Gujarat High Court

Lilaben Kevsing Rathwa vs Tushar Chandrakant Patel (Deleted) on 26 June, 2024

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     C/FA/4016/2018                               JUDGMENT DATED: 26/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4016 of 2018


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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                   LILABEN KEVSING RATHWA & ORS.
                               Versus
             TUSHAR CHANDRAKANT PATEL (DELETED) & ORS.
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2,3,4,5,6,7,8,9
DELETED for the Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
SERVED BY AFFIX(N) for the Defendant(s) No. 2
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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

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

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

Jamsing Rathwa, being aggrieved and dissatisfied with the

judgment and award dated 09.05.2018 passed by the Motor

Accident Claims Tribunal (Aux.), Vadodara in Motor Accident

Claim Petition No.254 of 2008, by which the Tribunal has

awarded compensation of Rs.3,70,600/- with 9% per annum

interest to the claimant/s, holding Opponents liable, jointly

and severally.

2. Brief facts of the case are as under:

2.1 That on 11.12.2007, deceased - Kevsing was going

towards village Pansoli from village Paniya by riding on

Motorcycle bearing registration No.GJ-6-CK-6815 on a very

moderate speed and that too on the correct side of the road.

When he was passing through the place of incident, one

motorcar bearing registration No.GJ-6-CB-5818 driven by

opponent No.1 in a very rash and negligent manner, hit the

motorcycle of the deceased. As a result, accident has taken

place, wherein the deceased had received grievous fatal

injuries and succumbed to it during treatment. Therefore, the

legal heirs of the deceased - widow, six children and parents

have filed claim petition seeking compensation of Rs.10 lakhs

with cost and interest for unnatural and untimely death

against the present respondents before the Tribunal.

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2.2 Notices were served to the opponents. Opponents

No.1 and 2 - driver and owner have chosen not to appear

and contest the claim petition before the Tribunal. Opponent

No.3 - Insurance Company has appeared and has filed its

written statement / objections at Exh.11 by disputing all the

averments made by the claimant in the claim petition.

2.3 The Tribunal has framed the issues at Exh.15.

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. R.G. Dwivedi 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,

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negligence, liability and family circumstances, etc. He has

submitted that the deceased was aged about only 35 years at

the time of accident and was agriculturist and also was

serving as Bore Operator. He has submitted that at the

relevant point of time, his monthly income was Rs.4,000/-. He

has fairly submitted that the learned Tribunal has rightly

considered the prospective income, deduction of personal

expenses looking to the age of the deceased, multiplier and

medical expenses. He has submitted that therefore,

considering the loss of dependency, it would be calculated as

Rs.4,000/- as monthly income plus Rs.1,600/- as 40%

prospective income minus Rs.5,600/- as personal expenses (1/5)

multiplied by 12 months and multiplied by 16 multiplier

would come to Rs.8,60,160/- 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, there are nine dependents, including parents and

therefore, it would be awarded Rs.4,38,000/- should be

awarded 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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He has further submitted that the learned

Tribunal ought to have awarded the amount towards pain,

shock and suffering, as the deceased had to take treatment

due to the accident and therefore, the amount of Rs.20,000/-

which is awarded by the learned Tribunal towards paid,

shock and suffering, ought to have been on higher side and

it should be Rs.35,000/- towards it.

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. Tanmay Karia, learned advocate for respondent - Insurance Company 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 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.

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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 35 years and

was an agriculturist and also was working as Bore Operator

and his monthly income should be calculated as Rs.4,000/- at

the relevant point of time. Therefore, it should be considered

as monthly income of the deceased. Hence, it would come to

Rs,4,000/- per month and by adding 40% prospective income,

as calculated by the learned Tribunal, it would come to

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Rs.1,600/- and therefore, total income comes to Rs.5,600/- per

month. Since the deceased is aged about 35 years and there

are nine dependents, including parents, 1/5 would be proper

to be deducted as personal expenses and therefore, it would

come to Rs.1,120/-. Hence, the income would come to

Rs.4,480/- per month and therefore, yearly, it would come to

Rs.53,760/- and applying 16 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.8,60,160/- 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 five dependents to the deceased,

consisting widow, two minor children and parents. 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/-

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consortium to each dependent and 10% rise every three

years, which comes to total Rs.4,38,000/-, which should be

awarded to the claimants.

6.4 Further, the learned Tribunal has decided 50%

negligence on the part of the deceased. However, looking to

the occurrence of accident, nature of injuries, role of the

deceased and postmortem report, the negligence on the part

of the deceased would be considered as 25% instead of 50%.

Therefore, it should be corrected to that effect.

6.5 Therefore, total compensation would be as under,

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

                           Particulars                         Amount (Rs.)



      Future Loss of Income                                            8,60,160/-

      Loss of Estate                                                      15,000/-

      Funeral Expenses                                                    15,000/-

      Loss of consortium (including filial /                           4,38,000/-

      parental consortium)

      Pain, Shock and Suffering                                           35,000/-

      Medical Expenses                                                      6,000/-







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                                                Total...            13,69,160/-

           Less : 25% Negligence of the Deceased                   3,42,290/-

      Less : Amount which is already awarded                       3,70,600/-

               Additional amount which is awarded                  6,56,270/-

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

to get the total amount of compensation of Rs.10,26,870/-

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.3,70,600/-, therefore,

remaining amount of Rs.6,56,270/- 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