Gujarat High Court
Jaikrishna Janakbhai Pandya vs Keharsing C/O Premchand Teleram on 1 May, 2024
Author: Gita Gopi
Bench: Gita Gopi
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C/FA/719/2010 JUDGMENT DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 719 of 2010
With
R/FIRST APPEAL NO. 4495 of 2009
With
R/FIRST APPEAL NO. 720 of 2010
With
R/FIRST APPEAL NO. 721 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAIKRISHNA JANAKBHAI PANDYA
Versus
KEHARSING C/O PREMCHAND TELERAM & ORS.
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Appearance:
MR DN PANDYA(545) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/05/2024
ORAL JUDGMENT
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1. All the present first appeals arise from the common
judgment which has been decided on 06.10.2008 by the
Motor Accident Claims Tribunal (Auxiliary) and City Civil
Judge, Court No.17, Ahmedabad.
2. First Appeal No.4495 of 2009 challenges MACP
No.304 of 2000, First Appeal No.719 of 2010 challenges
MACP No.295 of 2000 while First Appeal No.720 of 2010
and First Appeal No.721 of 2010 challenges MACP
No.296 of 2000 and MACP No.297 of 2000 respectively.
3. The facts of the case succinctly can be laid down as
under:
3.1. The applicants of the above referred MACPs are
either the injured or legal heirs of the deceased. The
accident had occurred on 08.12.1999 at Beas Nallah, 33
kms away from Manali Police Station enroute to Rohtang
in Himachal Pradesh. On 30.11.1999 all the victims had
started travelling with a tourist party from Ahmedabad
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City. The tour was organized by Gandhi Tours and Travels
having the head Quarter opposite Museum, Paldi
Ahmedabad-7. After visiting Jaipur, Agra, Haridwar,
Rishikesh, Katra, Vaishnodevi, they reached at Manali
and were enroute to Rohtang on 08.12.1999 from Manali
in a Maxi Cab bearing registration No.HP-02-8676. It
was stated by the claimant that the driver of the vehicle
was driving the vehicle in full speed and in rash and
negligent manner endangering human life and he lost
control over the steering and at about 33 kms away in a
North from Manali, the vehicle fell in the Nallah. Few
died on the spot and other tourists were seriously injured.
The victims were immediately shifted to Vilangdon
Hospital at Manali and as per the doctors advice, they
were further taken to other hospitals.
4. Learned advocate Mr. D. N. Pandya for the
appellants-claimants submitted with regard to First
Appeal No.4495 of 2000 which is connected to MACP
No.304 of 2001 that, the deceased was 55 years at the
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time of the accident and was Electrical Mechanical
Engineer. Learned advocate Mr.Pandya submitted that as
per the evidence of the widow, the deceased was handing
over the salary of Rs.8,000/- while stating that the
tribunal has erred in considering his income as Rs.3,000/-
per month. Mr.Pandya submitted that taking into
consideration his age as well as his academic career, the
amount is not assessed in accordance to the evidence in
record. Mr.Pandya further stated that at mark 10/1, the
appointment letter of the deceased in Oilco Sales
Corporation dated 25.05.1995 shows his basic salary of
Rs.4,500/- in the post of Chief Production Engineer and
thus, submitted that the income was required to be
assessed, as if that would have drawn on the date of
accident.
5. Countering the argument Mr.G. C. Majmudar
submitted that as per the evidence of the son of the
deceased produced at Exh.21, the deceased was
employed with Oilco Sales Corporation which is a
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subsidiary of one Midco. Pvt. Ltd. and his service came to
be terminated. Mr.Majmudar submitted that he was
appointed as Chief Production Engineer in 22.05.1995
and his services were terminated on 16.12.1996 and a
reference case (Labour No.234 of 1997) was filed raising
an industrial dispute. Mr.Majmudar stated that on the
date of accident, the deceased was having no income and
as per the judgment of Sarla Verma Vs. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121, the
income drawn at the time of the accident is required to be
assessed and thus stated that in absence of any evidence
on record by way of any salary slip, the amount assessed
as Rs.3,000/- by the tribunal is just and proper.
