view that so far as dependency is concerned only

appellant nos.1 and 2 are considered for determining

the deduction towards personal and living expenses

and for the application of multiplier, Hon'ble Apex

Court in the case of Sarla Verma (Supra), the

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Hon'ble Apex Court in paragraph nos.14, 15 and 19

held as under:

"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living

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expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and

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large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one- third and contribution to the family will be taken as two-third."

19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier

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mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years)"

In the aforesaid decision, the Hon'ble Apex Court has

observed that in the case of a bachelor, the

claimants are the parents, 50% is deducted as

personal and living expenses. It is further observed

by the Hon'ble Apex Court that in absence of

evidence to the contrary, brothers and sisters will not

be considered as dependents because they will either

be independent and earning, or married, or be

dependent on the father. In the present case, the

deceased was bachelor and number of dependent

family members are two, hence, 50% deduction from

the income is considered.

12. In the case of Magma General Insurance Co. Ltd.

(Supra), the Hon'ble Supreme Court in paragraph

Nos.21.3 and 22 observed as under:

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"21.3 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.

           22.       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

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the love, affection, care and companionship of the deceased child."

In the aforesaid decision, the Hon'ble Apex Court has

observed that it is the right of the parents to get the

compensation under `Filial Consortium' and the

amount awarded to the parents is a compensation for

loss of love, affection, care and companionship of the

deceased child. Thus, the appellant nos.1 and 2 are

entitled to Rs.40,000/- each under the head of

consortium.

13. Since the deceased was aged about 23 years,

multiplier of 18 as per the decision rendered in the

case of Sarla Verma (Supra) to be applied and

hence the multiplier of 18 shall be applied in the

present case.

14. The next question for consideration is whether the

claimant is entitled to more amount of enhanced

compensation when the appellants have prayed for

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Rs.2,00,000/- as additional compensation with

interest @ 12% p.a. in the present appeal.

15. The learned advocate for the appellant has relied

upon the case of Nagappa v. Gurudayal Singh

(Supra), the Hon'ble Supreme Court in paragraph

no.21 observed as under:

"21. For the reasons discussed above, in our view, under the M.V.

                    Act,   there      is   no     restriction         that
                    Tribunal     /    Court       cannot          award

compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section

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(4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition."

The Hon'ble Apex Court has held that there is no

restriction that the Court cannot award compensation

amount exceeding the claimed amount. The Court

can award "just compensation" which is reasonable

on the basis of evidence produced on record. In the

present case, the appellants have proved by leading

documentary as well as oral evidence that the

deceased was earning Rs.3,000/- per month. In view

of this fact, on the concept of just and reasonable

compensation, the appellants can claim more

amount than claimed in the claim petition.

16. In the case of Harpreet Kaur (Supra), wherein the

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tribunal did not award consortium, however, the High

Court enhanced the claim under the head of

consortium and the Hon'ble Supreme Court even

further enhanced compensation under the head of

`Filial Consortium'.

17. The learned tribunal while applying the multiplier,

has erred in considering the age of the parents.

While applying the principle of the multiplier, the age

of the deceased to be considered and not of the

dependents. This view is fortified in the decision of

Amrit Bhanu Shali (Supra), wherein, in paragraph

no.17, the Hon'ble Apex Court has observed as

under:

"17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of

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compensation.

18. It is noteworthy to mention that the provisions of the

Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair'

compensation. It is a beneficial legislation which has

been framed with the object of providing relief to the

victims or their families. Section 168 of the Motor

Vehicles Act deals with the concept of 'just

compensation' which ought to be determined on the

foundation of fairness, reasonableness and

equitability. Although such determination can never

be arithmetically exact or perfect, an endeavor

should be made by the Court to award just and fair

compensation irrespective of the amount claimed by

the claimants.

19. In view of above discussions, the appellants are

entitled to the following amount as enhanced

compensation under the different heads:

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Sr. Name of the Head Compensation No. Amount (In Rs.) 1 Future loss of dependency 4,53,600/-

(Rs.3000+1200 (40%) = Rs.4,200 - Rs.2100/- (50%) = Rs. 2,100/- ; Rs.2100 x 12 x 18 = Rs.4,53,600/-)

2. Loss of consortium of two 80,000/-

dependents

3. Funeral expenses 15,000/-

Total Compensation of 5,48,600/- (-) Awarded Amount Rs.1,20,000/-

Enhanced Amount Rs.4,28,600/-

20. Therefore, total amount of compensation would come

to Rs.5,48,600/-, which is required to be awarded

with 7.5% p.a. interest from the date of claim petition

till its realisation, which would meet the ends of

justice. It is noted that the Tribunal has awarded

Rs.1,20,000/- to the claimant, therefore,

Rs.4,28,600/- (Rs.5,48,600/- - Rs.1,20,000/-) is

required to be enhanced with 7.5% p.a. interest.

21. For the reasons recorded above, the following order

is passed:

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21.1. The present appeal is allowed in above

terms.

21.2. The Insurance Company is directed to

deposit the enhanced amount Rs.4,28,600/- with

7.5% p.a. interest from the date of claim petition till

its realisation before the concerned Tribunal, within a

period of six weeks from the date of receipt of this

order.

21.3. The Tribunal shall disburse the entire

awarded amount lying in the FDR and/or with the

Tribunal, with accrued interest thereon if any, to the

claimants, by account payee Cheque, after proper

verification and after following due procedure.

21.4. While making the payment, the Tribunal

shall deduct the courts fees, if not paid, in

accordance with Rules / Law.

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21.5. Record and proceedings be sent back to

the concerned Tribunal, forthwith.

(D. M. DESAI,J) VATSAL