Gujarat High Court
Bhikhabhai Lalabhai Chamar vs Natwarbhai Dhanabhai Chamar on 4 September, 2024
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C/FA/2904/2013 JUDGMENT DATED: 04/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2904 of 2013
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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BHIKHABHAI LALABHAI CHAMAR
Versus
NATWARBHAI DHANABHAI CHAMAR & ANR.
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/09/2024
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 - Maniben
Lalabhai Chamar, being aggrieved and dissatisfied with the
common judgment and award dated 29.09.2012 passed by the
Motor Accident Claims Tribunal, Court No.8, City Civil Court,
Ahmedabad in Motor Accident Claim Petition No.445 of 2003,
by which the Tribunal has awarded compensation of
Rs.65,000/- with 8% per annum interest to the claimant/s,
holding Opponents No.1 and 2 i.e. driver-cum-owner and
insurance company of the Auto Rickshaw bearing registration
No.GJ-9-X-923 liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 That on 16.10.2002 at about 8;15 p.m., deceased -
Maniben Lalabhai Chamar, along with the claimant and one
maternal aunt named Lakhiben, was going towards Talod
from Badodara via Kesharpura village near the turning point
for social work at Dalani Muvadi by travelling as passengers
in the Auto Rickshaw bearing registration No.GJ-9-X-923
owned and driven by opponent No.1 in rash and negligent
manner, endangering to human life and so, he could not
control over his brakes and ultimately, said auto rickshaw
turned turtle near the turning point at Kesharpura village.
Hence, decased and other persons sustained injuires of
various parts of their body and were hospitalized as indoor
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patients in the Civil Hospital of Talod for treatment. The
deceased thereafter shifted to the Civil Hospital, Ahmedabad
for further treatment and ultimately, the deceased succumbed
to the injuries during the treatment. Therefore, the legal heir
of the deceased - son has filed claim petition seeking
compensation of Rs.3 lakhs with cost and interest for
unnatural and untimely death against the present
respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponent
No.1 i.e. driver-cum-owner has chosen not to appear and
contest the claim petition before the Tribunal. Opponent No.2
- Insurance Company has appeared and has filed its written
statement / objections by disputing all the averments made
by the claimant 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
compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
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appeal is preferred by the claimant/s for enhancement.
3. Learned advocate Mr. Hakim 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 fairly submitted that amount of award qua awarding
dependency benefits is just and proper, as the Tribunal has
rightly considered the income, deduction of personal expenses
and multiplier.
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 is one dependent and therefore, it would be
awarded Rs.48,400/- 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.
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
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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. 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
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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. Since there is no dispute
with regard to the income of the deceased, deduction of
personal expenses and multiplier and award of dependency
benefits, the same need not be re-considered and therefore,
the dependency benefits awarded by the Tribunal remains
unaltered.
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/- and
Rs.18,150/-, respectively, which would be the just and proper
compensation.
6.3 Further, there is one dependent 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,
Rs.40,000/- consortium to the dependent and 10% rise, which
comes to Rs.48,400/- as consortium to the dependent, which
should be awarded to the claimant/s.
6.4 Therefore, total compensation would be as under,
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which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 60,000/-
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 48,400/-
Total... 1,44,700/-
Less : Amount which is already awarded 65,000/-
Additional amount which is awarded 79,700/-
7. Therefore, I hold that the claimant/s is/are entitled
to get the total amount of compensation as mentioned
hereinabove, which would meet the ends of justice.
8. For the reasons recorded above, the following order
is passed.
8.1 The appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the
entire awarded amount, if yet not deposited, including the
enhanced amount, as noted above, with interest and cost as
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decided by the Tribunal, from the date of claim petition till
its realisation, before the concerned Tribunal, within a period
of four weeks from the date of receipt of this order. Rest of
the direction(s) of the Tribunal remain same.
8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal (including
enhanced amount), 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.
(SANDEEP N. BHATT,J)
M.H. DAVE
