Gujarat High Court

Sarojben Shailendrasinhji Rathod vs Girishbhai Dahyabhai Mahida on 5 September, 2024

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                             C/FA/387/2018                                     JUDGMENT DATED: 05/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                    R/FIRST APPEAL NO. 387 of 2018


                       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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                                       SAROJBEN SHAILENDRASINHJI RATHOD & ORS.
                                                        Versus
                                          GIRISHBHAI DAHYABHAI MAHIDA & ORS.
                       ==========================================================
                       Appearance:
                       DR RG DWIVEDI, ADVOCATE for MS POOJA H HOTCHANDANI,
                       ADVOCATE for the Appellant(s) No. 1,2,3,4 - Ori. Claimants

                       MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3 - The Oriental
                       Insurance Co. Ltd.

                       MR PRADIP J PATEL & MR. RAJESH G BAROT, ADVOCATES for the
                       Defendant(s) No. 2

                       RULE SERVED for the Defendant(s) No. 1,4

                       MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 5 - Iffco Tokio
                       General Insurance Co. Ltd.
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                           Date : 05/09/2024


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                             C/FA/387/2018                                           JUDGMENT DATED: 05/09/2024

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                                                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellant/s -

original claimant/s - legal heirs of the deceased -

Shailendrasinhji Pravinsinhji Rathod, being aggrieved and

dissatisfied with the judgment and award dated 29.06.2016

passed by the Motor Accident Claims Tribunal (Aux.),

Vadodara in Motor Accident Claim Petition No.481 of 2010, by which the Tribunal has awarded compensation of

Rs.7,73,000/- with 9% per annum interest to the claimant/s,

holding Opponents No.1 to 3 i.e. driver, owner and insurance

company of the Travera Car bearing registration No.GJ-6-Z-

3645 liable, jointly and several. It is noted that the Tribunal

has exonerated opponents No.4 and 5 i.e. owner and

insurance company of the Motorcycle bearing registration

No.GJ-6-DF-6912 from the liability.

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

under :

2.1 That on 13.02.2010 in noon time, deceased was

going on Motorcycle bearing registration No.GJ-6-DF-6912, as

a pillion rider. The motorcycle was driven on the correct side

of the road and in moderate speed, observing traffic rules.

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When they reached at the place of accident, opponent No.1 -

driver of Travera Car bearing registration No.GJ-6-Z-3645,

owned by opponent No.2, came in full speed and in rash and

negligent manner, endangering human life and without

observing traffic rules and dashed with the motorcycle from

behind. As a result, the deceased sustained serious injuries.

Ultimately, the deceased succumbed to the injuries. Therefore,

the legal heirs of the deceased - widow, two minor children

and father have filed claim petition seeking compensation of

Rs.15 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. Opponents

No.1, 2 and 4 i.e. driver and owner of the Travera Car and

owner of the Motorcycle have chosen not to appear and

contest the claim petition before the Tribunal. Opponents

No.3 and 5 i.e. Insurance Company of the Travera Car and

Motorcycle have appeared and filed their written statements /

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

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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.

3.2 Learned advocate Dr. R.G. Dwivedi 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 33 years at

the time of accident and was doing agriculture activities. He

has submitted that at the relevant point of time, his monthly

income was required to be considered as Rs.5,000/-, which

was not considered by the Tribunal. He has fairly submitted

that the Tribunal has considered 50% prospective income of

the deceased, which should be 40% in view of the decision of

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

Company Limited versus Pranay Shethi reported in (2017) 16

SCC 68. He has also fairly submitted that the Tribunal has

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rightly considered the deduction of personal expenses as well

as multiplier while calculating the total loss of dependency

benefits. He has submitted that therefore, considering the loss

of dependency, it would be calculated as Rs.5,000/- as

monthly income plus 40% prospective income minus 1/4 as

personal expenses multiplied by 12 months and multiplied by

16 multiplier, would come to Rs.10,08,000/-, which would be

the total loss of dependency, 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 four claimants / dependents and

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

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 submitted that the compensation is

required to be enhanced by modifying the award impugned

accordingly and this appeal may be allowed.

4.1 Per contra, Mr.Daxshesh Mehta, learned advocate

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for contesting respondent No.3 - Insurance Company of the

Travera Car as well as learned advocates Mr. Pradip Patel

and Rajesh Barot for respondent No.2 - owner of the Travera

Car have submitted that the Tribunal has erred in holding

opponents No.1 to 3 liable solely. They have submitted that

the Tribunal ought to have held liable both the vehicles in

question equally liable for the accident in question. They

have submitted that the impugned award may be modified to

that extent. They have submitted that 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.

4.2 Learned advocate Mr. Krunal Saxena for

respondent No.5 - Insurance Company of the Motorcycle has

submitted that the Tribunal has passed just and proper

award and no interference be made by this Court. He has

submitted that the Tribunal has exonerated the insurance

company of the motorcycle.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

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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 Tribunal. From the record, it

transpires that the deceased was aged about 33 years at the

time of accident and was doing agriculture activities and his

monthly income was Rs.5,000/- at the relevant point of time,

which was not properly considered by the Tribunal. 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 40% prospective

income, which was wrongly calculated 50% by the learned

Tribunal, it would come to Rs.2,000/-, and therefore, total

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income comes to Rs.7,000/- per month. Since the deceased is

aged about 33 years and there are total four dependents,

th would be proper to be deducted as personal

expenses and therefore, it would come to Rs.1,750/-. Hence,

the income would come to Rs.5,250/- per month and therefore,

yearly, it would come to Rs.63,000/- and applying 16

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 Verma versus Delhi Transport Corporation

reported in (2009) 6 SCC 121, it would come to

Rs.10,08,000/- as loss of dependency, 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 four original claimants /

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

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each original claimant / dependent 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 Therefore, total compensation would be as under,

which the claimant/s is/are entitled to get.

                            Particulars                                                 Amount (Rs.)

                            Future Loss of Income                                                 10,08,000/-

                            Loss of Estate                                                           18,150/-

                            Funeral Expenses                                                         18,150/-

                            Loss of consortium                                                     1,93,600/-

                            Total...                                                                12,37,900/-

                            Less : Amount which is already awarded                                 7,73,000/-

                            Additional amount which is awarded                                     4,64,900/-

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.

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8.1 The appeal is partly allowed.

8.2 Respondent No.3 - Insurance Company is directed

to deposit the entire awarded amount, if yet not deposited,

including the enhanced amount, as noted above, with interest