Gujarat High Court
Chaudhari Ramjibhai Kesharbhai vs Chaudhari Dashrathbhai Pratapbhai on 2 August, 2024
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C/FA/2184/2010 JUDGMENT DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2184 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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CHAUDHARI RAMJIBHAI KESHARBHAI & ORS.
Versus
CHAUDHARI DASHRATHBHAI PRATAPBHAI & ORS.
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1,2,3
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 3
MS HINA DESAI(1023) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/08/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of
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Motor Vehicles Act, 1988, is preferred by the appellant/s -
original claimant/s - legal heirs of the deceased -
Jaswantbhai Ramjibhai Chaudhari, being aggrieved and
dissatisfied with the judgment and award dated 06.10.2009
passed by the Motor Accident Claims Tribunal (Aux.),
Mehsana in Motor Accident Claim Petition No.552 of 2006,
by which the Tribunal has awarded compensation of
Rs.3,63,600/- with 7.5% per annum interest to the claimant/s,
holding Opponents No.2 and 3 i.e. owner and insurance
company of the Jeep bearing registration No.GJ-2-K-3974
liable, jointly and severally. It is noted that the Tribunal has
dismissed the claim petition qua respondent No.4 i.e.
insurance company of Suzuki Bike bearing registration No.GJ-
2-S-6433. It is also noted that the Tribunal has held 60%
negligence of the Jeep and 40% negligence of the motorcycle.
2. Brief facts of the case are as under:
2.1 That on 11.05.2006 at about 11:00 hours, deceased
- Jaswantbhai Ramjibhai Chaudhari was sgoing from his
village Dela towards Mehsana driving Suzuki Motorcycle
bearing registration No.GJ-2-S-6433. When he reached at
Cross roads by Manav Ashram and the Petrol Pump,
opponent No.1 - driver of the Jeep bearing registration
No.GJ-2-K-3974 came with the jeep in rash and negligent
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manner and collided with the said motorcycle. Due to that,
deceased sustained grievous injuries. Therefore, he was shifted
to the Civil Hospital, Mehsana and then to Lions Hospital at
Mehsana, where he succumbed to the injuries. Therefore, the
legal heirs of the deceased - parents and widow have filed
claim petition seeking compensation of Rs.12 lakhs 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.1 and 2 - driver and owner have chosen not to appear
and contest the claim petition before the Tribunal. Opponent
No.3 - Insurance Company has appeared and has filed its
written statement / objections by disputing all the averments
made by the claimant in the claim petition.
2.3 The Tribunal has framed the issues. 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.
2.4 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
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appeal is preferred by the claimant/s for enhancement.
3.1 Learned advocate for the appellant/s - claimant/s
has submitted that the Tribunal has committed an error in
not properly calculating the amount of compensation. He has
submitted that amount of award is on lower side as the
Tribunal has not properly considered the various aspects; like
prospective income of the deceased, negligence, liability and
family circumstances, etc. He has submitted that the deceased
was aged about only 23 years at the time of accident and
was doing agriculture work and cattle breeding work. He has
submitted that at the relevant point of time, his monthly
income was Rs.3,000/-. He has further submitted that the
learned Tribunal has not properly considered the prospective
income, deduction of personal expenses looking to the age of
the deceased and multiplier. He has submitted that therefore,
considering the loss of dependency, it would be calculated as
Rs.5,000/- as monthly income plus 40% prospective income
minus 1/3 as personal expenses multiplied by 12 months and
multiplied by 18 multiplier would be calculated for awarding
compensation under the head of future loss, which should be
awarded to the claimants by the learned Tribunal.
3.2 He has further submitted that the Tribunal has
considered the negligence of the jeep and motorcycle to the
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extent 60%-40%, respectively, which should be less i.e. 10%
on the part of the motorcyclist and 90% of the Jeep. He has
also submitted that the accident has occurred at Cross-roads
which is wide enough and the offending vehicle is a big
vehicle than the motorcycle, therefore, the liability of a bigger
vehicle should be more. The Tribunal has overlooked this
aspect while deciding the negligence.
3.3 He has further submitted that considering the
general and non-pecuniary damages, the learned Tribunal
should award Rs.18,150/- each towards loss of estate and
funeral expenses. He has also submitted that towards loss of
consortium, there are three dependents and therefore, it
would be awarded Rs.48,400/- should be awarded as per the
decision of the Hon'ble Apex Court in the case of United
India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder
Kaur reported in (2021) 11 SCC 780.
