Gujarat High Court
Mohamadkha Basirkha Pathan vs Mafatbhai Bababhai Zala on 19 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3647/2019 JUDGMENT DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3647 of 2019
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MOHAMADKHA BASIRKHA PATHANMOHAMADKHA BASIRKHA PATHAN
& ORS.
Versus
MAFATBHAI BABABHAI ZALA & ANR.MAFATBHAI BABABHAI ZALA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
NOTICE SERVED BY DS for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/02/2024
ORAL JUDGMENT
1. By way of this Appeal, the Appellants-claimants have
challenged the judgment and award dated 23.06.2017
passed by the learned Motor Accident Claims Tribunal
(Auxi.), Bharuch in M.A.C.P. No.104 of 2010.
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2. The facts giving rise to the present Appeal can be put
succinctly as under :-
On 16.01.2010, the deceased was riding his motor
cycle bearing Registration No.GJ16-AH-2626 on the
left side of the road with moderate speed and was
proceeding towards Panchbatti Station from
Mohammadpura alongwith a pillion rider -
Kamaluddin Gulam Mohd. At about 8.30 pm where
they had reached Fata Talav, Masjid, the pillion rider
told that some things were left at his home therefore,
the pillion rider got down from the motor cycle and
the deceased alone had started riding his motorcycle
to return to the home of Kamaluddin. At that point
of time, the respondent No.1 who was driving the
State Transport Bus bearing Registration No.GJ-18-V-
939 came from the opposite side in excessive and
uncontrollable speed and in a rash and negligent
manner and knocked down the deceased's motor
cycle. The deceased succumbed to the injuries on
account of the vehicular accident. The learned
Tribunal after considering the First Information Report
and the Panchnama has opined that the Bus Driver of
the State Transport Bus is solely negligent for the
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accident.
3. Learned Advocate for the appellants-claimants Mr.
Nishit A. Bhalodi submitted that the evidence had
come on record that the deceased had undertaken
various courses in Computer through Aptech
Computer Education and was working as 'Trainee
Software Analyst' in a company called Media
Infocom. The deceased was receiving as Salary an
amount of Rs.5,250/- per month. The witness -
Jishant Said Ahamad Jamida who was the
Administrator of Media Infocom was examined at
Exhibit 28, who informed the Court that it is
Registered Partnership Firm incorporated since the
year 2000 and was providing Software Development
Programme to its client. The deceased was working
since the year 2008 as a 'Trainee Software Analyst'
in the Company and was getting paid Rs.5,250/- per
month.
4. Learned Advocate Mr. Nishit A. Bhalodi further
submitted that the Certificate was issued as Exhibit
29 which was believed by the learned Tribunal as the
income of the deceased. It is also submitted that
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the decision of the Hon'ble Apex Court in the case of
National Insurance Company Limited v. Pranay Sethi
and Others reported in 2017 16 SCC 680 has not
been considered to grant a just compensation with
respect to the future prospective rise in income.
5. A notice was again issued to Gujarat State Road
Transport Corporation (GSRTC) but no one appears.
6. Heard learned Advocate for the appellants and
perused the records of the case. The learned Tribunal
has considered the income of the deceased as
Rs.5,250/- per month by relying upon the evidence
on record. The deceased was aged 23 years as per
the Birth Certificate at Exhibit 31. As per the
claimants, the accident is stated to have occurred on
account of the rash and negligent driving of the
respondent No.1 - the State Transport Corporation
Bus Driver.
7. The income of the deceased was required to be
assessed by keeping in mind the decision in the case
of Pranay Sethi and Others (supra) where in case of
employment in the form of permanent nature and
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since the deceased was having a fixed salary and was
below 40 years, then 40% prospective rise in income
is to be considered, which would come to Rs.7,350/-
per month (i.e. Rs.5,250/- + 40% of Rs.5,250/-).
8. The deceased died unmarried, therefore, ½ of the
amount would be required to be deducted towards
his personal expenses. Therefore, the monthly
dependency would be Rs.3,675/- (Rs.7,350/- divided
by 2). The dependency loss thus would come to
Rs.7,93,800/- (Rs.3,675/- x 12 x 18).
9. The learned Tribunal has awarded an amount of
Rs.5,67,000/- under dependency loss. The enhanced
amount would be Rs.2,26,800/- (Rs.7,93,800/- minus
Rs.5,67,000/-).
10. Under rest of the heads, this Court does not find
any reason to upset the compensation amount
granted.
11. In the result, the present respondent/s are
directed to deposit the enhanced amount within a
period of EIGHT (8) WEEKS from the date of receipt
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of writ of the order of this Court. It is further
directed that the claimants would be entitled to
receive the enhanced compensation @ 7.5% per
annum from the date of the application.
12. After deposit of the above enhanced amount, it
is directed that the appellant-claimants be paid the
total amount by account payee cheque / NEFT /
RTGS, in the following manner, after carrying the
necessary procedures for verification of their
identities.
Claimant No.1 (Father) : 30%
Claimant No.2 (Mother) : 70%
13. In view of the above, the Appeal is allowed and
the judgment and award dated dated 23.06.2017
passed by the learned Motor Accident Claims Tribunal
(Auxi.), Bharuch in M.A.C.P. No.104 of 2010 stands
modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
