Gujarat High Court
Sonalben Wd/O Samirbhai vs Narottambhai Dahyabhai Patel on 13 February, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/2091/2016 JUDGMENT DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2091 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SONALBEN WD/O SAMIRBHAI & 2 other(s)
Versus
NAROTTAMBHAI DAHYABHAI PATEL & 3 other(s)
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Appearance:
MR MI HAVA(348) for the Appellant(s) No. 1,2,3
MR.CHANAKYA BHAVSAR(6316) for the Appellant(s) No. 1,2,3
MR HS MUNSHAW(495) for the Defendant(s) No. 4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 13/02/2024
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. Present appeal arises out of the impugned judgment and
award dated 13.01.2016 passed by the learned Motor Accident
Claims Tribunal (Auxi), Vadodara in MACP No.89 of 2001 under
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Section 173 of the Motor Vehicles Act.
2. The brief facts of the case is reproduced as under:
2.1. The appellant no.1 is the wife of the deceased Samir
Hashmukhbhai Parikh whereas appellant nos.2 and 3 are the
minor daughter and son of the deceased. On 21.11.2000
deceased along with his mother Indiraben Parikh was traveling
in Gujarat State Road Transport Corporation bus bearing
registration No.GJ-18-4968. The deceased was on his way to
visit Chandod for performing after death rituals. It is the case of
the original claimants that when said bus had reached near
village Palasvada i.e. had approached on Palasvada-Bhilapur
Highway, the offending vehicle i.e. truck bearing registration
no.GJ-16-U-8958 driven by the respondent no.2 came from the
opposite direction, in rash and negligent manner and at an
excessive speed and dashed with the ST Bus, resulting an
accident. As a result of such impact, both the deceased as well
as his mother Indiraben who were traveling in the ST bus
sustained injuries and died on the spot. The other passengers
who were also on the bus suffered severe injuries. The complaint
was lodged regarding the aforesaid accident against the
respondent no.2 driver of the offending truck, which was
registered as CR- No.I-219 of 2000 with the Dabhoi Police
Station.
2.2. The heirs of the deceased i.e. present appellants- original
claimants have approached the Motor Accident Claims Tribunal,
Vadodara by filing petition under Section 166 of the Act on
30.01.2001, which was registered as MACP No.89 of 2001.
2.3. The Tribunal upon appreciation of the aforesaid case put
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forward by the original claimants had issued summons upon the
opponent no.1 i.e. owner of the offending truck, opponent no.2-
driver of the offending truck, opponent no.3 -Insurance
Company of the offending truck and opponent no.4- Gujarat
State Road Transport Corporation. On service of summons, the
learned advocates had appeared on behalf of the respective
parties. No written statements were filed by the opponent nos. 1
and 2 against the claim petition, whereas, opponent no.3
Insurance Company had filed its written statement at Exh.16
objecting to the averments made in the claim petition. The
specific defence was raised about the issue of negligency. The
claimants have placed on record the various documentary
evidence. Apart from the documentary evidence, the claimants
have also examined the witnesses. The oral evidence of the wife
of the deceased viz. Sonalben wd/o Samirbhai Parikh has come
on record at Exh.26 and the deposition of the witness -
Satishkumar Ramechshchandra Bhatt has come on record at
Exh.32. The details of the documentary evidence is reproduced
as under:
Particulars Exh. No.
Original Death Certificate of Samir 36
Hashmukhabhai Parikh
Birth certificate of the son Dhaivat of the 28
deceased
Birth Certificate of the daughter Rinal of the 29
deceased
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Mark-sheet in respect of deceased Samirbhai 42
for 5th Semester in Diploma in Mechanical
Engineering
Salary Slip of the deceased for the month of 30
October 2000
Salary certificate issued by FAG Bearings India 34
Limited
2.4. Considering the pleadings of the respective parties, the
Tribunal has framed following issues at Exh.25/1.
