Gujarat High Court

Heirs Of Deceased Chetankumar Babulal ... vs Rajkumar Radhesing Rajput on 23 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/4057/2017                                     JUDGMENT DATED: 23/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4057 of 2017


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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         HEIRS OF DECEASED CHETANKUMAR BABULAL MAHETA
                             Versus
              RAJKUMAR RADHESING RAJPUT & 2 other(s)
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,1.1,1.2
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 23/01/2024

                               ORAL JUDGMENT

1. The claimants, widow and minor as heirs

deceased have challenged the judgment dated

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27.06.2017 passed by Motor Accident Claims

Tribunal No.210/2015 disputing the compensation

granted.

2. Mr. Paresh M.Darji, learned advocate for

the claimants submitted that the deceased was

serving as Manager in Bharat Platochem Co. at

Halol, and receiving Rs.11,000/- per month, but

since the income could not be proved by examining

the proprietor, the Tribunal assessed monthly

income of Rs.5,000/- only, and has granted 30%

rise for future prospect, and has relied on the

P.M. Note to consider the age. Mr. Darji

submitted that according to driving license, the

date of birth of the deceased is 11.06.1975, and,

thus contended that his age, at the time of

death, would be 35 years, hence, as per judgment

of National Insurance Company Ltd. v. Pranay

Sethi and Ors., AIR 2017 SC 5157, 40% prospective

rise is required to be assessed.

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3. While countering the argument, Advocate

Mr. V.C. Thomas submitted that to pray for the

income, as pleaded, necessary cogent evidence is

required, and when the person working was under

the proprietorship, the officer of the Company is

required to be examined, or an accountant to

prove the salary, and when no such exercise has

been undertaken, Mr. Thomas submitted that the

assessment of Rs.5,000/- income is just and

proper.

4. The case of vehicular accident, as was

noted by the Tribunal suggests that on

14.07.2014, the deceased was driving his

motorcycle and was going from Halol to Vadodara,

and when he reached the place of accident at the

periphery of village Lilora, Taluka: Halol on

Halol Vadodara Road, a truck bearing registration

No.HR-45-A-1871, came from rear side, in

excessive speed, in rash and negligent manner

endangering human life, and while overtaking

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another vehicle, the Truck driver lost control on

the Truck, and dashed with the motorcycle.

5. The Tribunal on examining the evidence

on record with inquest panchnama and P.M. Note

had observed 90% negligence of the truck driver

and 10% of the deceased, since the deceased had

not worn the headgear at the time of accident.

6. Advocate Mr. Darji submitted that facts

of the case suggests that Truck had dashed the

motorcycle from rear side. The Truck driver had

lost the control and, therefore, the accident had

occurred.

6.1 Countering the same, referring to

section 129 of the M.V. Act, 1988, Mr. Thomas

submitted that the rider of the motorcycle is

required to wear the Helmet on the public road,

as Helmet affords protection to the driver, and

stated that had he worn the Helmet, probably, he

could have survived; thus, stated that 10%

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negligence attributed to the motorcyclist is on

the evidence on record. Mr. Thomas submitted that

such negligent act of the driver is always to be

recorded as to set up precedent for the others so

as would follow the provisions of law and

maintain their own safety, and stated that 10%

negligence is required to be considered.

7. This Court is in concurrence with the

argument of Advocate Mr. Thomas, since section

129 of the M.V. Act, mandates wearing of headgear

at the public place. Such provisions ensures

safety of individual, hence, 10% negligence

attributed to the deceased would be in accordance

to the law.

8. The income has been considered as

Rs.5,000/-. The admitted fact on record that the

deceased was serving as a Manager in Bharat

Platochem Co. at Halol, taking into consideration

the date of accident, it would be just and proper

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to consider his monthly income as Rs.7,500/-. The

deceased was 39 years of age at the date of

accident, hence, 40% prospective rise is to be

considered. The dependents are two in number,

therefore, 1/3rd amount is deducted; thus the

yearly future loss would come as under:

Actual Income 7,500/-

Prospective           10,500/- [7,500 + 3,000 (40% rise)]
Income
 1/3rd                10,500 / 3 = 3,500
Deduction

Yearly Future 84,000/- [10,500-3,500 = 7,000x12] Loss

8.1 The multiplier applied would be 15;

hence, the dependency loss would come to

Rs.12,60,000/- (84,000 x 15). Thus, accordingly

the claimants would be entitled to Rs.12,60,000/-

as dependency loss.

8.2 The deceased died leaving behind the

widow and minor, they would be entitled for

consortium loss as per Magma General Insurance

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Company Ltd. Vs. Nanu Ram Alias Chuhru Ram &

Ors., reported in (2018) SCC 130 [2018 ACJ 2782],

thus, under the head of consortium loss, the

claimants would be entitled to get Rs.80,000/-.

8.3 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).

9. In view of the above, compensation under

different heads would be:

Heads                                                           Amount
Loss of Dependency                                 Rs.    12,60,000/-
Consortium Loss                                    Rs.          80,000/-
Funeral Expenses                                   Rs.          15,000/-
Loss of Estate                                     Rs.          15,000/-
                       Total                       Rs.    13,70,000/-

10. The liability of 10% of the deceased is

required to be deducted; thus, the compensation,

which the claimants would be entitled, would be

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Rs.12,33,000/- [13,70,000 - 1,37,000

(13,70,000/10%)]. The Tribunal has assessed total

compensation as Rs.8,50,120/-, however, after

deducting 10% negligence, total amount of

Rs.7,65,108/- was awarded by the Tribunal. Thus,

now the claimants would be entitled to get