Gujarat High Court

Tejalkumari Kartikkumar Shah vs Eklakh Shah Salim Shah on 12 June, 2024

                                                                                            NEUTRAL CITATION




      C/FA/3950/2021                                        ORDER DATED: 12/06/2024

                                                                                             undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3950 of 2021

==========================================================
                 TEJALKUMARI KARTIKKUMAR SHAH & ORS.
                                Versus
                    EKLAKH SHAH SALIM SHAH & ORS.
==========================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2,3,4,5,6 - claimants
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3 - Insurance Co.
MR SHIVANG M SHAH(5916) for the Defendant(s) No. 1 - Driver
RULE UNSERVED for the Defendant(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 12/06/2024
                                 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 impugned judgment and award dated 14.09.2021

passed by the Motor Accident Claims Tribunal (Aux.)

Navsari, in Motor Accident Claim Petition No.178 of

2014, by which the Tribunal has awarded compensation

of Rs.9,03,150/- with 9% per annum interest to the

claimant, holding the opponents i.e. driver, transport

and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

2.1. On 16.01.2014, at 10:00 p.m., deceased Kartikkumar

was going from Navsari to Bilimora, driving his own

Bullet Motorcycle bearing registration No.GJ-15-AN-7888

and he was driven his motorcycle left side of road, in a

moderate speed and following the traffic rules and when

they reached near the place of incident, at that point of

time, one Car No.DN-09-H-2482, driven by Opponent

No.1, came in rash and negligent manner, endangering

human life, without following traffic rules, and dashed

with the motorcycle of the deceased and as a result of

which, the deceased sustained injuries. Firstly, he was

taken to the Das Hospital for medical treatment,

thereafter shifted to the Orange Hospital for further medical treatment as an indoor patient and the deceased

was passed away during the treatment on 17.01.2014.

The complaint with regard to said incident has been

lodged before the Gandevi Police Station vide Ist

C.R.No.11/2014. It is further the case of Kartikkumar

that at the time of accident, he was 32 years old and

doing the business of Goyam Medicine, Arnath

Distributor & Akshay Traders and earning monthly

income of Rs.20,000/-. Under these circumstances, under

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

various heads, the claimants have claimed compensation

of Rs.20,00,000/- with costs and interest at the rate of

18% p.a. from the date of filing of claim petition till

actual realization from the opponents, jointly and

severally.

2.2. Notices were served to the opponents. Opponent

Nos.1 and 2 have appeared through their advocate and

filed their reply at Exh.16. Opponent No.3 has also

appeared and filed its written statement at Exh.53 by

disputing all the averments made by the claimant in the

claim petition.

2.3. The Tribunal has framed the issues at Exh.22. The oral as well as documentary evidence 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. Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

appeal has been preferred by claimants before this Court

for enhancement of compensation.

3. Heard learned advocates appearing for the respective

parties.

4.1. Learned advocate Mr. Paresh M. Darji for the

appellant - original claimants has submitted that the

Tribunal has erred in granting the amount of

compensation, which is on lower side by not considering

the oral as well as documentary evidence produced on

record of case, thereby committed error in passing of

judgment and order on very lower side. Furthermore, he

has submitted that the Tribunal has erred in not appreciating the aspect that the Kartikkumar expired

and total number of dependents - claimants are six in

number. The learned tribunal believed income of the

deceased only for Rs.4,000-00 per month, which is very

lower side. Furthermore, he has submitted that the

Tribunal has erred in not considering the aspect that the

deceased was an educated person and was holding degree

of Diploma in Pharmacy and certificate of degree is

produced below Exh.33. Considering the educational

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

qualification of the deceased, the Tribunal ought to have

believed at least Rs.20,000/- p.m. income of deceased.

Furthermore, he has submitted that the Tribunal has

erred in not believing the documentary evidence produced

on record below Exh.34 is passbook of deceased, exhibit

36 receipt of LIC premium paid by deceased, exhibit 38

donation receipt given by deceased. Such amount has

been paid, which shows that the deceased was having

handsome income, and the Tribunal has ignored these

documents and considered Rs.4,000/- p.m., as income of

deceased.