6. The evidence at mark 10/1 shows an appointment
letter of the deceased who was appointed at the post of
Chief Production Engineer for the salary of Rs.4,500/- as
a basic. As per the evidence of the son the employment
was terminated on 16.12.1996. The reference case was in
progress. The result of the reference case was not
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brought on record of the Tribunal but it has been noted in
the cross-examination that they have been joined as heirs
of the deceased in the said reference matter. Since no
evidence has been produced of his earning of Rs.8,000/-
and the record at mark 10/1 shows that he was employed
at the salary of Rs.4,500/-, this Court considers that the
said amount of Rs.4,500/- be considered as his salary.
Taking into consideration his age of 55 years on the date
of accident, 10% prospective rise is granted. Hence, the
amount would come to Rs.4950/-. 1/3rd is deducted for
his personal expense. Hence, Rs.3,300/- (Rs.4950-
Rs.1650=Rs.3,300/-) considering the annual dependency
applying the multiplier of 9, the dependency would be
Rs.3,56,400/-. (Rs.3,300/- x 12 x 9).
7. In accordance with the judgment of National
Insurance Company Limited Vs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680, Rs.15,000/- is granted
for loss of estate and Rs.15,000/- for funeral expense.
Since the widow of the deceased has been joined as a
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claimant, in accordance with the judgment of Magma
General Insurance Company Limited Vs. Nanu Ram
alias Chuhru Ram & Ors., reported in (2018) 18 SCC
130, Rs.40,000/- is granted as consortium loss. In the
result, the computation is under:
Rs.3,56,400/- Dependency loss
Rs. 15,000/- Loss to estate
Rs. 15,000/- Funeral expenses
Rs. 40,000/- Consortium
Rs.4,26,400/- Total Compensation
8. As the Tribunal has granted compensation of
Rs.3,04,000/- with interest at the rate of 7.5% per annum,
the claimants would be entitled to the enhanced amount
of compensation of Rs.1,22,400/- with interest at the rate
of 7.5% per annum from the date of filing of the claim
petition till its realization.
9. In First Appeal No.719 of 2010 which is in
connection with MACP No.295 of 2000, the tribunal has
considered the salary of the applicant who at the relevant
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time was serving in Life insurance Corporation of India as
Higher Grade Assistant. The income was considered at
Rs.10,704/- and by assessing 10% disability for body as a
whole the tribunal has granted the compensation amount
under various heads which are just and proper. The total
compensation of Rs.98,400/- has been granted by the
tribunal at the rate of 7.5% which this Court considers
that it is just and reasonable.
10. In First Appeal No.720 of 2010 in connection with
the MACP No.296 of 2000, it was urged that the deceased
was an advocate but could not practice because of her
household responsibility. Hence, the learned tribunal, in
that fact of the case, has considered her income as
Rs.3,000/- for the housewife, however, no prospective rise
of income has been assessed for the deceased who died at
the age of 40 years. Thus, in view of the judgment of
Pranay Sethi (supra), 25% rise in income is required to
be assessed which come to Rs.750/- which on being
added, the monthly income would be Rs.3,750/-. 1/3rd
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would be deducted as personal expense. Hence, the
monthly dependency is Rs.2,500/- (Rs.3750/- - Rs.1250/-).
Annually applying the multiplier of 15, the dependency
loss would be 4,50,000/-. In view of the judgment of
Pranay Sethi (supra), Rs.15,000/- is granted for loss to
estate and Rs.15,000/- for funeral expenses.
