Gujarat High Court
Harkubhai Galjibhai Kamod vs Limajibhai Titabhai Kamod on 2 August, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1829 of 2019
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HARKUBHAI GALJIBHAI KAMOD & ANR.
Versus
LIMAJIBHAI TITABHAI KAMOD & ORS.
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/08/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellant/s - original claimant/s - legal
heirs of the deceased - Satishbhai Harkubhai Kamol, being aggrieved
and dissatisfied with the judgment and award dated 16.04.2018
passed by the Motor Accident Claims Tribunal (Aux.), Dahod in
Motor Accident Claim Petition No.110 of 2005, by which the Tribunal
has awarded compensation of Rs.3,31,274/- with 9% per annum
interest to the claimant/s, holding opponents liable, jointly and
severally.
2. Brief facts of the case are as under:
2.1 On 02-02-2005, deceased Satishbhai Harkubhai Kamol, was
going towards Sukhsar from Hingla village as pillion rider on the
motorcycle of opponent no. 1 bearing registration no. GJ-20-C- 1993,
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at that time opponent no. 1 driving the motorcyle in rash and
negligent manner and lost control over the motorcycle and applied
short brake hence bike sleep on the road as a result deceased
Satishbhai fallen down from the motorcycle and sustained sever
injuries on head. He was immediately shifted to the Jhalod
Government Hospital, he was referred to the Vadodara and on the
way to Vadodara on 02-02-2005 deceased Satishbhai died and on 03-
02-2005 postmortem carried out in the Sukhsar Government
Hospital. For this accident, the complaint was lodged with Fatepura
Police Station vide Ist C.R.No.7/2005.
2.2 Therefore, the legal heirs of the deceased have filed claim
petition seeking compensation of Rs.10,10,000/- with cost and
interest for unnatural and untimely death against the present
respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponents No.2 did not
choose not to appear and contest the claim petition before the
Tribunal. Opponent Nos. 1 and 3 have appeared and have filed its
written statement / objections at Exh.38 and 23 respectively by
disputing all the averments made by the claimant/s in the claim
petition.
2.3 Issues have been framed by the Tribunal. The oral as well as
documentary evidence were led by the rival parties before the
Tribunal. After considering the documentary as well as oral evidence
and submissions made at the bar, the Tribunal has partly allowed the
claim petition by awarding compensation as noted above.
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2.4 Being aggrieved and dissatisfied with the impugned judgment
and award passed by the Tribunal, the present appeal is preferred by
the claimant/s for enhancement.
3. Learned advocate the appellant/s - claimant/s has submitted
that the Tribunal has committed an error in not properly calculating
the amount of compensation. It is submitted that amount of award is
on lower side as the Tribunal has not properly considered the various
aspects; like income of the deceased, loss of consortium, funeral
expenses and loss of estate, negligence, liability and family
circumstances, etc. At the outset, he has relied upon the decision of
the Hon'ble Apex Court in the case of Govind Yadav vs. New India
Assurance Co. Ltd. reported in 2012 ACJ 28. It is submitted that
the deceased was working as electrician and earning Rs.6,000/- per
month. Considering the minimum wages prevailed in the year of
accident, and taking into account nature of work of the injured as
well as considering the submissions of learned advocate for the
appellant, income of the injured of Rs.2,200/- is required to be
considered. It is further submitted that looking to the age of the
deceased and keeping in view the ratio laid down by the Hon'ble
Apex Court in the case of National Insurance Company Limited
versus Pranay Shethi reported in (2017) 16 SCC 680, 40%
income should be added towards prospective income of the
deceased. It is also submitted that the Tribunal has committed an
error by awarding meager compensation under the head of loss of
estate and funeral expenses, which should be more in view of
decisions of Hon'ble Apex Court in the case of : (i) Magma General
Insurance Company Limited versus Nanu Ram and others
reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd.
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v. Somwati and others, reported in 2020 (9) SCC 644 and (iii)
United India Insurance Co. Ltd., versus Satinder Kaur @
Satwinder Kaur reported in (2021) 11 SCC 780. It is further
submitted that the deceased was married and therefore, he has left
the dependents in the family behind him. Therefore, the Tribunal has
committed error by not properly awarding compensation under the
head of loss of consortium. It is submitted that under other heads
except above, the Tribunal has rightly considered the amount of
compensation. It is submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and this
appeal may be allowed.