3.4 He has submitted that the compensation is
required to be enhanced by modifying the award impugned
accordingly and this appeal may be allowed.
4.1 Per contra, Mr. Mehta, learned advocate for the
contesting respondent - Insurance Company has submitted
that the impugned judgment and award passed by the
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Tribunal is just and proper. The Tribunal has rightly
considered the income of the deceased, the age of the
deceased, the dependency and future aspect of income. He
has submitted that under the head of loss of estate and
funeral expenses, the Tribunal has rightly awarded
compensation. He has submitted that the amount under the
head of loss of consortium is just and proper. He has
submitted that this appeal may be dismissed and no
interference be made by this Court.
4.2 Learned advocate Ms.Desai for the respondent -
insurance company of motorcycle, against whom, the Tribunal
has rejected the claim petition, has submitted that there is
liability of the insurance company and the Tribunal has
exonerated it. Therefore, it is a formal party to the litigation.
She has submitted that appropriate order may be passed.
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.
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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. From the record, it
transpires that the deceased was aged about 23 years and
was doing agriculture activities and cattle breeding work and
his monthly income was Rs.3,000/-, though pleaded more
before the Tribunal but without evidence as observed by the
Tribunal, at the relevant point of time, which would be just
and proper. Therefore, it should be considered as monthly
income of the deceased. Hence, it would come to Rs.3,000/-
per month and by adding 40% prospective income, as
calculated by the learned Tribunal, it would come to
Rs.1,200/- and therefore, total income comes to Rs.4,200/- per
month. Since the deceased is aged about 23 years and there
are three dependents, 1/3 would be proper to be deducted as
personal expenses and therefore, it would come to Rs.1,400/-.
Hence, the income would come to Rs.2,800/- per month and
therefore, yearly, it would come to Rs.33,600/- and applying
18 multiplier as per the schedule of the Motor Vehicles Act
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as well as the ratio laid down by the Hon'ble Apex Court in
the case of Sarla Verma versus Delhi Transport Corporation
reported in (2009) 6 SCC 121, it would come to Rs.6,04,800/-
as future loss, which is required to be awarded to the
claimants.
6.2 Further, looking to the nature of accident, the
involvement of the vehicles, deposition of eye-witness as well
as the fact that the deceased got married before 11 days
from the date of accident and also the fact that the
motorcycle is a smaller vehicle than the jeep, the negligence
on the part of the jeep and motorcycle would be 70%-30%
respectively, which would be justifiable, instead of 60%-40%
as held by the Tribunal. Therefore, future loss of
Rs.6,04,800/- minus 30% negligence on the part of the
motorcyclist i.e. Rs.1,81,440/-, which finally future loss would
come to Rs.4,23,360/- which should be awarded as future loss
of income to the claimants.
6.3 Considering the judgment in the case of Pranay
Sethi (supra), the general and non-pecuniary damages under
the head of loss of estate and funeral expenses, the amount
should be awarded of Rs.18,150/- under each head
respectively.
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6.4 Further, there are three dependents to the
deceased. Therefore, as per the decision of the Hon'ble Apex
Court in the case of United India Insurance Co. Ltd., versus
Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC
780, Rs.40,000/- consortium to each dependent and 10% rise,
which comes to Rs.48,400/- as consortium to each dependent,
which total comes to Rs.1,45,200/-, which should be awarded
to the claimants.
6.5 Further, the Tribunal has awarded Rs.5,000/-
under the head of pain, shock and suffering as the deceased
was admitted in the hospital immediately and after six
hours, he succumbed to the injuries. Therefore, the same is
justifiable and need not be altered.
6.6.1 At this stage, it would not be out of way to
mention that it is a general practice that the percentage of
negligence attributed to the deceased is deducted from the
total amount of compensation awarded under various heads.
However, a question would arise whether the amount
awarded under the heads of loss of consortium, loss of estate
and funeral expenses, which are categorized as non-pecuniary
damages, should be considered at the time of proportionately
deducting the amount by calculating the percentage of
negligence or not ?
