Gujarat High Court

The New India Assurance Co. Ltd vs Kashiben Wd/O Vitthalbhai Harijan on 26 June, 2024

                                                                                    NEUTRAL CITATION




     C/FA/2395/2024                              JUDGMENT DATED: 26/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                      R/FIRST APPEAL NO. 2395 of 2024
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                     In R/FIRST APPEAL NO. 2395 of 2024

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                   THE NEW INDIA ASSURANCE CO. LTD.
                                 Versus
                KASHIBEN WD/O VITTHALBHAI HARIJAN & ORS.
==========================================================
Appearance:
MS E.SHAILAJA(2671) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5,6
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 26/06/2024

                            ORAL JUDGMENT

1. This appeal is filed against the judgment and

award passed by the Motor Accident Claims Tribunal (Aux.)

at Halol-Panchmahals vide MACP No.11 of 2022 dated

12.4.2024.

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2. The brief fact leading to filing of this appeal are

such that the original claimants filed the claim petition

stating that the deceased was standing nearby Bhatiji temple

at village Behia on off side of the road, at that time, the

respondent no.5 herein came by driving vehicle no.GJ-15-DD-

9752 rashly and negligently at an excessive speed and dashed

him, due to which, the deceased got injuries and he

succumbed to death.

3. The said claim petition was contested by the

appellant herein and after considering the documentary and

oral evidence led before it, the learned Tribunal awarded the

amount of Rs.11,39,200/- with 9% p.a. by holding the original

opponent nos.1 to 3 jointly and severally liable, which is

challenged by way of this appeal by the appellant-insurance

company.

4. Heard learned advocate Ms.Shailaja for the

appellant-insurance company. She submitted that the learned

Tribunal has committed error to the extent that the loss of

dependency of 1/4th is required to be deducted towards

personal expenses instead of 1/3rd which is deducted.

5. The other contention is that the income considered

is in absence of any proof of income, as the deceased person

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was at the time of accident 56 years and could not earn

more than the minimum daily wages and the learned

Tribunal ought to have considered the income to the tune of

minimum wages of Rs.9,000/- instead of Rs.12,000/-. Learned

advocate has further submitted that the claimant's case is

that he was earning Rs.13,000/- as he was serving in the

private company and doing the job in private company,

however, there is no proof produced in the matter to show

that he was earning and considering the judgment of Govind

Yadav v. New India Insurance Company Limited, (2011) 10 SCC 683, normally, the Court should consider the income on the basis of the minimum daily wages in absence of any

material or document available with the Tribunal regarding

the proof of income and therefore she prayed that the

Tribunal has committed the error and therefore prayed to

allow this appeal.

6. I have considered the averments made in the

appeal as well as the contentions raised by the learned

advocate and gone through the impugned judgment.

7. 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

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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 endeavour should be made by the Court

to award just and fair compensation irrespective of the

amount claimed by the claimants. It must be kept in mind

that the person has lost the life and the claimants have lost

the bread earner and no amount can compensate the said

loss and loss of love and affection. The court cannot expect

the Tribunal to calculate every amount for mathematical

precision, as is held by the Hon'ble Apex Court in number of

judgments.

8. The contention that instead of 1/4th amount

deducted towards personal expenses, 1/3rd should be deducted

for personal expenses is ill-founded as in view of the decision

of Sarla Verma V/s Delhi Transport Corporation reported in

(2009)6 SCC 121, if the dependents are 4 to 6, the deduction should be 1/4th and not 1/3rd. So, this contention cannot be

expected as the learned Tribunal has not committed any

error in deducting the amount towards personal expenses.

9. Another contention that in absence of any proof of

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income, the income of Rs.12,000/- is on higher side, it is

noteworthy that the accident has occurred in the year 2021,

the deceased Vitthalbhai was aged 55 years at the time of

accident. It is the case of the claimants that the deceased

was doing different kind of work at Dadra and Nagar Haveli

and earning Rs.13,000/- per month. In the present case,

claimant no.1 is widow of the deceased Vitthalbhai and no.2

to 4 are children of Vitthalbhai. Vitthalbhai was looking after

the family and considering the fact that in the year 2021, for

a family of five persons, even to satisfy their basic needs,

the amount can be easily presumed that the person could

have earned more than Rs.12,000/- at the time of accident.

The court has to do some guess work also. There cannot be

any hard and fast rule to consider the income. The income

should be considered from the surrounding circumstances and

from the facts and circumstances of each case. It is also open

for the court in a given case that the court can consider the

income on the basis of minimum wage. Even assuming that

the income should be considered on the basis of minimum

wages at the time of accident, as submitted by learned

advocate for the appellant of Rs.9,000/- and considering the

fact that the learned Tribunal has considered the loss of

dependency to the tune of Rs.10,69,200/-, thereafter under the

head of conventional amount, loss of consortium is considered

only Rs.40,000/- and there are four dependents in the claim

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petition and in view of judgment of National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680 and Magma General Insurance Company Ltd. V/s Nanu Ram and Others reported in (2018)18 SCC 130 , they are entitled for consortium of Rs.48,400/- each considering the

rise of 10% after three years and therefore the amount

should be Rs.1,93,600/- towards loss of consortium and

towards loss of estate and funeral, the amount is required to

be enhanced to Rs.18,150/- each instead of Rs.15,000/- each,

then also, atleast the amount of Rs.1,60,000/- is required to

be enhanced under the head of conventional charges.

Therefore, based on this calculation also, even assuming that

the amount awarded considering the monthly income of

Rs.9,000/- instead of Rs.12,000/- is on higher side, then also

the amount will almost remain same, after considering the

additional amount under non-conventional head.

10. In view of the above, there is no reason to