Gujarat High Court
Kantaben Wd/O Ashwinkumar Patel vs Vanrajsinh Chandubhai Gohil on 16 April, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/245/2024 JUDGMENT DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 245 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KANTABEN WD/O ASHWINKUMAR PATEL & ORS.
Versus
VANRAJSINH CHANDUBHAI GOHIL & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MR RATHIN P RAVAL(5013) 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 : 16/04/2024
ORAL JUDGMENT
1. By way of this Appeal, the Appellants-claimants have
challenged the judgment and award dated 03.07.2023
passed by the learned Motor Accident Claims Tribunal
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(Main), Panchmahals at Godhra in M.A.C.P. No.243
of 2020. The claimants are the widow, the children
and father of the deceased.
2. The facts giving rise to the present Appeal can be put
succinctly as under :-
On 28.09.2020, the deceased - Ashwinkumar
Ranchhodbhai Patel and his son Lokesh were on a
Motorcycle bearing Registration No.GJ-17-AQ-9796
and were going towards Santroad Village. When they
were passing near the crossing road of Orwada
Highway, they were knocked down owing to rash and
negligent manner of driving the Truck bearing
Registration No.GJ-01-DZ-4270 by the respondent
No.1. As a result, the deceased sustained serious
injuries and succumbed to the injury after
excruciating pain, shock and sufferings.
3. Learned Advocate for the appellants - claimants Mr.
Nishit A. Bhalodi submitted that the deceased was
doing farming and was also earning from tailoring
activities. His monthly income was stated to be more
than Rs.9,000/-. It is further submitted that
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unfortunately, the claimants could not place on
record any documentary evidence. It is further
submitted that in absence of any proof of the
earnings, the learned Tribunal could have taken the
assistance of Minimum Wages Schedule, to consider
the monthly income and accordingly, should have
considered the income. In addition, the prospective
rise should have been assessed to arrive at the future
dependency loss. It is further submitted that the
consortium loss has been granted by the learned
Tribunal, as per the as per the decision of the
Hon'ble Apex Court in the case of Magma General
Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram
reported in (2018) 18 SCC 130 and hence, the
claimants have no grievance to that amount.
4. Countering the above arguments, learned Advocate
for the respondent - Insurance Company Mr. Rathin
Raval submitted that cogent evidence is required to
be produced on record to substantiate the claim of
earning from farming and tailoring work and when
no such evidence has been produced, the income
assessed by the learned Tribunal is to be relied upon
and hence, it is urged that this Court may not
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interfere with the judgment and award of the learned
Tribunal.
5. Having heard the learned Advocates for the respective
parties and on perusing the records of the case, it
appears that the learned Tribunal has relied on the
First Information Report and Spot Panchnama and has
observed the negligence of the drivers of both the
vehicles. The learned Tribunal concluded on perusal
of Spot Panchnama - Exhibit 31 observing the
situation of the vehicles involved in the accident as
shown in the Panchnama, and accordingly, near the
turning of the road near Balupura Road and at a
crossed road a Truck bearing Registration No.GJ-01-
DZ-4270 and a motorcycle bearing Registration
No.GJ-17-AQ-9796 was also lying at the place of
accident. The head light and number plate were
found broken. The truck driver had failed to enter
into the witness box. However, considering the First
Information Report and the Panchnama, the learned
Tribunal was of the view that the owner of that the
motor cycle and owner of the truck dashed with each
other on the cross junction of the road. The learned
Tribunal was of the opinion that if the drivers of
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both the vehicles had taken due and sufficient care,
the road accident could have been averted.
6. Considering the nature of the vehicle, the learned
Tribunal observed that the driver of the truck could
have driven the vehicle at a reasonable speed and
thus, could have noticed traffic on the asphalted
road. Thus, in view of the learned Tribunal, the
inter-se liability of the truck driver and that of the
motor cyclist would fall in the ratio of 90% - 10%
respectively. Therefore, the deceased was attributed
with negligence of 10%.
7. The learned Tribunal has referred to the evidence of
the claimants that the deceased was earning from
farming and tailoring work. There is no evidence to
show any agricultural land or income from tailor job.
In absence of the income proof, the deceased could
have been assessed as per the Minimum Wages of the
State. Hence, taking into consideration the date of
accident is 28.09.2020, the minimum wages of the
deceased would be Rs.8,437/-. Considering 40% rise
in the prospective income, in view of the age of the
deceased being 40 years and being a self-employed
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person, the addition is required to be made.
Therefore, considering 40% rise it would come to
Rs.3,347.80 (40% of Rs.8,437/-). Therefore, the
monthly income would be Rs.8,437/- + Rs.3,347.80
= Rs.11,812/-
8. Deducting ¼ towards personal expenses, the future
loss of income would come to Rs.2,953/- (deduction
@ ¼ of Rs.11,812/-). Hence, Rs.11,812 minus
Rs.2,953/- comes to Rs.8,859/-. Therefore,
considering the multiplier of 16, the dependency loss
would be Rs.17,00,928/- (Rs.8,859/- x 12 months x
16 multiplier).
9. The learned Tribunal has granted consortium loss and
the amounts under the head of loss of estate and
funeral expenses considering the decisions of the
Hon'ble Apex Court in the case of Magma General
Insurance Co. Ltd. (supra) National Insurance
Company Limited v. Pranay Sethi and Others reported
in 2017 16 SCC 680.
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10. Thus, the computation can be made as under :-
Details Amount (Rs.)
Future loss of income 17,00,928/-
Consortium loss 2,00,000/-
Funeral Expenses 15,000/-
Loss of Estate 15,000/-
TOTAL 19,30,928/-
11. The learned Tribunal has awarded an amount of
Rs.14,09,360/- with rate of interest @ 9% per annum.
Therefore, the enhanced amount is Rs.5,21,568/-
(Rs.19,30,928/- minus Rs.14,09,360/-). The learned
Tribunal has assessed 10% contributory negligence of
the deceased which is required to be deducted from
the enhanced amount. Therefore, 10% deduction of
the enhanced amount of Rs.5,21,568/- would come to
Rs.52,156.80, say Rs.52,157/-. Hence, the enhanced
amount which becomes receivable is Rs.4,69,411/-
(Rs.5,21,568/- minus Rs.52,157/-). In the result, the
present respondent/s are directed to deposit the
amount within a period of EIGHT (8) WEEKS from
the date of receipt of writ of the order of this Court.
It is further directed that the claimants would be
entitled to receive the enhanced compensation with
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rate of interest @ 7.5% per annum from the date of
the application, till its realization.
12. The total amount be paid to the claimants. The
amount which falls in the share of the major
claimants be paid, while the amount which falls in
the share of the claimant No.4 (minor Lokesh
Ashwinkumar Patel) be placed in a Fixed Deposit
Receipt for a period of three years or till the
claimant No.4 attains majority.
13. In view of the above, the Appeal is allowed and
the judgment and award dated 03.07.2023 passed by
the learned Motor Accident Claims Tribunal (Main),
Panchmahals at Godhra in M.A.C.P. No.243 of 2020
stands modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