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6.6.2 Before answering this question, a reference to the
judgment in the case of Pranay Sethi (supra) is required to
be made wherein it is mentioned by the Hon'ble Supreme
Court in paragraph 48 on the point of consortium as under:
"48. ...The Court enhanced the same on
the principle that a formula framed to
achieve uniformity and consistency on a
socio-economic issue has to be contrasted
from a legal principle and ought to be
periodically revisited as has been held in
Santosh Devi (supra). On the principle of
revisit, it fixed different amount on
conventional heads. What weighed with the
Court is factum of inflation and the price
index. It has also been moved by the
concept of loss of consortium. We are
inclined to think so, for what it states in
that regard. We quote:-
"17. ... In legal parlance, "consortium" is the
right of the spouse to the company, care,
help, comfort, guidance, society, solace,
affection and sexual relations with his or her
mate. That non-pecuniary head of damages
has not been properly understood by our
courts. The loss of companionship, love, care
and protection, etc., the spouse is entitled to
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get, has to be compensated appropriately.
The concept of non-pecuniary damage for loss
of consortium is one of the major heads of
award of compensation in other parts of the
world more particularly in the United States
of America, Australia, etc. English courts
have also recognised the right of a spouse to
get compensation even during the period of
temporary disablement. By loss of
consortium, the courts have made an attempt
to compensate the loss of spouse's affection,
comfort, solace, companionship, society,
assistance, protection, care and sexual
relations during the future years. Unlike the
compensation awarded in other countries and
other jurisdictions, since the legal heirs are
otherwise adequately compensated for the
pecuniary loss, it would not be proper to
award a major amount under this head.
Hence, we are of the view that it would
only be just and reasonable that the courts
award at least rupees one lakh for loss of
consortium."
6.6.3 While understanding the above paragraph, it is
clear that the "consortium" is the right of the spouse to the
company, care, help, comfort, guidance, society, solace,
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affection and sexual relations with his or her mate.
Therefore, this Court is of the view that the amount awarded
under this head should not be considered at the time of
deducting the proportionate amount of negligence held on the
part of the deceased. The negligence was of the deceased and
the spouse/parents/children, as the case may be, are not
responsible for the same and still they suffer for no fault of
theirs. Therefore, if the amount awarded under this head is
considered for deduction, then it will mean that they have
also contributed to the negligence of the deceased. Even the
same analogy can be applied for the compensation to be
awarded under the head of loss of estate and funeral
expenses and they also should not be considered for the
purpose of deduction. Hence, the answer to the above
question would be that the amount awarded under the head
of loss of consortium, funeral expenses and loss of estate
should not be considered for deduction.
6.7 The amount awarded under the head of pain,
shock and suffering, if the deceased is hospitalized for some
period before he died, as is in the case on hand, should be
considered for deduction as the pain is suffered by him due
to some negligence on his part and therefore proportionate
deduction is to be done in the amount awarded under such
head.
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6.8 Keeping the above principle in mind, if we revert
back to the amount of compensation to be awarded to the
claimants in this case, as discussed herein above, the amount
awarded under the head of future loss of income and the
amount awarded under the head of pain, shock and suffering
should be considered for deduction and the amount awarded
under the heads of loss of consortium, loss of estate and
funeral expenses should not considered for deduction.
Accordingly, the amount to be awarded to the claimants in
this case will be as follows:
Particulars Amount (Rs.)
Future Loss of Income 4,23,360/-
[Rs.6,04,800/- minus Rs.1,81,440 (30%)]
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,45,200/-
Pain, shock and suffering 3,500/-
[Rs.5,000/- awarded by the Tribunal minus
Rs.1,500/- (30% negligence of the deceased)]
Total... 6,08,360/-
Less : Amount which is already awarded 3,63,600/-
Additional amount which is awarded 2,44,760/-
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6.9 The learned Tribunal has held the deceased
negligent to the extent of 40% and the remaining amount of
60% is ordered to be deposited by the insurance company
accordingly, however, as the negligence of the deceased is
fixed at 30% and 70% of the insurance company by way of
this judgment, the 10% amount of compensation which is
deposited less by the opponents is ordered to be deposited by
the insurance company along with the enhanced amount of
Rs.2,44,760/- as stated hereinabove, along with proportionate
costs and interest, within a period of four weeks from the
date of receipt of this order.
7. Therefore, I hold that the claimant/s are entitled
to get the total amount of compensation of Rs.6,08,360/- with
7.5% 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 remain same. The Tribunal
has already awarded Rs.3,63,600/-, therefore, remaining
amount of Rs.2,44,760/- would be the enhanced amount of
compensation payable to the claimant/s.
8. For the reasons recorded above, the following order
is passed.
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8.1 The present appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the
enhanced amount Rs.2,44,760/- 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.
8.3 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 / NEFT / RTGS, after proper verification and
after following due procedure.
8.4 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
