Gujarat High Court
Girishbhai Tribhovanbhai Thakor vs Vasim Yasinbhai Kadiwala on 1 October, 2024
NEUTRAL CITATION
C/FA/829/2024 ORDER DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 829 of 2024
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GIRISHBHAI TRIBHOVANBHAI THAKOR & ORS.
Versus
VASIM YASINBHAI KADIWALA & ORS.
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MR DARSHIT R BRAHMBHATT(8011) for the Defendant(s) No. 3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/10/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of the Motor
Vehicles Act, 1988, is preferred by the appellants - original
claimants, being aggrieved and dissatisfied with the impugned
common judgment and award dated 03.12.2021 passed by the
Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in
Motor Accident Claim Petition No.482 of 2019, by which the
Tribunal has awarded compensation of Rs.10,17,200/- from all
opponents, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 05.04.2019, the son of the claimant Nos.1 and 2 and
the brother of the claimant No.3 had gone for loading and
unloading the Chilly bags in Pickup Van (Dalu) bearing
registration No. GJ-23-AT-0568 and he was travelling in the said
Pickup Van (Dalu) and when the said pickup (Dalu) reached near
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exit of Nadiad on the Ahmedabad-Vadodara Express highway, at
about 07:30 p.m., one driver of the Eicher truck came driving it
from behind and over took the Pickup Van (Dalu), due to which,
the driver of the Pickup Van (Dalu) got frightened and took a
sudden turn, as a result of which the Pickup Van (Dalu) turned
turtle and at that time, the opponent No.l came driving the
Wagon-R Car bearing registration No.GJ-06-EH-7147 at full
speed and in rash and negligent manner from behind and
dashed it with the Pickup Van (Dalu) due to which, the deceased
had sustained serious injuries and died on the spot.
2.2 Therefore, the legal heirs of the deceased have filed claim
petition seeking compensation of Rs.25,00,000/- with cost and
interest for unnatural and untimely death against the present
respondents before the Tribunal.
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 compensation as
noted above.
3. Learned advocate Mr.Bhalodi for the appellants - claimants
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
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about only 21 years at the time of accident and was doing labour
work. He has submitted that at the relevant point of time, his
monthly income was Rs.9000/-. He has submitted that the learned
Tribunal has erred in considering the prospective income,
deduction of personal expenses looking to the dependents and
multiplier looking to the age of the deceased. He has submitted
that therefore, considering the loss of dependency, it would be
calculated as Rs.8100/- as monthly income plus Rs.3240/- as
40% prospective income minus Rs.5670/- as personal expenses
(1/2) multiplied by 12 months and multiplied by 18 multiplier
would come to Rs.12,24,720/- total future loss, which should be
awarded to the claimants by the learned Tribunal.
3.1 He has further submitted that considering the general and
non-pecuniary damages, the learned Tribunal should award
Rs.18,150/- each towards loss of estate and funeral expenses.
He has also submitted that towards loss of consortium, there are
two dependents and therefore, it would be awarded Rs.48,400/-
to each dependent 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. To buttress his submission, he has relied upon
the judgment of the Hon'ble Apex Court in case of Chandra @
Chanda @ Chandraram and another Vs. Mukesh Kumar Yadav
and others reported in (2022) 1 SCC 198.
3.2 He has submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and
this appeal may be allowed.
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4. Per contra, Mr.H.G.Mazmudar and learned advocate
Mr.Rathin Raval, learned advocates for respondent - Insurance
Companies have 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. They have submitted that
under the head of loss of estate and funeral expenses, the Tribunal
has rightly awarded compensation. They have submitted that the
amount under the head of loss of consortium is just and proper.
They have 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 learned Tribunal. From the record, it
transpires that the deceased was aged about 38 years and was a
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driver. So far as his monthly income is concerned, no
documentary evidence has been produced. But, in view of the
judgment of the Hon'ble Apex Court in case of Chandra @
Chanda @ Chandraram and another Vs. Mukesh Kumar Yadav
and others reported in (2022) 1 SCC 198 wherein it is observed
that merely because claimants were unable to produce
documentary evidence to show the monthly income of deceased,
same does not justify adoption of lowest tier of minimum wage
while computing the income. Therefore, it would meet the ends
of justice if monthly income is considered Rs.8100/- as provided
under the notification of minimum wages prevailing at the
relevant point of time. By adding 40% prospective income, it
would come to Rs.11340/- and therefore, total income comes to
Rs.11340/- per month. Since at the time of accident, there were
total three dependents, 1/2 would be proper to be deducted as
personal expenses and therefore, it would come to Rs.5670/-.
Hence, the income would come to Rs.5670/- per month and
therefore, yearly, it would come to Rs.68,040/-. As the deceased
is aged about 21 years, multiplier of 18 is proper as per 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.12,24,720/- 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.18,150/- each, which would be
the just and proper compensation.
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6.3 Further, there are two 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 and in case of
Rasmita Biswal Vs. Divisional Manager, National Insurance
Company reported in 2022 (2) SCC 767, Rs.40,000/- consortium
to each dependent and 10% rise, which comes to Rs.48,400/- as
consortium to each dependent, which total comes to
Rs.96,800/-, 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 12,24,720/-
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium (Parents) 96,800/-
Total... 13,57,800/-
Less : Amount which is already awarded 10,17,200/-
Additional amount which is awarded 3,40,620/-
7. Therefore, I hold that the claimants are entitled to get the
total amount of compensation of Rs.13,57,800/- 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.
8. For the reasons recorded above, the following order is
passed.
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8.1 The present appeal is partly allowed.
8.2 The Insurance Companies are directed to deposit the
enhanced amount Rs.3,40,620/- with 9% p.a. interest from the
date of claim petition till its realization before the concerned
Tribunal, within a period of six weeks from the date of receipt of
this order. The respondent No.2 - United India Insurance
company and respondent No.4 - Reliance General Insurance
Company Limited are liable to pay 60% and 40% respectively of
enhanced amount of Rs.3,40,620/- to the claimants.
8.3 The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimants, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
8.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
