Gujarat High Court

Valbai Sejabhai vs Sabirhusain Akbarali(Deleted) on 26 June, 2024

                                                                                      NEUTRAL CITATION




     C/FA/2095/2006                                 JUDGMENT DATED: 26/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2095 of 2006


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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                            VALBAI SEJABHAI & ORS.
                                    Versus
                      SABIRHUSAIN AKBARALI(deleted) & ORS.
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Appearance:
JENIL M SHAH(7840) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 1,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6
NOTICE ISSUED BY PUBLICATION for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 5
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 26/06/2024

                               ORAL JUDGMENT

1. The present First Appeal, under Section 173 of

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Motor Vehicles Act, 1988, is preferred by the appellant/s -

original claimant/s - legal heirs of the deceased - Myajar

Sejabhai, being aggrieved and dissatisfied with the judgment

and award dated 05.05.2005 passed by the Motor Accident

Claims Tribunal (Aux.), Morvi in Motor Accident Claim

Petition No.148 of 1992 (Old No.224 of 1986), by which the

Tribunal has awarded compensation of Rs.1,05,000/- with 9%

per annum interest to the claimant/s, holding Opponents No.1

and 2 - driver and owner of the truck bearing registration

No.GTF-2256, liable, jointly and severally. It is noted that

opponents No.4 to 6 i.e. insurance company of the truck,

driver, owner and insurance of Tanker No.GTY-6797 are

exonerated by the learned Tribunal.

2. Brief facts of the case are as under:

2.1 That on 27.10.1985, the deceased was returning

from Junagadh to Gandhidham in Tanker bearing registration

No.GTY-6797 as a cleaner and the driver of the said vehicle

was driving the aforesaid tanker on the left hand side on the

road with controllable speed. At around 3:00 hours on

28.10.1985, the said tanker reached about 2 k.m., away from

Lajai village towards Rajkot and was proceeding between

Lajai and Druvnagar on Rajkot-Morvi Road, at that time,

opponent No.1 - driver came from Morvi side with his Truck

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bearing registration No.GTF-2256 in rashly, recklessly and

negligently without observing traffic rules and lost control

over his vehicle and came from wrong side of road collided

his truck with the tanker from opposite direction. Deceased

sustained serious injuries in the said accident and ultimately,

he succumbed to the injuries. Therefore, initially, the widow,

parents, brother and sister of the deceased filed a claim

petition of getting compensation of Rs.3 lakhs with costs and

interest, but during the pendency of the claim petition, the

widow and father of the deceased died on 12.10.2003 and

06.08.2004, respectively and hence, they were deleted. Now,

the applicant Nos.1, 2 and 3, who are mother, brother and

sister of the deceased respectively are the claimants -

appellants.

2.2 Notices were served to the opponents. Opponent

No.6 - insurance company of the tanker has filed its written

statement / objections at Exh.17 by 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 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

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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.Jenil M. Shah, 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 25 years at

the time of accident and was serving as a Cleaner in the

Tanker. He has submitted that it is proved that the deceased

was serving as a Cleaner in the Tanker and as per the oral

evidence at Exh.25 with due cross-examination with income

certificate at Exh.67 and Mark 23/16, the income of the

deceased should be considered as Rs.1,250/- (Rs.750/- salary

plus Rs.500/- allowance) per month. He has fairly submitted

that the learned Tribunal has not considered the prospective

income. He has submitted that therefore, considering the loss

of dependency, it would be calculated as Rs.1,250/- as

monthly income plus Rs.500/- as 40% prospective income

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minus Rs.584/- as personal expenses (1/3) multiplied by 12

months and multiplied by 18 multiplier would come to

Rs.2,51,856/- total future loss, which should be awarded to

the claimants by the learned Tribunal.

He has further submitted that considering the

general and non-pecuniary damages, the learned Tribunal

should award Rs.15,000/- each towards loss of estate and

funeral expenses. He has also submitted that towards loss of

consortium, it should be awarded Rs.40,000/- as per the

decision of the Hon'ble Apex Court.

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. Maulik Shelat, learned advocate for respondent No.6 - insurance company of the tanker has

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. He

has submitted that under the head of loss of estate and

funeral expenses, the Tribunal has rightly awarded

compensation. He has submitted that the amount under the

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head of loss of consortium is just and proper and only one is

major and others are the minor children. He has 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 25 years and

was working as a Cleaner in a tanker at the relevant point

of time and looking to the evidence on record, it would come

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to Rs.1,250/- per month and by adding 40% prospective

income, as calculated by the learned Tribunal, it would come

to Rs.500/- and therefore, total income comes to Rs.1,750/- per

month. Since the deceased is aged about 25 years, 1/3 would

be proper to be deducted as personal expenses and therefore,

it would come to Rs.584/-. Hence, the income would come to

1,166/- per month and therefore, yearly, it would come to

Rs.13,992/- and applying 18 multiplier as per the schedule of

the Motor Vehicles Act as well as the ratio laid down by the

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

Transport Corporation reported in (2009) 6 SCC 121, it would

come to Rs.2,51,856/- as future loss, 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 dependents to the deceased.

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,

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Rs.40,000/- consortium to the dependent, which comes to

Rs.40,000/-, which should be awarded to the claimants.

6.4 Therefore, total compensation would be as under,

which the claimant/s is/are entitled to get.

                            Particulars                          Amount (Rs.)



          Future Loss of Income                                           2,51,856/-

          Loss of Estate                                                     15,000/-

          Funeral Expenses                                                   15,000/-

          Loss of consortium                                                 40,000/-

                                                     Total...               3,21,856/-

          Less : Amount which is already awarded                          1,07,000/-

                   Additional amount which is awarded                     2,14,856/-

7. Therefore, I hold that the claimant/s are entitled

to get the total amount of compensation of Rs.3,21,856/- with

9% 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.1,07,000/-, therefore, remaining

amount of Rs.2,14,856/- would be the enhanced amount of

compensation payable to the claimant/s.

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8. For the reasons recorded above, the following order