Gujarat High Court
Krishnakumar Parsottambhai Kapadia vs Abubhai Ismailbhai Khafi on 13 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/692/2012 JUDGMENT DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 692 of 2012
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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KRISHNAKUMAR PARSOTTAMBHAI KAPADIA & Anr.
Versus
ABUBHAI ISMAILBHAI KHAFI & 1 other
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Appearance:
MR BHARAT V SHAH(3960) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1.1,1.2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/02/2024
ORAL JUDGMENT
1. The challenge has been given to the
judgment dated 26.08.2009 passed in M.A.C.P.
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No.165 of 2005 by Motor Accident Claims Tribunal
(Main), Jamnagar.
2. Mr. Hemal Shah, learned advocate for the
appellants submitted that the deceased was aged
about 24 years at the time of the accident. Mr.
Shah submitted that he was Manager in a
partnership firm and books of account from Exh.43
to 46 were produced to substantiate the income.
2.1 Advocate Mr. Shah submitted that the
Tribunal has erred in not granting the
prospective rise in income, and further an error
has been committed in applying the multiplier,
where as per the age of the deceased and the
schedule laid down in the case of Sarla Verma and
Others vs. Delhi Transport Corporation and
Another, reported in (2009) 6 SCC 121, the
multiplier would be 18. Mr. Shah further stated
that the consortium loss was required to be
granted to both the parents, who lost their
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earning son.
3. Advocate Mr. Maulik Shelat submitted
that the Tribunal has granted total compensation
of Rs.4,20,000/- and appropriate amount has been
considered under various other heads, thus,
stated that no indulgence is required of this
Court.
4. M.A.C.P. No.165 of 2005 was raised with
the fact that on 24.01.2005, the deceased was
going to Tejpur for the purpose of business on
scooter No.GJ-3-AD-2849, which was in the name of
his brother, claimant of M.A.C.P. No.187 of 2005.
They were on the left side of the road. At about
9:45 a.m., when they reached Jetpur-Dhoraji Road,
opposite Vishvas Cement Factory, the driver of
Dumper No.GTY-7156 came in full speed, driving
rashly and negligently dashed with scooter. As a
result of the accident, the deceased succumbed to
the injuries. A complaint being I-Cr.No.14/05 was
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filed with Jetpur City Police Station.
5. The Tribunal has considered the income
of Rs.5,000/- per month by considering the fact
that the deceased was attending the father's firm
and taking into consideration his experience of
about two years and his involvement in the
business, the amount of Rs.5,000/- was assessed,
which this Court considers to be in accordance
with the evidence on record; however, 40%
prospective rise in income was to be considered
as per judgment of National Insurance Company
Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157,
in the age below 40 years, since the applicant
would fall in the category of self employment.
Thus, accordingly his income would be considered
as Rs.7,000/- per month [5,000 + 2,000
(5,000x40/100)].
5.1 Since the deceased was bachelor, the
deduction of 1/2 of the amount is required to be
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made; thus the yearly future loss would come as
under:
Actual Income 5,000/-
Prospective 7,000/- [5,000 + 2,000 (40% rise)]
Income
1/2 7,000 / 2 = 3,500/-
Deduction
Yearly Future 42,000/- [7000-3,500 = 3,500 x 12]
loss
5.2 The multiplier applied would be 18;
hence, the loss of dependency would come to
Rs.7,56,000/- (42,000 x 18). Thus, accordingly
the claimants would be entitled to Rs.7,56,000/-
as loss of dependency.
5.3 Both the parents are required to be
granted consortium loss, hence, under the head of
consortium loss, the amount would come to
Rs.80,000/- (40,000 x 2).
5.4 Following the judgment of Pranay Sethi
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and Ors. (supra), under the head of loss to
estate and funeral expense, Rs.15,000/- each is
granted.
6. In view of the above, compensation under
different heads would be:
Heads Tribunal has Amount
granted
Loss of Rs. 3,90,000/- Rs. 7,56,000/-
Dependency
Consortium --- Rs. 80,000/-
Loss
Funeral Rs. 5,000/- Rs. 15,000/-
Expenses
Loss of Estate Rs. 10,000/- Rs. 15,000/-
Total Rs. 4,20,000/- Rs. 8,66,000/-
7. The Tribunal has awarded total
compensation as Rs.4,20,000/-. The claimant would
be entitled to get Rs.4,46,000/- (8,66,000 -
4,20,000) as enhanced compensation at the rate of
7.5%.
7.1 The enhanced amount be deposited before
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the concerned Tribunal within Eight weeks from
the date of receipt of writ of this order. The
total amount be paid to the claimants in equal
proportion by way of cheque or NEFT on
verification of identity.
8. In the result, the appeal is partly
allowed. The impugned judgment and award dated
dated 26.08.2009 passed in M.A.C.P. No.165 of
2005 by Motor Accident Claims Tribunal (Main)
Jamnagar, stands modified to the aforesaid
extent. No order as to costs.
(GITA GOPI,J)
Pankaj