4.2. Furthermore, he has submitted that the Tribunal

has completely bypassed the documentary evidence

produced below Exh.37, 39, 40, which are the school fees

receipts paid by the deceased for their children.

Furthermore, he has submitted that the Tribunal has

erred in not considering the documents produced below

Exh.59 and 60, which show that the deceased appointed

as Manager of Goyam Medicines and Arnath distributors.

These documents are enough and sufficient to prove that

the deceased as educated and in field of medicine and

for which he was possessing degree of Pharmacy. In

overall aspect of the matter, the income of rupees

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

Rs.4,000/- is totally on lowerside and the same is

required to be enhanced in the interest of justice.

4.3. Furthermore, he has submitted that the Tribunal

has erred in not believing the deposition of widow

recorded below Exh.26, wherein all the facts are

mentioned even though the learned Tribunal has

bypassed the said oral evidence and passed the judgment

and award on lower side. Furthermore, he has submitted

that the Tribunal has erred in granting lower amount

under the head of loss to the estate, funeral expenses

and loss of consortium. The Tribunal has grossly erred

in not appreciating the age of deceased and number of

dependent family members, while granting amount under

this heads. He has relied upon the judgment of the

Hon'ble Apex Court in the case of United India

Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur

& Ors. reported in AIR 2020 SC 3076, and has

submitted that the appellant Nos.2 and 4, who were

minors would be entitled to parental consortium and that

the appellant Nos.5 and 6 being father and mother of

the deceased be entitled to filial consortium. Hence, he

has submitted that in view of the above referred

premises, the quantum of compensation, as awarded by

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

the Tribunal, is on a lower side against the well-

establish principles of law. Therefore, he has prayed to

allow the present appeal by enhancing the amount of

compensation.

5. Per contra, learned advocate Mr. Shivang M. Shah for the defendant No.1 - original opponent No.1 (driver)

and learned advocate Mr. Rathin P. Raval for the

defendant No.3 - original opponent No.3 (insurance

company) have jointly submitted that the impugned

judgment and order passed by the Tribunal is just and

proper, as the Tribunal has considered all the aspects

and passed the impugned judgment and award after

considering the material available on the record. Accordingly, both the learned advocates have jointly

submitted the calculation fort the agreed amount.

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. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

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.

6.3. It transpires that essentially, the issue revolves

around the enhancement in the amount of compensation

awarded by the Tribunal. I have re-examined the facts of

the case in light of the various judgments of the Hon'ble

Apex Court in cases of (i) National Insurance Company

Limited versus Pranay Shethi reported in (2017) 16 SCC

680, (ii) Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121, (iii) Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram reported in (2018) 18 SCC 130. Hence, necessary amount of compensation is required to

be considered accordingly. Moreover, considering the

peculiar facts and circumstances, as the issue involved in

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

the present matter is that whether the Court can grant

just and proper amount in case where the person, who

is well-qualified and would have attracted well-paying

jobs, if he had been alive? For this purpose, the learned

advocate for the appellants - claimants has placed

reliance the judgment of the Hon'ble Apex Court in the

case of S. Vasanthi and Another vs. M/s. Adhiparasakthi

Engg. College reported in 2022 (4) TAC 376 (S.C.), I find

the relevant paragraphs of that judgment are 8 and 11,

as under:

"8. Mr. T. Harish Kumar, learned counsel for the appellants, submits that both the Tribunal and the High Court have grossly erred in calculating the notional monthly income of the deceased S. Sathiyanarayan at the rate of Rs. 10,000/. He submits that the High Court ought to have considered that S. Vasanthi appellant No. 1, in an affidavit filed by her before the Tribunal, had stated that two classmates of her deceased son would go on to get employment with reputed companies in India on a monthly salary of approximately Rs. 40,000/. The learned counsel submits that appellant No. 1 had, in fact, produced the salary certificates of the said two classmates with her affidavit. The learned counsel therefore submits that the deceased S. Sathiyanarayan, being an engineering graduate who was pursuing an MBA degree to further his career, would have attracted wellpaying jobs had he been alive.