"1.Whether the claimants prove that deceased
died in a vehicular accident due to negligent
driving by the drivers of vehicles involved in the
accident ?
2. Whether the claimants are entitled to get
any compensation? If yes, what amount and from
whom ?
3. What order and award ?"
The Tribunal has answered the above issues as under:
"1. Yes, in affirmative.
2. As per the final order.
3. As per the final order."
2.5. The Tribunal at the end of the trial has arrived at a
conclusion that the truck has contributed to the accident to the
extent of 90% , whereas, the driver of the ST bus has contributed
to the extent of 10%, thereby, refusing to accept the contention
raised by the advocate for the Insurance Company of the
offending truck to hold the negligency of the driver of the ST bus
to the extent of 30%.
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2.6. On the aspect of computation of quantum of compensation,
the Tribunal has taken into consideration the oral evidence of
the claimants as well as witnesses examined by the claimants.
The pay slip of the deceased for the month of October 2000 at
Exh.30 has been examined by the Tribunal which goes to
suggest that the deceased was serving as Technician with a
private company i.e. FAG India Limited. The gross salary of the
deceased is shown as Rs.9600/- per month whereas net salary is
reflected as Rs.6810/- per month after various deductions. The
witness viz. Satishkumar Rameshchandra Bhatt who is serving
in the legal department of the aforesaid company has deposed at
Exh.32 and has confirmed the aforesaid fact. After taking into
consideration the rulings of the Hon'ble Supreme Court on the
aspect of income of the deceased, keeping in mind the head of
salary in light of the proof of Income Tax and the entitlement of
the various allowances and perks, the Tribunal has determined
the salary of Rs.9600/- for the purpose of actual loss and
prospective loss of income. The birth certificate of the deceased
has been proved on record at Exh.41, which indicates his date of
birth as 27.07.1964 and has concluded that the deceased was
aged 36 years at the time of accident. Considering the age of the
deceased, the Tribunal has observed that in case the deceased
had survived, he would have served minimum of 22 years of
service and can safely be inferred that pay of the deceased would
have gradually increased during the remaining period of service
till his date of retirement. Having noticed the aforesaid facts, the
Tribunal has held the claimants entitled for 50% addition in the
income on account future prospects in light of the decision of the
Hon'ble Supreme Court in the case of Sarla Verma (supra).
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Thus, the Tribunal has considered the additional income of 50%
to be added in the income of the deceased and monthly future
prospective income of the deceased is determined as Rs.9600/- +
Rs.4800/- (50%) and accordingly annual income of the deceased
is determined as Rs.14,400/- x 12 : Rs.1,72,800/-. The Tribunal
has further noticed that the deceased was survived with the
widow and two children and in light of the principle laid down by
the Hon'ble Supreme Court in the case of Sarla Verma (supra), a
deduction of 1/3rd is taken into consideration out of total
income of the deceased. Thus, after deduction Rs.5600/- i.e.
(1/3rd of Rs.1,72,800/-) dependency loss is calculated as
Rs.1,15,200/- per annum. Considering the age of the deceased
to be 36 years at the time of accident, the Tribunal has adopted
multiplier of 15 and has thus calculated total loss of dependency
as Rs.17,28,000/- (Rs.1,15,200/- x 15) and the Tribunal has
held original claimants entitled to compensation of
Rs.17,28,000/-. Apart from the aforesaid compensation, the
Tribunal has considered the claims under the description of loss
of consortium as Rs.20,000/-, loss of estate as Rs.20,000/- and
funeral expenses as Rs.15000/- and has computed total amount
of compensation as Rs.17,83,000/-.
3. Considering the overall facts of the case and the evidence
brought on record, the Tribunal has partly allowed the claim
petition preferred by the original claimants - appellants herein
holding them entitled to recover an amount of Rs.17,83,000/- as
compensation from all the opponents no. 1 to 4 jointly and
severally together with running interest at the rate of 9% pa from
the date of petition till its actual realization along with
proportionate cost. Further directions are issued by the Tribunal
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with regard to apportionment of the award amount in the ratio of
60:20:20 respectively.
