Gujarat High Court
Legal Heirs And Representatives Of ... vs Bhathibhai Shivabhai Parmar on 12 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1983 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
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 ?
==========================================================
LEGAL HEIRS AND REPRESENTATIVES OF DECEASED MUKESHBHAI
KANTIBHAI SOLANKI & ORS.
Versus
BHATHIBHAI SHIVABHAI PARMAR & ANR.
==========================================================
Appearance:
for the Appellant(s) No. 1.1,1.2,1.3,1.4,1.5
MR PRADEEP R MISHRA(10206) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/02/2024
ORAL JUDGMENT
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
1. The claimants are the legal heirs and
representatives of Mukeshbhai Kantibhai Solanki,
who have challenged the judgment of the Motor
Accident Claims Tribunal (Aux.) Anand dated
03.12.2019 in M.A.C.P. No.777 of 2014 praying for
enhancement.
2. Advocate Mr. R.G. Dwivedi for Advocate
Mr. Pradeep R.Mishra for the appellants submitted
that the income of the deceased has been
considered as Rs.4,500/-, as minimum wages.
Advocate Mr. Dwivedi contended that as per the
schedule for the date of accident as 03.11.2014,
it should be around Rs.6,000/-, as the claimant
was a farm labourer, and his age was 32 years,
thus, accordingly 40% rise in prospective income
was required to be added, as considered by the
Tribunal.
3. Advocate Mr. Dwivedi further stated that
the learned Tribunal has referred to the judgment
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
of Magma General Insurance Company Ltd. Vs. Nanu
Ram Alias Chuhru Ram & Ors., reported in (2018)
SCC 130 [2018 ACJ 2782], however, has not granted
money as consortium loss to the children and the
parents.
4. Per contra, Mr. Maulik Shelat for the
insurance company submitted that the claimants
are required to prove the income by way of cogent
evidence, and even otherwise, if the evidence is
to be considered, then the claimants had stated
that the deceased was getting Rs.200/- per day by
doing agriculture labour work, and, thus stated
that the learned Tribunal has rightly assessed
the compensation.
5. The facts pleaded for the accident
before the Tribunal shows that on 03.11.2014, the
deceased was on his motorcycle bearing
Registration No.GJ-23 AE-5088, and was on the
road from Bechri to Bharoda; at that time,
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
opponent no.1, came driving his Motorcycle
bearing Registration No.GJ-23 AP-8964, alleging
to be on the wrong side of the road, in a rash
and negligent manner, endangering the human life,
dashed with the motorcycle of the deceased. As a
result, he received grievous injuries and died
during the medical treatment.
6. The Tribunal has considered the FIR,
panchnama of scene of offence, inquest panchnama,
P.M. Note and R.C. Book of the offending vehicle,
even the insurance policy together with charge-
sheet, and has concluded about the negligence,
attributing 80% of the other offending
motorcyclist, while 20% of the deceased driver.
6.1 The income as per the minimum wages, if
taken on the date of accident as 03.11.2014,
would come around Rs.6,000/- per month. Hence,
this Court considers it appropriate to assess the
monthly income as Rs.6,000/-.
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
6.2 Considering the age of the deceased, 40%
prospective rise in income is assessed, and 1/4th
deduction is required to be made; thus the yearly
future loss would come as under:
Actual Income 6,000/-
Prospective 8,400/- [6,000 + 2,400 (40% rise)]
Income
1/4th 8,400 / 4 = 2,100
Deduction
Future 75,600/- [8,400-2,100 = 6,300x12]
Dependency
loss
6.3 The multiplier applied would be 16;
hence, the future dependency loss would come to
Rs.12,09,600/- (75,600 x 16). Thus, accordingly
the claimants would be entitled to Rs.5,99,940/-
as dependency loss.
7. In the case of Magma General Insurance
Company Limited Vs. Nanu Ram alias Chuhru Ram &
Ors., reported in (2018) 18 SCC 130, it has been
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
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
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
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,
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
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
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."
7.1 As per Magma General Insurance Company
Limited (supra), each individual claimant would
be entitled to the amount of Rs.40,000/-. Hence,
under the head of consortium loss, Rs.2,00,000/-
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
(40,000 x 5) is granted.
7.2 The amount of Rs.15,000/- under the head
of loss of estate and Rs.15,000/- under the head
of funeral expenses have been appropriately
granted by the learned Tribunal as per judgment
of Pranay Sethi and Ors. (supra).
7.3 In view of the above, compensation under
different heads would be:
Heads Tribunal has Amount
granted
Loss of Rs. 9,07,200/- Rs. 12,09,600/-
Dependency
Consortium Rs. 40,000/- Rs. 2,00,000/-
Loss
Funeral Rs. 15,000/- Rs. 15,000/-
Expenses
Loss of Estate Rs. 15,000/- Rs. 15,000/-
Total Rs. 9,77,200/- Rs. 14,39,600/-
7.4 The Tribunal has attributed 20%
negligence to the deceased, hence, the amount,
which gets deducted is Rs.2,87,920/- (14,39,600 x
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
20%); thus, the amount would come to
Rs.11,51,680/-. The Tribunal has awarded total
compensation, after deducting 20% negligence, as
Rs.7,81,760/- (9,77,200 - 1,95,440). Now, the
claimant would be entitled to get Rs.3,69,920/-
(11,51,680 - 7,81,760) as enhanced compensation
at the rate of 7.5%. The enhanced amount be
deposited before the concerned Tribunal within
Eight weeks from the date of receipt of writ of
this order.
7.5 It is stated that now the applicant no.5
- Champaben Kantibhai Solanki has died, let the
total amount of her share be paid to applicant
no.4 including his share, by Account Payee
Cheque/NEFT on verification of identity.
7.6 It is also stated that minor claimants
nos.2 and 3 have now turned into major, hence,
60% amount of their share be paid to them by
Account Payee Cheque/NEFT on proper verification
NEUTRAL CITATION
C/FA/1983/2020 JUDGMENT DATED: 12/02/2024
undefined
of identity and rest of 40% be deposited in any
nationalized bank in their names for a period of
two years, and thereafter be paid to them with
accumulated interest without reference to the
Court.
8. In the result, the appeal is partly
allowed. The impugned judgment and award dated
dated 03.12.2019 passed in M.A.C.P. No.777 of
2014 by Motor Accident Claims Tribunal (Aux.)
Anand, stands modified to the aforesaid extent.
No order as to costs. Record and Proceeding be
sent back to the concerned Court, if received.
(GITA GOPI,J)
Pankaj