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

The learned counsel therefore submits that the notional monthly income of the deceased S. Sathiyanarayan should be enhanced to Rs. 42842/. The learned Counsel relies on the judgment of this Court in the case of Kurvan Ansari Alias Kurvan Ali and Another vs. Shyam Kishore Murmu and Another1, in support of his contention.

11. It could thus be seen that the deceased S. Sathiyanarayan was twentythree years of age at the time of the accident. He was a qualified engineering graduate and was pursuing an MBA degree at SRM University to further his professional capabilities. In view of the specific averments made in the affidavit as to the employment prospects of the classmates of the deceased S. Sathiyanarayan and also his young age at the time of the accident, we are of the considered view that the Tribunal and the High Court have erred in not giving due weightage to the same. Had the deceased S. Sathiyanarayan not met with the unfortunate accident, he would have surely drawn a salary equivalent to that of his classmates or at least an amount near the said amount. Furthermore, the deceased was the only issue of the appellants. Since no parent should have to suffer through the death of their children, much less their only child, we are of the considered view that the monthly income as calculated by the High Court is inadequate."

6.4. Considering the submission of learned advocate for

the appellants, who has placed reliance upon another

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

judgment of the Hon'ble Apex Court in support of his

submission in the case of Basanti Devi vs. Divisional

Manager, The New India Assurance Company Limited

reported in 2021 (0) AIJEL-SC 68987, and has submitted

that documentary evidence produced on record below

Exh.64, 65, 66 and 67 are the documents from the

Department of Food and Drugs Control, and are required

to be considered by the Tribunal, while considering the

aspect of compensation, which was not considered by the

Tribunal, I am of the opinion that this judgment is

applicable to the facts of the present case, more

particularly, paragraphs No.3 to 6 is relevant, as under:

"3. The deceased, at the time of accident, was 25 years of age. The deceased was a Bachelor of Engineering in Computer Technology. The Motor Accidents Claims Tribunal, Ranchi (hereinafter referred to as the "Tribunal") assessed the income of the deceased for the purpose of awarding the future oss of income @ 20,000/- per month and thereafter adding 40% towards future prospects and thereafter deducted 50% towards his own personal expenditure as he was a bachelor, the Tribunal arrived at a total figure of Rs. 1,68,000/- p.a. for loss of dependency and thereafter applying the multiplier of 18 awarded Rs.30,24,000/- towards future loss of income. The Tribunal also awarded other amounts under the Conventional Heads. Thus, in all, the Tribunal

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

awarded a total sum of Rs.30,54,000/-. However, as the Claimants already received a sum of Rs. 50,000/- as interim compensation under Section 140 of the Motor Vehicles Act, the Tribunal deducted the same and awarded a total sum of Rs.30,04,000/- (Rs.30,54,000- 50,000) as compensation for the death of the deceased. In an appeal preferred by the Insurance Company, the High Court has reduced the amount of compensation from Rs.30,54,000/- to Rs. 15,82,000/-. The High Court has also dismissed the appeal preferred by the Claimants which was filed to enhance the amount of compensation.

4. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court dismissing the appeal preferred by the original Claimants and partly allowing the appeal preferred by the respondent- Insurance Company and reducing the amount of compensation from Rs. 30,54,000/- to Rs. 15,82,000/-, the original Claimants have preferred the present appeals.

5. Having heard the learned counsel appearing for the respective sides and considering the fact that the deceased at the time of death/accident was aged 25 years of age and was a Bachelor of Engineering in Computer Technology, we are of the opinion that the Tribunal rightly considered the income of the deceased at the time of death at least @20,000/-p.m. The same was not required to be interfered with by the High Court. The submission on behalf of the respondent - Insurance Company that as no documentary evidence was produced and/or laid in support of the

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

documentary evidence produced on record that the deceased was earning Rs.20,000/- per month and therefore the Tribunal ought not to have assessed the income of the deceased at Rs.20,000/- per month is concerned, assuming that there was no supporting evidence laid, in that case also considering the potentiality to earn, as the deceased was a Bachelor of Engineering in Computer Technology, his income can safely be assessed at-least at Rs.20,000/- per month. As such we are in complete agreement with the view taken by the Tribunal. The High Court has committed a grave error in reducing the compensation from Rs.30,54,000/- (Rs.30,04,000/-) to Rs.15,82,000/-.

6. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court insofar as allowing the appeal preferred by the Insurance Company and reducing the amount of compensation from Rs.30,54,000/- to Rs. 15,82,000/- is required to be quashed and set aside and is, accordingly, quashed and set aside. The Impugned judgment and order passed by the High Court dismissing the appeal preferred by the original Claimants which was filed to enhance the amount of compensation was rightly dismissed by the High Court. We concur with the same."

6.5. Additionally, it is required to take note of the fact

that the Tribunal has considered the income of the

deceased, Rs.4,000/- p.m. Furthermore, the Tribunal has

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

added 40% towards prospective income, and after

deducting 1/4 for the personal expenses, it comes to

Rs.4,200/- p.m. and annually, it comes to Rs.50,400/- and

after applying multiplier of 16 considering the age of

deceased 32 years, loss of dependency benefits comes to

Rs.8,06,400/-. For considering this aspect, if we consider

that the date of accident is 16.01.2014, the deceased was

aged 32 year. The deceased was holding a decree of

Diploma in Pharmacy, which is produced on record below

Exh.33, whereby it transpires that deceased was

registered pharmacist and was involved in his own

family medical business. Furthermore, the documents

below Exh.64, 65, 66, and 67 are the documents, which

are issued from the Department of Food and Drugs Control. Hence, considering the above-mentioned judgment

of the Hon'ble Apex Court in the cases of (i) S. Vasanthi

and Another (supra), (ii) Basanti Devi (supra), and

considering the fact that the deceased was holding decree

of Diploma in Pharmacy and also engaged in family

medical business, I am of the opinion that the income of

the deceased, at least, should be considered Rs.15,000/-

p.m. Now, after adding 40% (Rs.6,000/-) towards

prospective income as per the judgment of the Hon'ble

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

Apex Court in the case of Pranay Shethi (supra), it

comes to Rs.21,000/-. After deducting 1/4 (Rs.5,250/-)

amount towards personal expenses, it comes to

Rs.15,750/- per month, and annually i.e. after applying

multiplier of 12, it comes to Rs.1,89,000/-. After applying

multiplier of 16 considering the age of the deceased, it

comes to Rs.3,024,000/-. Furthermore, towards loss of

estate, the Tribunal has awarded Rs.15,000/-, but the

Tribunal ought to have awarded Rs.16,500/- as per the

judgment of the Hon'ble Apex Court in the case of

Pranay Shethi (supra). Furthermore, the Tribunal has

awarded Rs.40,000/- towards loss of consortium only. As

per the judgment of the Hon'ble Apex Court in the case

of United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, Rs.44,000/- each to the mother, father and children is

required to be awarded. Therefore, in the present case,

there is six dependents, hence, Rs.2,64,000/- is required

to be awarded towards loss of consortium. Furthermore,

the Tribunal has awarded Rs.16,500/- towards funeral

expenses, which is found just and proper as per the

judgment of the Hon'ble Apex Court in the case of

Pranay Shethi (supra), hence, it is not required to be

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024

undefined

interfered with.

6.9. Thus, the appellant - claimants are entitled to get

the following final amount as compensation:

Sr.No.                Particulars                  Amounts (Rs.)

1.        Future loss of income                               3,024,000/-

2.        Loss of Estate                                           16,500/-

3.        Loss of Consortium                                    2,64,000/-

4.        Funeral Expenses                                         16,500/-

                                       Total...                 3,321,000/-

6.10. Thus, the Tribunal has committed an error in

awarding total compensation of Rs.9,03,150/- only under

various heads. The appellant - original claimants are

entitled to get the additional amount of compensation of

Rs.2,417,850/- over and above the amount of Rs.9,03,150/-

as awarded by the Tribunal. The opponents, including

the insurance company, are jointly and severally liable to

pay the aforesaid additional amount of Rs.2,417,850/- to

the appellant - original claimants together with interest

at the rate of 9% per annum from the date of the claim

NEUTRAL CITATION

C/FA/3950/2021 ORDER DATED: 12/06/2024