4. Being aggrieved and dissatisfied with the aforesaid
judgment and award, the original claimants have approached
this Court by filing present appeal seeking enhancement of the
award amount.
5. Learned advocate Mr. M I Hava has appeared on behalf of
the appellants- original claimants and Mr. Yogi Gadhia, learned
advocate has appeared on behalf of the respondent -Insurance
Company.
6. Learned advocate for the appellant has, at the outset,
submitted that the original claimants are seeking modification
mainly under the head of loss of consortium, loss of estate and
funeral expenses in light of the subsequent judgments of the
Hon'ble Supreme Court in the case of National Insurance
Company Limited vs. Pranay Sethi reported in (2017) 16 SCC
680 and in the case of Magma General Insurance Company
Limited vs. Nanu Ram Alias Chuhru Ram reported in (2018) 18
SCC 130. It is submitted by learned advocate that indisputably
deceased was survived by his wife and two minor children. In
such circumstances, the present appellants- original claimants
are entitled to seek enhancement of the amount of compensation
under the head of loss of consortium i.e. an amount of
Rs.40,000/- each is required to be awarded. He has, therefore,
prayed for amount of Rs.1,20,000/- under the head of loss of
consortium as against an amount of Rs.20,000/- awarded by the
Tribunal under the aforesaid head. As regards the amount
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awarded under the head of loss of estate is concerned, learned
advocate has pointed out that though the Tribunal has awarded
a sum of Rs.20,000/- under the aforesaid head, in light of the
relevant observations of the Hon'ble Supreme Court in the case
of Pranay Sethi (supra) the amount is required to be reduced to
the extent of Rs.15,000/- (without 10% increased every year). On
the aspect of funeral expenses, learned advocate has submitted
that Tribunal has rightly considered and awarded sum of
Rs.15,000/- under the aforesaid head. By making aforesaid
submissions, learned advocate has urged this Court to
determine the total amount of compensation as Rs.18,78,000/-
as against Rs.17,83,000/- awarded by the Tribunal. Lastly,
learned advocate has urged this Court to award 9% interest on
the additional amount of compensation which may be
determined by this Court, from the date of filing of claim petition
till its realization.
7. On the other hand, Mr. Gadhia, learned advocate for the
respondent- Insurance Company has fairly accepted the
aforesaid submissions of the learned advocate for the appellants-
original claimants as he is unable to dispute the aforesaid
figures in light of the principle laid down by the Hon'ble Supreme
Court in the respective cases relied upon by the original
claimants. However, learned advocate has urged this Court to
consider the interest at the rate of 7.5% as against the prayer
made by the learned advocate for the appellants at the rate of
9%.
8. Having heard the learned advocates for the respective
parties and having perused the impugned judgment and award
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as well as decisions relied upon by the learned advocates for the
respective parties, the ground of challenge in the present appeal
is mainly on the aspect of amount of compensation awarded
under the head of loss of consortium and loss of estate.
Indisputably, the deceased was aged about 36 years at the time
of accident and was survived by the wife and his minor children.
The judgment of the Hon'ble Supreme Court in the case of
Pranay Sethi (supra) has set out the various amounts to be
awarded as compensation under the conventional heads in case
of the death of a person in the motor accident. The aforesaid
decision of the Hon'ble Supreme Court has been re-affirmed by
the Hon'ble Supreme Court in its subsequent decision in the
case of Magma General Insurance Company Limited (supra). The
relevant extract of the judgment is reproduced herein below.
"8. The grounds of challenge by the Insurance
Company are dealt with seriatim.
8.1. With respect to the issue of Future Prospects, a
Constitution Bench of this Court in Pranay Sethi
(supra) has held that in case the deceased was self− 2
(2017) 16 SCC 680 employed or on a fixed salary, and
was below 40 years of age, an addition of 40% of the
established income should be granted towards Future
Prospects.
