Gujarat High Court

Rekhaben Wd/O. Dilipbhai Jethabhai ... vs Mahendrabhai Jivabhai Bharvad on 30 January, 2024

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        C/FA/505/2017                                         ORDER DATED: 30/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 505 of 2017

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     REKHABEN WD/O. DILIPBHAI JETHABHAI HADIYEL - HEIR OF DECD.
                  DILIPBHAI J HADIYEL & 3 other(s)
                               Versus
            MAHENDRABHAI JIVABHAI BHARVAD & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR R G DWIVEDI(6601) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 30/01/2024

                                    ORAL ORDER

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellants -

original claimants, being aggrieved and dissatisfied with the common judgment and award dated 30.06.2016 passed by the

Motor Accident Claims Tribunal (Aux.), Panchmahals at

Godhra in Motor Accident Claim Petition No.168 of 2012, by

which the Tribunal has awarded compensation of Rs.5,08,500/-

with 7.5% per annum interest to the claimants, holding

Opponents i.e. owner and insurance company liable, jointly

and severally.

2. Brief facts of the case are as under:

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2.1 On 12.01.2012, deceased Dilipbhai was travelling

as a pillion rider on motorcycle No. GJ-17-AD-6188 driven by

opponent No.1 in rash and negligent manner with an

uncontrollable speed. Due to excessive speed, the motorcycle

slept down and result thereof, Dilipbhai sustained grievous

injuries causing death. Complaint of the said incident was

lodged before the Godhra Taluka Police Station being C.R. - I

No.8 of 2012. Therefore, a claim petition was filed by the

claimants, being the legal heirs of the deceased, to get the

compensation of Rs.8 lakhs.

2.2 Notices were served to the opponents. Opponent

No.1 and Opponent No.3 - insurance company have appeared

and disputing all the averments made by the claimants in

the claim petition.

2.3 The Tribunal has framed the issues. The oral as

well as documentary evidence, mentioned in Para : 4 of the

impugned award, were led by the rival parties before the

Tribunal. After considering the various documentary as well

as oral evidence and submissions made at the bar, the

Tribunal has partly allowed the claim petition by awarding

compensation as noted above.

2.4 Hence, the present appeal by the appellants -

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original claimants for enhancement.

3. Learned advocate for appellants - original

claimants has submitted that the Tribunal has committed an

error in passing the impugned award. He has submitted that

the Tribunal ought to have taken into consideration the real

and actual income of the appellant while calculating the

amount of compensation. He has submitted that the Tribunal

has not taken into consideration the future prospective

income which should be considered as 30% and calculated the

income of the deceased, as the deceased was aged about 40

years at the time of accident. He has submitted the Tribunal

ought to have taken into consideration the fact that it was a

fatal case. He has submitted that the deceased was the only

bread-earner of the family. He has submitted that the

Tribunal has awarded meager amount towards loss of

consortium, pain, shock and suffering, loss of estate and

funeral expenses. He has submitted that the present appeal

may be allowed and the amount of compensation be

enhanced.

4. Per contra, learned advocate for the respondent No.3- insurance company has mainly contended that the

evidence of age and income of the deceased was not produced

on record and therefore, the income of the deceased was

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considered as notional. He has submitted that the Tribunal

has rightly awarded compensation towards loss of consortium,

loss of estate and funeral expenses. He has submitted that

no further amount may be awarded to the claimants. He has

submitted that this appeal may be dismissed.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation. It

is a beneficial legislation which has been framed with the

object of providing relief to the victims or their families.

Section 168 of the Motor Vehicles Act deals with the concept

of 'just compensation' which ought to be determined on the

foundation of fairness, reasonableness and equitability.

Although such determination can never be arithmetically

exact or perfect, an endeavor should be made by the Court

to award just and fair compensation irrespective of the

amount claimed by the claimants.

6.1 I have considered the submissions made by the

rival parties. I have perused the record and proceedings of

the Tribunal. I have gone through the impugned judgment

and award passed by the Tribunal.

6.2 From record, it transpires that the Tribunal has

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committed gross error of calculating the notional income of

Rs.3,500/- which should be considered as Rs.4,600/- per

month, as the deceased was indisputably earning Rs.6,000/-

per month. Accordingly, the yearly income of the deceased

would be Rs.55,200/- and by adding prospective income of

25% since the deceased was aged about 40 years at the time

of accident, it would come to Rs.13,800 and total income

would be Rs.69,000/-. From the said amount, one fourth

amount is required to be deducted being the personal

expenses i.e. Rs.17,250/- and therefore, Rs.51,750/- would be

the total income of the deceased which is required to be

considered.

6.3 Further, looking to the age of the claimant, i.e. 40

years at the time of accident and considering the decision of

the Hon'ble Apex Court in the case of Sarla Verma versus

Delhi Transport Corporation reported in (2009) 6 SCC 121,

14 multiplier would be just and proper to award. Therefore,

considering the income as noted above Rs.51,750/- x 14

(multiplier) = Rs.7,24,500/- would be the amount under the

head of loss of dependency, to be awarded to the claimants.

6.4 Further, the claimants have lost their bread-earner

of the family at the young age. Two children are minor and

they have lost their beloved father at the time when they

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are in dire need of his love and shelter. The father has also

lost his son. If the deceased will be alive, he can perform his

duty towards the claimants and breeze his love and shelter

to them as discussed by the learned trial Court. Since there

are four claimants, considering the very observation of the

learned Tribunal, Rs.40,000/- each should be awarded to the

claimants, which would come to Rs.1,60,000/- total towards

the head of loss of consortium.

6.5 Further, since the deceased was the bread-earner

of the family, the amount of Rs. 15,000/- should be awarded

towards loss of estate. Further, after the accident, the

deceased was initially taken to the General Hospital, Godhra

for the treatment of injuries sustained due to vehicular

accident and thereafter, he was transferred at Ahmedabad for

further treatment, but he was expired during the treatment.

Therefore, considering the circumstances at that time, the

learned Tribunal has rightly awarded Rs.7,500/- towards pain,

shock and suffering to the claimants.

6.6 Further, the Tribunal has awarded Rs.10,000/-

towards funeral and transportation expenses, which should be

Rs.15,000/- as he died during the treatment at Ahmedabad

and the resident of the deceased is at Godhra.

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6.7 Therefore, total compensation would be as under,

which the claimants are entitled to get:

                          Particulars                        Amount (Rs.)

       Loss of Dependency                                             7,24,500/-

       Loss of Estate                                                    15,000/-

       Pain, shock & suffering                                             7,500/-

       Loss of Consortium                                             1,60,000/-

       Funeral Expenses & transportation                                 15,000/-

                                                 Total...               9,22,000/-

Therefore, I hold that the claimant is entitled to

get the total amount of compensation of Rs.9,22,000/- with

7.5% p.a. interest from the date of filing the claim petition

till its realization, which would meet the ends of justice. Rest

of the direction(s) of the Tribunal remain same. The Tribunal

has already awarded Rs.5,08,500/-, therefore, remaining

amount of Rs.4,13,500/- would be the enhanced amount of

compensation payable to the claimants.

7. For the reasons recorded above, the following order

is passed.

7.1 The present appeal is partly allowed.

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