11. The claimants were the husband and the minor.
Hence, for the dependents in view of the judgment of
Magma (supra), individually Rs.40,000/- is granted and
in total Rs.80,000/- under the said head of consortium
loss is granted. The computation thus would be as under:
Rs.4,50,000/- Dependency loss
Rs. 15,000/- Loss to estate
Rs. 15,000/- Funeral expenses
Rs. 80,000/- Consortium
Rs.5,60,000/- Total Compensation
12. As the Tribunal has granted compensation of
Rs.3,28,000/- with interest at the rate of 7.5% per annum,
the claimants would be entitled to the enhanced amount
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of compensation of Rs.2,32,000/- with interest at the rate
of 7.5% per annum from the date of filing of the claim
petition till its realization.
13. In First Appeal 721 of 2010 which is connected to
MACP No.297 of 2000, the deceased minor was aged
about 10 years.
14. In Kishan Gopal & Anr. v. Lala & Ors., (2014) 1
SCC 244, the Hon'ble Supreme Court by referring the
facts of the case of minor aged about 10 years, had
considered the notional income as Rs.30,000/- by
applying multiplier of 15, considered Rs.4,50,000/- as
dependency loss and Rs.50,000/- has been considered
under the conventional heads for loss of love and
affection, funeral expense and last rites, as was held in
General Manager, Kerala State Road Transport
Corporation Vs. Susamma Thomas, reported in 1994
ACJ 1 (SC), which is referred to in Lata Wadhwa and
Ors. Vs. State of Bihar and Ors., reported in (2001)
1 Supreme Court Cases 197.
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15. In Meena Devi Vs. Nunu Chand Mahto @
Nemchand Mahto, reported in 2022 ACJ 2478, the
child died in a road accident was aged about 12 years.
The Hon'ble Apex Court after applying the ratio laid down
in case of Kurvan Ansari @ Kurvan Ali & Another Vs.
Shyam Kishore Murmu And Another, reported in
(2022) 1 SCC 317, and the principle laid down in Kishan
Gopal And Another Vs. Lala And Others (supra),
accepting the notional earning of Rs.30,000/- including
the future prospect, and by applying the multiplier of 15,
in view of the decision in Sarla Verma and Others vs.
Delhi Transport Corporation and Another, reported
in AIR 2009 SC 3104, the loss of dependency was
assessed as Rs.4,50,000/-, and further Rs.50,000/- was
added in conventional head, and, thus total compensation
of Rs.5,00,000/- was granted.
16. This Court considers that the present matter in
which the age of deceased minor was 10 years at the time
of accident, should be placed at the same pedestal, as had
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been observed in case of Kishan Gopal And Another Vs.
Lala And Others (supra) and Meena Devi Vs. Nunu Chand
Mahto @ Nemchand Mahto (supra). The notional earning
of the child including future prospect is required to be
considered as Rs.30,000/- and by applying multiplier of
15 as laid down in Sarla Verma and Others vs. Delhi
Transport Corporation and Another (supra), the loss of
dependency is required to be assessed as Rs.4,50,000/-,
and Rs.50,000/- is required to be granted under
conventional head, and, thus this Court considers that in
total compensation of Rs.5,00,000/- would be an
equitable, just and reasonable compensation for the
claimants.
17. Thus in accordance with the decision of Lata
Wadhwa & Ors. v. State of Bihar & Ors., reported in
(2001) 8 SCC 197, the tribunal has granted
Rs.1,25,000/- as total compensation. The additional
compensation i.e. the enhanced amount is, therefore,
Rs.3,75,000/- (Rs.5,00,000/- - Rs.1,25,000/-) and hence,
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the claimants herein are entitled to get the said enhanced
amount with interest at the rate of 7.5% per annum from
the date of filing of the claim petition till its realization.
18. In view of the above, the enhanced amount in all the
concerned matters is directed to be deposited within
eight weeks from the date of receipt of writ of this Court.
19. After the deposit of the money, let the amount be
paid to the claimants after due verification of identity by
RTGS or NEFT or Account payee cheque.
20. Present appeals are decided as aforesaid.
(GITA GOPI,J)
ILA