8.1.1. Future Prospects are to be awarded on the
basis of:
i. the nature of the deceased's employment; and
ii. the age of the deceased.
8.1.2. In the present case, it is claimed by the family
of the deceased that he was engaged in making
namkeen, and was earning a monthly income of about
Rs. 15,000 per month. However, no evidence was
brought on record to establish the same. The MACT as
well as the High Court assessed the income of the
deceased on the basis of the minimum wage of an
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unskilled worker. The nature of his employment being
taken as a self− employed person.
8.1.3. The deceased was 24 years old at the time of
the accident. Hence, future Prospects ought to have
been awarded at 40% of the actual income of the
deceased, instead of 50% as awarded by the High
Court.
8.1.4. Hence, the judgment of the High Court on this
issue is modified to that extent.
8.2. With respect to the issue of deduction from the
income of the deceased, the Insurance Company
contended that the deduction ought to have been ½,
and not 1/3rd, since the deceased was a bachelor.
8.2.1. This issue has been dealt with in paragraph 32
of the judgment in Sarla Verma (supra) wherein this
Court took the view that where the family of the
bachelor is large and dependent on the income of the
deceased, as in a case where he has a widowed
mother and large number of younger non− earning
sisters or brothers, his personal and living expenses
may be restricted to one− third, as contribution to the
family will be taken as two−third.
8.2.2. Considering that the deceased was living in a
village, where he was residing with his aged father
who was about 65 years old, and Respondent No. 2 −
an unmarried sister, the High Court correctly
considered them to be dependents of the deceased,
and made a deduction of 1/3rd towards personal
expenses of the deceased.
8.2.3. The judgment of the High Court is, therefore,
affirmed on this count.
8.3. With respect to the income of the deceased, as the
family could not produce any evidence to show that
the income of the deceased was Rs. 15,000 per month,
as claimed, the High Court took his income to be Rs.
6,000, which is marginally above the minimum wage
of an unskilled worker at Rs. 5,342.
8.3.1. This finding is also not being interfered with.
8.4. The Insurance Company has submitted that the
father and the sister of the deceased could not be
treated as dependents, and it is only a mother who
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can be dependent of her son. This contention
deserves to be repelled. The deceased was a
bachelor, whose mother had pre−deceased him. The
deceased's father was about 65 years old, and an
unmarried sister. The deceased was contributing a
part of his meagre income to the family for their
sustenance and survival. Hence, they would be
entitled to compensation as his dependents.
8.5. The Insurance Company has contended that the
High Court had wrongly awarded Rs. 1,00,000
towards loss of love and affection, and Rs. 25,000
towards funeral expenses.
8.5.1. The judgment of this Court in Pranay Sethi
(supra) has set out the various amounts to be
awarded as compensation under the conventional
heads in case of death. The relevant extract of the
judgment is reproduced herein below :
"Therefore, we think it seemly to fix reasonable sums.
It seems to us that reasonable figures on conventional
heads, namely, loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/−, Rs.
40,000/− and Rs. 15,000/− respectively. The principle
of revisiting the said heads is an acceptable principle.
But the revisit should not be fact−centric or
quantum−centric. We think that it would be condign
that the amount that we have quantified should be
enhanced on percentage basis in every three years
and the enhancement should be at the rate of 10% in
a span of three years."
(Emphasis supplied)
8.5.2. As per the afore−said judgment, the
compensation of Rs. 25,000 towards funeral expenses
is decreased to Rs.15,000. The amount awarded by
the High Court towards loss of love and affection is,
however, maintained. 8.6 The MACT as well as the
High Court have not awarded any compensation with
respect to Loss of Consortium and Loss of Estate,
which are the other conventional heads under which
compensation is awarded in the event of death, as
recognized by the Constitution Bench in Pranay Sethi
(supra).
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8.6.1. The Motor Vehicles Act is a beneficial and
welfare legislation. The Court is duty−bound and
entitled to award "just compensation", irrespective of
whether any plea in that behalf was raised by the
Claimant.
