Gujarat High Court

Indraba Dilipsinh Waghela vs Balvantsinh Hetubha Waghela on 9 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/3689/2010                               JUDGMENT DATED: 09/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3689 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                  INDRABA DILIPSINH WAGHELA & 4 other(s)
                                  Versus
                BALVANTSINH HETUBHA WAGHELA & 5 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MR SHAILESH C SHARMA(3450) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,5
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 09/02/2024

                             ORAL JUDGMENT

1. The challenge is given by the claimants to the

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judgment and award dated 30.11.2009 passed by the

MACT (Aux), Gandhidham in MACP no.243/2008 mainly

on the ground of deduction towards the personal

expenses and multiplier applied.

2. Learned advocate Mr. Hiren Modi for the appellants

submitted that the amount towards the personal

expenses deducted ought to have been in accordance

to the judgment in the case of Sarla Verma Vs.

Delhi Transport Corporation & Anr., (2009) 6 SCC

121 and the multiplier was to be considered

accordingly as laid down in the case of Sarla

Verma (supra) and because of that, Advocate Mr.

Modi submitted that the amount under the head of

loss of dependency has not been correctly

computed. It is submitted that one-third deduction

has been made by the Tribunal and the multiplier

of 16 is adopted which does not assess just

compensation amount and thus, stated that

indulgence of this Court would be necessary in the

matter.

3. Learned advocate Mr. Vibhuti Nanavati and Mr.

Mazmudar for the respective insurance companies

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submitted that the compensation amount awarded by

the learned Tribunal is just and proper and

requires no interference of this Court and hence,

submitted that the present appeal may be

dismissed.

4. Facts of the case suggest that on 17.4.2008, the

deceased was traveling in jeep bearing

registration no. GJ-12 Y-3260 on Rapar Road to

take care of Juvar in the jeep. It is stated that

the opponent no.1 - jeep driver was driving the

vehicle in a rash and negligent manner in full

speed and when they came near Anandpar Village at

about 8.30, opponent no.4 came driving the

rickshaw bearing registration no. GJ-12 Z-7189 in

full speed rashly and negligently and dashed the

jeep. Since the jeep was also in full speed, the

deceased got flung to the ground. The angle of the

rickshaw struck on the chest of the deceased and

other parts of the body. Thereafter, he was taken

to the Government hospital, where he was declared

dead.

5. The Tribunal had considered the income of the

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deceased as unskilled employee and had assess

monthly income of Rs.6,079/-, which is in

accordance to the minimum wages schedule.

Considering the annual income of Rs.72,948/-

including prospective rise of Rs.36,474/-, income

was considered as Rs.1,09,422/-. However, it

appears that the amount deducted towards personal

expenses is not in accordance to the dependency of

the claimants who are five in number. Thus, as per

the judgment in the case of Sarla Verma (supra),

one-fourth of the amount is required to be

deducted towards personal expenses which would be

Rs.27,355/- and thereafter, the amount which was

given for dependency loss would be Rs.82,067/-. It

appears that the learned Tribunal has also erred

in applying the multiplier which should be

actually 15 as laid down in the case of Sarla

Verma (supra). Hence, by applying the same, total

amount would come to Rs.12,31,005/-.

6. Consortium loss is required to be granted to the

widow as well as four minors as per the decision

in the case of Magma General Insurance Company

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Limited Vs. Nanu Ram alias Chuhru Ram & Ors.,

reported in (2018) 18 SCC 130.

7. In the case of Magma General Insurance Company

Limited (supra), it has been observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society,

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discipline, guidance and training."

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.

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

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

8. Hence, under the head of consortium loss, an

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amount of Rs.2,00,000/- is granted (Rs.40,000/- x

5). The amount under the head of loss of estate is

just and proper as per the decision in the case of

National Insurance Company Limited Vs. Pranay

Sethi & Ors. reported in (2017) 16 SCC 680 but

funeral expenses of Rs.2,000/- granted by the

Tribunal is not as laid down in the case of Pranay

Sethi (supra), wherein Rs.15,000/- is considered

as just amount and hence, under the head of

funeral expenses, an amount of Rs.15,000/- is

awarded. In the result, the compensation is

calculated in the following terms:-

Rs.12,31,005/- Loss of dependency Rs. 2,00,000/- Loss of consortium Rs. 15,000/- Loss of estate Rs. 15,000/- Funeral expenses Rs.14,61,005/- Total compensation

9. As the Tribunal has granted compensation of

Rs.11,94,200/- with interest at the rate of 9% per

annum, the claimants would be entitled to the

enhanced amount of compensation of Rs.2,66,805/-

with interest at the rate of 7.5% per annum from

the date of filing of the claim petition till its

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realization. The enhanced amount is directed to be

deposited within eight weeks from the date of

receipt of writ of this Court.