4. Per contra, learned advocate for contesting respondent No.3 -
insurance company has submitted that the impugned judgment and
award passed by the Tribunal is just and proper. The Tribunal has
rightly considered the income of the deceased. It is also submitted
that under the head of loss of estate and funeral expenses, the
Tribunal has rightly awarded compensation. It is also submitted that
under the head of loss of consortium, the Tribunal has considered
proper compensation. However, from the submissions made by
learned advocate for the appellant/s that the Tribunal has committed
certain errors, on this aspect, learned advocates for the respondent/s
has submitted that if this Court feels that there is some error in
calculation of the amount in view of settled position of law, in
awarding compensation by the Tribunal, then the Court may pass
appropriate order by considering the submissions made by learned
advocate for the appellant/s, in the interest of justice. It is submitted
that this appeal may be dismissed and no interference be made by
this Court.
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5. 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.
6.1 I have considered the submissions made by the rival parties. I
have perused the record and proceedings of the Tribunal. I have
gone through the impugned judgment and award passed by the
Tribunal. It is noted that the claimant has by and large claimed
enhancement towards income of the deceased, loss of consortium,
funeral expenses and loss of estate, negligence, liability and family
circumstances, etc. I have perused the judgments cited at the bar by
learned advocate for the appellants, which are helpful to the facts of
the present case. Furthermore, it transpires that the deceased was
working as electrician and earning Rs.6,000/- per month.
Considering the minimum wages prevailed in the year of accident,
and taking into account nature of work of the injured as well as
considering the submissions of learned advocate for the appellants,
and taking into account the decision of the Hon'ble Apex Court in the
case of Govind Yadav (supra), income of the injured of Rs.2,200/- is
required to be considered in absence of any documentary evidence.
Furthermore, looking to the age of the deceased at the time of
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accident, i.e. 21 years and considering the decision of the Hon'ble
Apex Court in the case of Pranay Shethi (supra), 40% rise should
be added as prospective income. Therefore, it would come to
Rs.3,080/- per month income of the deceased. Further, considering
the decision of Hon'ble Apex Court in the case of Sarla Verma
(supra) and Pranay Shethi (supra), 1/2 would be the deduction
towards personal expense, which is rightly considered by the
Tribunal. Therefore, it would come to Rs.1,540/- per month
multiplied by 12 months (annual income) and further multiplied by
18 multiplier keeping in view the decision of Hon'ble Apex Court in
the case of Sarla Verma (supra), it would come to Rs.3,32,640/- as
future loss of income, which should be awarded by the Tribunal.
6.2 Further, under the head of loss of consortium, the Tribunal has
awarded Rs.40,000/- only, which should be on higher side. It is not in
dispute that there are two dependents in the family. In view of the
decisions of Hon'ble Apex Court in the cases of : (i) Magma General
Insurance Company Limited versus Nanu Ram and others
reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd.
v. Somwati and others, reported in 2020 (9) SCC 644 and (iii)
United India Insurance Co. Ltd., versus Satinder Kaur @
Satwinder Kaur reported in (2021) 11 SCC 780, under the head of
loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%)
would be proper to award, therefore, Rs.48,400/- x 2 dependents =
Rs.96,800/- would be the compensation under the head of loss of
consortium.
6.3 Further, under the head of loss of estate and funeral expenses,
if we award Rs.18,150/- each, would be the just and proper
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compensation, considering the decisions of Hon'ble Apex Court in the
case of Magma General Insurance Company Limited (supra).
Furthermore, under other heads except the above, the amount
awarded by the Tribunal is not disputed by learned advocate for the
appellant/s, otherwise also, the Tribunal has rightly considered the
amount under those heads.
6.4 Therefore, total compensation would be as under, which the
claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 3,32,640/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 96,800/-
Total... 4,65,740/-
Less : Amount which is 3,31,274/-
already awarded
Additional amount which is 1,34,466/-
awarded
7. Therefore, I hold that the claimant/s are entitled to get the
total amount of compensation of Rs.4,65,740/- with 9% p.a. interest
from the date of filing the claim petition till its realisation, which
would meet the ends of justice. Rest of the direction(s) of the
Tribunal shall remain same. The Tribunal has already awarded
Rs.3,31,274/- and, therefore, remaining amount of Rs.1,34,466/-
would be the enhanced amount of compensation payable to the
claimant/s.
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8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 16.04.2018 passed
by the Motor Accident Claims Tribunal (Aux.), Dahod in Motor
Accident Claim Petition No.110 of 2005 is modified to the aforesaid
extent.
8.3 The Insurance Company is directed to deposit the enhanced
amount Rs.1,34,466/- with 9% 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.
8.4 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 / NEFT / RTGS, after
proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