8.6.2. In exercise of our power under Article 142, and
in the interests of justice, we deem it appropriate to
award an amount of Rs. 15,000 towards Loss of
Estate to Respondent Nos. 1 and 2.
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.
8.7.1. In legal parlance, "consortium" is a
compendious term which encompasses 'spousal
consortium', 'parental consortium', and 'filial
consortium'.
8.7.2. 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. (JT 2013(8) SC 288)
8.7.3 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."
8.7.4 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."
8.7.5. 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 3
Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9
SCC 54 4 BLACK'S LAW DICTIONARY (5th ed. 1979)
family of the deceased. The greatest agony for a parent
is to lose their child during their lifetime. Children are
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valued for their love, affection, companionship and
their role in the family unit.
8.7.6. 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.
8.7.7. 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.
8.7.8. Parental Consortium is awarded to children
who lose their parents in motor vehicle accidents
under the Act. A few High Courts have awarded
compensation on this count5. However, there was no
clarity with 5 Rajasthan High Court in Jagmala Ram
@ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4)
RLW 3368 (Raj); Uttarakhand High Court in Smt. Rita
Rana & Anr. v. Pradeep Kumar & 6 Ors. respect to the
principles on which compensation could be awarded
on loss of Filial Consortium.
8.7.10. The amount of compensation to be awarded as
consortium will be governed by the principles of
awarding compensation under 'Loss of Consortium' as
laid down in Pranay Sethi (supra).
89.7.11. In the present case, we deem it appropriate
to award the father and the sister of the deceased, an
amount of Rs. 40,000 each for loss of Filial
Consortium."
9. In light of the aforesaid decisions, we are convinced that
the appellants - original claimants are entitled to enhancement
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of amount of compensation sought for under the head of loss of
consortium as laid down in the case of Pranay Sethi (supra).
Hence, we deem it appropriate to award an amount of
Rs.40,000/- each under the head of loss of consortium to the
wife and minor children of the deceased. So far as the amount of
compensation awarded under the head of loss of estate is
concerned, the same is modified from Rs.20,000/- to
Rs.15,000/- in light of the relevant observation of the Hon'ble
Supreme Court in the case of Pranay Sethi (supra) as well as in
the case of Magma General Insurance Company Limited (supra).
7. In light of the above discussion, the amount of
compensation under the different heads is re-worked as under:
Description Amount (Rs.) awarded Amount awarded
by the Tribunal by this Court
Loss of dependency 17,28,000/- 17,28,000/-
Loss of consortium 20,000/- 1,20,000/-
Loss of estate 20,000/- 15,000/-
Funeral Expenses 15,000/- 15,000/-
Total amount of 17,83,000/- 18,78,000/-
Compensation
8. In light of the aforesaid computation of the total amount of
compensation, the appellants- original claimants held entitled to
enhance amount of Rs.95,000/-(Rs.17,83,000/- minus
Rs.18,78,000/-) to be realized from the opponents nos. 1 to 4
herein jointly and severally in terms of the negligency
determined by the Tribunal of the drivers of the respective
vehicles involved in the accident. Needless to clarify that in
absence of any challenge on the aspect of negligency of both the
drivers by either of the parties by filing any appeal, the said
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issue has attained the finality and is not interfered with.
Considering the fact that accident relates to year 2001, the
enhance amount of compensation is awarded with interest at the
rate of 7.5% from the date of filing of claim petition till its
realization. The impugned judgment and award dated
13.01.2016 passed by the learned Motor Accident Claims
Tribunal (Auxi), Vadodara in MACP No.89 of 2001 is hereby
modified to the aforesaid extent. The Tribunal is at liberty to
disburse the deposited amount amongst claimants in light of the
directions as noted by the Tribunal in the impugned judgment
and award. With this, present appeal stands partly allowed in
above terms.
sd/-
(BIREN VAISHNAV, J)
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
