Gujarat High Court
Snehalben Nayneshbhai Baria vs Divyang Mukeshbhai Modhiya on 19 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3489/2022 ORDER DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3489 of 2022
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SNEHALBEN NAYNESHBHAI BARIA & ANR.SNEHALBEN NAYNESHBHAI
BARIA
Versus
DIVYANG MUKESHBHAI MODHIYADIVYANG MUKESHBHAI MODHIYA &
ORS.
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Appearance:
MR NILESH M SHAH(780) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/02/2024
ORAL ORDER
1. Challenged is the judgment dated 14/12/2021 passed by
the Motor Accident Claims Tribunal (Auxiliary), Panchmahals
at Godhra in MACP No.580 of 2017.
2. Mr. Nilesh M. Shah, learned advocate for the appellants
stated that the learned Tribunal was required to consider the
minimum wages schedule in absence of income being proved
by way of any documentary evidence. Mr. Shah, learned
advocate stated that the income derived from agriculture
work would not be accounted since no income tax is paid on
the same and hence it would be difficult for the claimant to
prove the income. Mr. Shah, learned advocate stated that it
was urged before the learned Tribunal that deceased was
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C/FA/3489/2022 ORDER DATED: 19/02/2024
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doing private job and was earning Rs.10,000/- and from
agriculture work Rs.5,000/-, however, the learned Tribunal
has considered only Rs.5,000/- per month. Mr. Shah, learned
advocate stated that income is assessed by way of assumption
without any support of any specific calculation regarding the
income. Thus, learned advocate has stated that the standard
which is applicable by way of minimum wages schedule
should have been adopted by the learned Tribunal. Learned
advocate has stated that on the date of an accident being
09/09/2017, the minimum wages was Rs.7,946/- and as per
the age of 20 years of the deceased, 40% rise was required to
be considered and as he was married and had a wife and
minor as a dependents and hence 1/3rd was to be deducted as
personal expenses and consortium loss was also required to
be granted to both the dependents.
3. Ms. Kirti Pathak, learned advocate submitted that in
absence of any cogent evidence on record to prove the
income, an assessment of Rs.5,000/- made by the learned
Tribunal which is just and proper and stated that the
consortium loss has been granted to the widow.
4. The facts of the claim petition before the learned
Tribunal states that on 09/09/2017, the deceased was on the
side of the road and driving his vehicle i.e. the motorcycle
bearing registration no.GJ-17-BE-0867 with moderate speed,
at about 13:30 hours, when he was passing Limdi-Dahod road,
at village Kalimahudi, at that time, one car bearing
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C/FA/3489/2022 ORDER DATED: 19/02/2024
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registration no.GJ-20-N-3956 came in rash and negligent
manner and because of the excessive speed lost control over
the vehicle and dashed with the motorcycle and owing to the
said accident, the deceased received fatal injuries and
succumbed to death.
5. Negligence aspect has been considered by the Tribunal
and sole negligence of the car driver was concluded by the
Tribunal.
6. The deceased was 20 years of age at the time of an
accident as could be proved by way of school leaving
certificate produced at Exh.31. Learned Tribunal has granted
40% rise in the income. However, as stated by Mr. Shah,
learned advocate, assistance of minimum wages schedule was
required to be taken into consideration. The minimum wages
as per the schedule of the State Government shows Rs.7,946/-
and by adding 40% rise i.e. Rs.3,178/-, total income would
come to Rs.11,124/-. Deducting 1/3rd being Rs.3,708/-, the
monthly dependency would come to Rs.7,416/- and annually
the same would come to Rs.88,992/-. Applying multiplier of
18, dependency loss would come to Rs.16,01,856/-. Since
both the claimants are widow and minor child, they are
entitled to get consortium as per the decision in case of
Magma General Insurance Company Limited Vs. Nanu
Ram alias Chuhru Ram & Ors., reported in (2018) 18
SCC 130. Hence, under the said head, Rs.80,000/- is just to
be granted. Further, in view of the judgment in case of
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C/FA/3489/2022 ORDER DATED: 19/02/2024
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National Insurance Company Limited Vs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680, Rs.15,000/- for loss to estate
and Rs.15,000/- for funeral expenses is just to be granted.
Hence, total amount of compensation would come as under:
Loss of dependency Rs. 16,01,856/-
Consortium loss Rs. 80,000/-
Loss to estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Total Rs.17,11,856/-
7. The Tribunal has awarded an amount of Rs.10,78,000/-.
Hence, the claimants would be entitled to the enhanced
amount of compensation of Rs.6,33,856/- with interest at the
rate of 7.5% per annum from the date of filing of the claim
petition till its realization. The enhanced amount is directed to
be deposited within eight weeks from the date of receipt of
writ of this Court which would be given to the claimants in
80:20 ratio.
8. From the said amount, 70% of the amount be given to
the claimant no.1-widow on due verification of the identity
while rest of 30% be deposited in the fixed deposit with any
nationalized bank. While the amount of the share of the minor
be deposited in the FDR in the name of the minor till she
attains majority. The periodic interest amount on the said
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FDR be paid to the mother as a guardian of the minor child as
well as from the FDR in her name and the same should be
used for the education and welfare of the child.
9. The impugned judgment and award be modified
accordingly. The present appeal is partly allowed. Registry is
directed to send the record and proceedings back to the
Tribunal, if received.
(GITA GOPI,J)
ILA
