Gujarat High Court

Fulbanu Nabimohemmed Makrani (Pathan) vs Jagdipsinh Pushpatsinh Raulji on 5 September, 2024

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                             C/FA/1973/2012                                     JUDGMENT DATED: 05/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                    R/FIRST APPEAL NO. 1973 of 2012


                       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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                                  FULBANU NABIMOHEMMED MAKRANI (PATHAN) & ORS.
                                                      Versus
                                       JAGDIPSINH PUSHPATSINH RAULJI & ANR.
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                       Appearance:
                       MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3,4,5
                       MR SUNIL B PARIKH(582) 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 : 05/09/2024

                                                           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 -

Nabimohammad Suleman Makrani (Pathan), being aggrieved

and dissatisfied with the judgment and award dated

20.01.2012 passed by the Motor Accident Claims Tribunal

(Main), Panchmahals at Godhra in Motor Accident Claim

Petition No.757 of 2007, by which the Tribunal has awarded

compensation of Rs.3,37,000/- with 9% per annum interest to

the claimant/s, holding Opponents No.1 and 2 i.e. driver-cum-

owner and the insurance company of the Motorcycle bearing

registration No.GJ-6-AD-5628 liable, jointly and severally.

2. Brief facts of the case, as per claimants, are as

under :

2.1 That on 23.01.2007 at about 6:00 p.m., deceased-

Nabimohammad Suleman Makrani (Pathan) was returning

from attending his job at Hamirpur at Dadi Bricks on his

bicycle to Vaktapur village where he was residing on the

correct side of the road in moderate speed. At that time,

near Vaktapur Patiya on Godhra-Vadodara Road, opponent

No.1 - driver-cum-owner came with his Motorcycle bearing

registration No.GJ-6-AD-5628 in full speed and in rash and

negligent manner endangering human life and dashed with

the deceased. As a result, the deceased sustained serious

injuries and shifted to initially Civil Hospital, Godhra and

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thereafter, to S.S.G. Hospital, Vadodara. Ultimately, the

deceased succumbed to the injuries. Therefore, the legal heirs

of the deceased -, widow and four minor children have filed

claim petition seeking compensation of Rs.9,75,000/- 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 - driver-cum-owner has chosen not to appear and

contest the claim petition before the Tribunal. Opponent No.2

- Insurance Company of the Motorcycle has appeared and

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

appeal is preferred by the claimant/s for enhancement.

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3.2 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 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 about only 45 years at the time of

accident and was a skilled labourer and working in the

Bricks Factory. He has faily submitted that at the relevant

point of time, his monthly income was Rs.3,000/-, which is

rightly considered by the Tribunal. He has submitted that

the Tribunal has not properly considered the prospective

income of the deceased, the deduction of personal expenses

looking to the number of dependents as per the decision of

the Hon'ble Apex Court in the case of National Insurance

Company Limited versus Pranay Shethi reported in (2017) 16

SCC 680. He has also submitted that the Tribunal has not

properly considered multiplier as per the decision of the

Hon'ble Apex Court in the case of Sarla Verma versus Delhi

Transport Corporation reported in (2009) 6 SCC 121. He has

submitted that therefore, considering the loss of dependency,

it would be calculated as Rs.3,000/- as monthly income plus

25% prospective income minus 1/4 as personal expenses

multiplied by 12 months and multiplied by 14 multiplier

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would be the total future loss of income, which should be

awarded to the claimants by the learned Tribunal.

3.2 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 five dependents and therefore,

Rs.48,400/- should be awarded to each dependent 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.

3.3 He has further submitted that the accident

occurred on 23.01.2017 and the deceased died on 28.01.2017

and the deceased was immediately shifted to the Civil

Hospital, Godhra and thereafter to the S.S.G. Hospital,

Vadodara for the treatment due to the injuries sustained in

the accident. Therefore, as per the decision of the Hon'ble

Apex Court in the case of Syed Sadiq versus United India

Insurance Co. Ltd., reported in (2014) 2 SCC 735, the

compensation of Rs.40,000/- under the head of pain, shock

and suffering may be granted to the claimants.

3.4 He has submitted that the compensation is

required to be enhanced by modifying the award impugned

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accordingly and this appeal may be allowed.

4. Per contra, Mr. Sunil Parikh, 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. 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

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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 45 years at the

time of accident and was a skilled labourer and was working

in a Bricks Factory and his monthly income was Rs.3,000/-

at the relevant point of time, which is rightly considered by

the Tribunal and there is no dispute about it. Therefore, it

should be considered as monthly income of the deceased and

considering the decision of the Hon'ble Apex Court in the

case of Sarla Verma versus Delhi Transport Corporation

reported in (2009) 6 SCC 121 by adding 25% prospective

income, which was not properly calculated by the learned

Tribunal, it would come to Rs.750/-, and therefore, total

income comes to Rs.3,750/- per month. Since the deceased is

aged about 45 years and there are total five dependents, 1/4 th

would be proper to be deducted as personal expenses

and therefore, it would come to Rs.938/-. Hence, the income

would come to Rs.2,812/- per month and therefore, yearly, it

would come to Rs.33,744/- and applying 14 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

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Verma versus Delhi Transport Corporation reported in (2009)

6 SCC 121, it would come to Rs.4,72,416/- as future loss of

income, 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/- and

Rs.18,150/-, respectively, which would be the just and proper

compensation.

6.3 Further, there are five 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, Rs.40,000/- consortium to each dependent / original claimant

and 10% rise, which comes to Rs.48,400/- as consortium to

each dependent / original claimant, which should be awarded

to the claimants.

6.4 Further, it is a matter of record that after the

accident, the deceased was first shifted to the Civil Hospital,

Godhra and thereafter, to the S.S.G. Hospital, Vadodara,

where he succumbed to the injuries. The accident was

happened on 23.01.2017 and the deceased died on 28.01.2017.

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Therefore, the compensation under the head of pain, shock

and suffering should be granted keeping in mind the ratio

laid down by the Hon'ble Apex Court in the case of Syed

Sadiq (supra).

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                                             4,72,416/-

                            Loss of Estate                                                       18,150/-

                            Funeral Expenses                                                     18,150/-

                            Loss of consortium                                                2,42,000/-

                            Pain, shock and suffering                                            40,000/-

                            Total...                                                            7,90,716/-

                            Less : Amount which is already awarded                            3,37,000/-

                            Additional amount which is awarded                                4,53,716/-

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

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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