Gujarat High Court

Peviben Parsottambhai Wd/O ... vs Gordhanbhai Veljibhai Joshi on 27 June, 2024

                                                                                        NEUTRAL CITATION




      C/FA/1851/2014                                 JUDGMENT DATED: 27/06/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1851 of 2014


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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         PEVIBEN PARSOTTAMBHAI WD/O PARSOTTAMBHAI & ORS.
                             Versus
                GORDHANBHAI VELJIBHAI JOSHI & ORS.
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Appearance:
MS JK HINGORANI(2491) for the Appellant(s) No. 1,2,3,4,5,6,7,8
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 5
RULE UNSERVED for the Defendant(s) No. 1,3
UNSERVED EXPIRED (R) for the Defendant(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 27/06/2024

                                 ORAL JUDGMENT

1.1 The present First Appeal is preferred by the

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

- Parsottambhai Meghrajmal, being aggrieved and dissatisfied

with the judgment and award dated 17.02.2014 passed by the

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

Accident Claim Petition No.124 of 2001, by which the

Tribunal has awarded compensation of Rs.4,20,000/- with 9%

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

and 2 i.e. owner and insurance company of the Truck bearing

registration No.GJ-11-T-9935 liable, jointly and severally.

1.2 It is noted that the learned Tribunal has

exonerated opponents No.3 to 5 i.e. driver, owner and

insurance company of the Truck bearing registration No.GJ-

12-T-5029, which was in stationary condition at the road

side.

2. Brief facts of the case are as under:

2.1 That on 23.12.2000, deceased - Parsottambhai

Meghrajmal, along with another person viz., Narsibhai

Mohanbhai Sapara, who has also died in the said accident,

had hired a Truck bearing registration No.GJ-11-T-9935 for

purchase of materials for house furniture and had gone to

Gandhidham and when they returning back to Junagadh with

the furniture materials in the said truck, at that time, the

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driver of the truck was driving the truck in an uncontrollable

speed and in a rash and negligent manner and at about

10:30 p.m., when the truck reached ahead of Bhachau, near

village Samakhiyali, on the National Highway, the driver of

the truck lost control over the vehicle. As a result, the truck

turned turtle and the accident has occurred. Due to the

accident, deceased sustained grievous injuries on the head

and was immediately admitted in the Madhuram Hospital,

Rajkot and he remained as an indoor patient for 14 days,

where he had undergone operations, but thereafter, he was

shifted to another hospital of Dr.H.J. Doshi on 05.01.2001.

However, on the very same day, he succumbed to the

injuries. Therefore, the legal heirs of the deceased - widow,

six children and mother have filed claim petition seeking

compensation of Rs.10 lakhs with cost and 18% interest for

unnatural and untimely death against the present

respondents before the Tribunal.

2.2 Opponent No.1 and 2 are the owner and insurance

company of the Truck bearing registration No.GJ-11-T-9935,

whereas opponents No.3 to 5 are the driver, owner and

insurance company of the Truck bearing registration No.GJ-

12-T-5029, which was in stationary condition at the road

side.

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Notices were served to the opponents. Opponents

No.1 and 3 remained absent. Opponent No.2 and 5 i.e.

insurance company of both the Trucks have filed their

written statements / objections by disputing all the averments

made by the claimant/s in the claim petition. Opponent No.4

- owner of the parked truck has filed his objection by

personal appearance.

2.3 The Tribunal has framed the issues at Exh.44.

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 Ms. J.K. Hingorani for the

appellant/s - claimant/s has submitted that the Tribunal has

committed an error in not properly calculating the amount of

compensation. She 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. She has

submitted that the deceased was aged about only 48 years at

the time of accident and was a carpenter. She has submitted

that at the relevant point of time, his monthly income was

Rs.2,500/-. She has submitted that the learned Tribunal has

not properly considered the prospective income, deduction of

personal expenses looking to the age of the deceased and

multiplier. She has submitted that therefore, considering the

loss of dependency, it would be calculated as Rs.2,500/- as

monthly income plus Rs.625/- as 25% prospective income

minus Rs.625/- as personal expenses (1/5) multiplied by 12

months and multiplied by 13 multiplier would come to

Rs.3,90,000/- total future loss, which should be awarded to

the claimants by the learned Tribunal.

She has further submitted that considering the

general and non-pecuniary damages, the learned Tribunal

should award Rs.21,962/- each towards loss of estate and

funeral expenses. She has also submitted that towards loss of

consortium, since there are eight dependents, it should be

awarded Rs.58,564/- each 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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She 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.2 - Insurance Company (judgment debtor)

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.

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

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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 48 years and

was working as carpenter and his monthly income was

Rs.2,500/- at the relevant point of time. Therefore, it should

be considered as monthly income of the deceased. Hence, the

calculation of the loss of future income, it would be

calculated as; Rs.2.500/- per month income and by adding

25% prospective income, as not calculated by the learned

Tribunal, it would come to Rs.625/- and therefore, total

income comes to Rs.3,125/- per month. Since the deceased is

aged about 48 years and there are eight dependents, 1/5

would be proper to be deducted as personal expenses and

therefore, it would come to Rs.625/-. Hence, the income would

come to Rs.2,500/- per month and therefore, yearly, it would

come to Rs.30,000/- and applying 13 multiplier as per the

schedule of the Motor Vehicles Act as well as the ratio laid

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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.3,90,000/- 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.21,962/- and

Rs.21,962/-, respectively, which would be the just and proper

compensation.

6.3 Further, there are eight 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/- consortium to each dependent and 10% rise, which

comes to Rs.58,564/- as consortium to each dependents, which

comes to Rs.4,68,512/-, which should be awarded to the

claimants.

6.4 Further, with regard to the medical expenses is

concerned, the learned Tribunal has rightly awarded and

there is no dispute by the claimants with regard to it.

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Therefore, the medical expenses remain same.

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                                        3,90,000/-

         Loss of Estate                                                  21,962/-

         Funeral Expenses                                                21,962/-

         Loss of consortium                                           4,68,512/-

         Medical Expenses                                                40,000/-

                                                  Total...              9,42,436/-

         Less : Amount which is already                               4,20,000/-

         awarded

               Additional amount which is awarded                     5,22,436/-

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

to get the total amount of compensation of Rs.9,42,436/- 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.4,20,000/-, therefore, remaining

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amount of Rs.5,22,436/- would be the enhanced amount of

compensation payable to the claimant/s.

8. For the reasons recorded above, the following order