Gujarat High Court
Kumpsing Dungarsing Bhati (Decd.) ... vs Mahendrasinh Kalyansinh Bhati on 18 June, 2024
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2828 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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 ?
==========================================================
KUMPSING DUNGARSING BHATI (DECD.) THROUGH LEGAL HEIRS &
ORS.
Versus
MAHENDRASINH KALYANSINH BHATI & ORS.
==========================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
MR HS MUNSHAW(495) for the Defendant(s) No. 2
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/06/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
Vehicles Act, 1988, is preferred by the appellant/s - original
claimant/s - legal heirs of the deceased, being aggrieved and
dissatisfied with the judgment and award dated 02.09.2009 passed
by the Motor Accident Claims Tribunal (Main), Banaskantha at
Palanpur in Motor Accident Claim Petition No.472 of 1997, by which
the Tribunal has awarded compensation of Rs.1,52,060/- with 7.5%
per annum interest to the claimant/s, holding Opponent/s No.1 to 3,
liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 That on 29.11.1995, the deceased (aged about 54 years
and was serving as Police Constable cum Driver) and Danta P.S.I.
along with his staff were standing on Dantha-Palanpur road for
vehicle checking, at that time, the driver of the offending vehicle -
Jeep bearing registration No.GJ-8-G-1054 came in a rash and
negligent manner and knocked down the deceased. As a result, the
deceased sustained grievous injuries and he succumbed to the
injuries during the treatment at Palanpur Civil Hospital. Therefore,
the legal heirs of the deceased - widow and 8 children have filed
claim petition seeking compensation of Rs.5 lakhs for unnatural and
untimely death against the present respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponents No.1
and 2, though appeared, did not file their written statement
contesting the claim of the applicants. Opponent No.3 - insurance
company of the Car has filed its written statement / objections at
Exh.20 by disputing all the averments made by the claimant in the
claim petition and also disputed the liability.
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
2.3 The Tribunal has framed the issues at Exh.11. The oral as
well as documentary evidence were led by the rival parties before the
Tribunal. After considering the 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 appeal is
preferred by the claimant/s for enhancement.
3. Learned advocate Mr.Paresh Darji for the appellant/s -
claimant/s has submitted that the Tribunal has committed an error in
not properly calculating the amount of compensation. He has
submitted that amount of award is on lower side as the Tribunal has
not properly considered the various aspects; like prospective income
of the deceased, negligence, liability and family circumstances, etc.
He has submitted that the deceased was aged about only 54 years at
the time of accident and was serving as Police Constable cum Driver.
He has submitted that he died left behind him the widow and eight
minor children. Therefore, the Tribunal ought to have considered the
prospective income of the deceased on higher side. He has submitted
that as per the decision of the Hon'ble Apex Court in the case of
National Insurance Company Limited versus Pranay Shethi reported
in (2017) 16 SCC 680, the prospective income would be considered
as Rs.3,365/- per month. He has further submitted that there was a
widow and eight minor children to the deceased, therefore, more
amount of the income part requires to be used for the dependents
and less amount remains for the self expenses and therefore, 1/5
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
amount should be deducted as personal expenses. He has further
submitted that there were all chances for the further promotion in
the job of the deceased and therefore, 11 multiplier should be
awarded by the Tribunal. He has also submitted that as per the
decision of the Hon'ble Apex Court in the case of Pranay Shethi
(supra), Rs.15,000/- should be awarded under the loss of estate to the
claimants. He has submitted that with regard to the loss of
consortium, Rs.44,000/- should be awarded to each dependents and
since there are total nine dependents, therefore, Rs.3,96,000/- should
be awarded under the head of loss of consortium to the claimants. He
has further submitted that the learned Tribunal has awarded meager
amount under the head of funeral expenses, which should be
Rs.15,000/- as per the decision of the Hon'ble Apex Court in the case
of Pranay Shethi (supra). He has fairly submitted that the learned
Tribunal has awarded Rs.10,000/- under the head of pain, shock and
suffering, which is proper. He has submitted that the compensation
is required to be enhanced by modifying the award impugned
accordingly and this appeal may be allowed.
4. Per contra, Mr. H.S. Munshaw, learned advocate with
learned advocate Mr. Devang Bhatt for respondent No.2 and learned
advocate Mr. Rituraj Meena for respondent No.3 have submitted that
the impugned judgment and award passed by the Tribunal is just and
proper. The Tribunal has rightly considered the income of the
deceased, the age of the deceased, the dependency and future aspect
of income. They have submitted that under the head of loss of estate
and funeral expenses, the Tribunal has rightly awarded
compensation. They have submitted that the amount under the head
of loss of consortium is just and proper and only one is major and
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
others are the minor children. They have submitted that this appeal
may be dismissed and no interference be made by this Court.
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. From the record, it transpires that the deceased was aged
about 54 years and was working as a police constable cum driver.
Further, he was on duty and while checking the vehicles along with
other police personnel, the accident has occurred. Considering the
ratio laid down by the Hon'ble Apex Court in the case of National
Insurance Company Limited versus Pranay Shethi reported in (2017)
16 SCC 680, 15% prospective income would be added to his income
and therefore, the income of the deceased would be considered as
Rs.3,365/- per month. Since deceased has total nine dependents, his
personal expenses would be considered as 1/5 instead of 1/3. Thus,
considering the income of the deceased Rs.3,365/- less 1/5 deduction
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
for personal expense, it would come to Rs.2,692/- per month income
of the deceased, multiplied by 12 months, which would come to
Rs.32,304/- per year. Since the deceased was aged about 54 years
and there are nine dependents, 11 multiplier would be just and
proper, therefore, it would come to Rs.3,55,344/- (Rs.32,304/- x 11
multiplier) which is the future loss of income of the deceased which
is required to be awarded to the claimants.
6.2 Further, considering the ratio laid down by the Hon'ble
Apex Court in the case of Pranay Shethi (supra), as general and non-
pecuniary damages, under the head of loss of estate and funeral
expenses, if we award Rs.15,000/- and Rs.15,000/-, respectively,
which would be the just and proper compensation.
6.3 Further, there are nine dependents to the deceased,
consisting widow and eight children. Therefore, as per the decision
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.40,000/- consortium to each dependent and 10% rise,
which comes to Rs.44,000/- as consortium to each dependents, which
comes to Rs.3,96,000/-, which should be awarded to the claimants.
6.4 Further, the learned Tribunal has rightly awarded the
amount under the head of pain, shock and suffering, therefore, there
would not be any addition under that head.
6.5 Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
Particulars Amount (Rs.)
Future Loss of Income 3,55,344/-
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
Loss of consortium 3,96,000/-
Pain, Shock and Suffering 10,000/-
Total... 7,91,344/-
Less : Amount which is already awarded 1,52,060/-
Additional amount which is awarded 6,39,284/-
7. Therefore, I hold that the claimant/s are entitled to get
the total amount of compensation of Rs.6,39,284/- with 7.5% p.a.
interest from the date of filing the claim petition till its realisation,
which would meet the ends of justice. Rest of the direction(s) of the
Tribunal remain same. The Tribunal has already awarded
Rs.1,52,060/-, therefore, remaining amount of Rs.6,39,284/- would be
the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the
enhanced amount Rs.6,39,284/- with 7.5% p.a. interest from the date
of claim petition till its realisation before the concerned Tribunal,
within a period of six weeks from the date of receipt of this order.
8.3 The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimants, by account payee cheque / NEFT /
NEUTRAL CITATION
C/FA/2828/2010 JUDGMENT DATED: 18/06/2024
undefined
RTGS, after proper verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
