Gujarat High Court
Bhaveshkumar Rameshbhai Patel Since ... vs Zunzabhai Manabhai Thakor on 5 September, 2024
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C/FA/2452/2008 JUDGMENT DATED: 05/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2452 of 2008
With
R/FIRST APPEAL NO. 2453 of 2008
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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BHAVESHKUMAR RAMESHBHAI PATEL SINCE DECD. THROUGH HEIRS
& ORS.
Versus
ZUNZABHAI MANABHAI THAKOR & ORS.
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Appearance:
MR. PANAM C SONI(7035) for the Appellant(s) No. 1,1.1,1.2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/09/2024
ORAL JUDGMENT
1. The present First Appeals, under Section 173 of
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C/FA/2452/2008 JUDGMENT DATED: 05/09/2024
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Motor Vehicles Act, 1988, are preferred by the appellant/s -
original claimant/s - legal heirs of the deceased persons,
being aggrieved and dissatisfied with common the judgment
and award dated 05.11.2007 passed by the Motor Accident
Claims Tribunal (Aux.), Viramgam in Motor Accident Claim
Petitions No.25 and 26 of 2007, respectively, by which the
Tribunal has awarded compensation of Rs.1,90,000/- and
Rs.2,07,500/-, respectively, with 7.5% per annum interest to
the claimant/s, holding Opponents No.2 and 3 i.e. owner and
Insurance Company of the Truck bearing registration No.GJ-
12-T-9972 liable, jointly and severally to the extent 50% and
opponent No.4 i.e. owner of the Motorcycle bearing
registration No.GJ-1-BG-9666 liable to the extent 50%.
2. Brief facts of the case, as per claimants, are as
under :
2.1 That on 14.12.2006 at about 3:00 p.m., deceased
persons, along with one Alkesh Prahladbhai Patel, who was
suffering from fever, were going to Viramgam from
Kalyanpura for his treatment. When they cross Viramgam
Crossing near village Valana, at that time, opponent No.1 -
driver came with the Truck bearing registration No.GJ-12-T-
9972, owned by opponent No.2, in rash and negligent
manner, endangering human life and in careless manner and
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in wrong side, dashed with the motorcycle. As a result, the
deceased persons sustained serious injuries. Ultimately, one of
the deceased persons i.e. driver of the motorcycle succumbed
to the injuries on the spot and another was in the hospital
during the treatment. Therefore, the legal heirs of the
deceased persons have filed claim petitions seeking
compensation 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, 2 and 4 i.e. driver and owner of the Truck and owner
of the motorcycle, respectively, have chosen not to appear and
contest the claim petition before the Tribunal. Opponent No.3
- Insurance Company of the Truck 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.
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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.
3.1 Learned advocate Mr. Panam Soni 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 persons were aged about only 20
years in both the appeals, at the time of accident and were
the salaried persons, as per the documentary evidence
produced on record before the Tribunal. He has fairly
submitted that at the relevant point of time, their monthly
income were Rs.6,000/-, qua each deceased, which is rightly
considered by the Tribunal. He has also fairly submitted that
the Tribunal has rightly considered the prospective income of
the deceased i.e. 50%. He has submitted that the Tribunal
has not properly considered 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, which should be 1/2 instead of 2/3, as
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the deceased was unmarried person. 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, which should be 18 instead of 11. He has
submitted that therefore, considering the loss of dependency,
it would be calculated as Rs.6,000/- as monthly income plus
50% prospective income minus 1/2 as personal expenses
multiplied by 12 months and multiplied by 18 multiplier
would be the total loss of dependency, which should be
awarded to the claimants by the learned Tribunal, qua both
the claim petitions.
He has submitted that the Tribunal has held both
the vehicles liable equally for the accident in question and
therefore, the motorcyclist and truck driver were held equally
liable i.e. 50% and 50%, qua First Appeal No.2452 of 2008
only, as it is a case of contributory negligence. Whereas with
regard to First Appeal No.2453 of 2008 is concerned, where
deceased was a pillion rider and therefore, that is a case of
composite negligence. Therefore, there would not be any
deduction qua the negligence from the loss of dependency
benefits. Therefore, the loss of dependency may be
apportioned accordingly in these appeals.
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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 two dependents, in both the appeals,
respectively, 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
3.3 He has submitted that the compensation is
required to be enhanced by modifying the award impugned
accordingly and these appeals may be allowed.
4. Per contra, Mr. Palak Thakkar, learned advocate
for respondent - Insurance Company has submitted that the
impugned common 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
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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 common
judgment and award passed by the Tribunal. From the
record, it transpires that the deceased persons were aged
about 20 years, in both the appeals, at the time of accident
and were the salaried persons, as per the documentary
evidence produced and proved before he Tribunal and their
monthly income was Rs.6,000/- at the relevant point of time,
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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 persons 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 50% prospective income, which was
properly calculated by the learned Tribunal, it would come to
Rs.3,000/-, and therefore, total income comes to Rs.9,000/- per
month. Since the deceased persons were aged about 20 years
and both were unmarried, 1/2 would be proper to be
deducted as personal expenses and therefore, it would come
to Rs.4,500/-. Hence, the income would come to Rs.4,500/- per
month and therefore, yearly, it would come to Rs.54,000/- and
applying 18 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.9,72,000/- as loss of dependency, which is required
to be awarded to the claimants.
6.2 In view of the ratio laid down by the Hon'ble
Apex Court in the case of National Insurance Company
Limited versus Pranay Shethi reported in (2017) 16 SCC 680,
it is clear that the "consortium" is the right of the spouse to
the company, care, help, comfort, guidance, society, solace,
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affection and sexual relations with his or her mate.
Therefore, this Court is of the view that the amount awarded
under this head should not be considered at the time of
deducting the proportionate amount of negligence held on the
part of the deceased. The negligence was of the deceased and
the spouse/parents/children, as the case may be, are not
responsible for the same and still they suffer for no fault of
theirs. Therefore, if the amount awarded under this head is
considered for deduction, then it will mean that they have
also contributed to the negligence of the deceased.
Even the same analogy can be applied for the
compensation to be awarded under the head of loss of estate
and funeral expenses and they also should not be considered
for the purpose of deduction. Hence, the amount awarded
under the head of loss of consortium, funeral expenses and
loss of estate should not be considered for deduction.
In view of above, with regard to First Appeal
No.2452 of 2008 is concerned, since it is a case of
contributory negligence, the loss of dependency would be
Rs.9,72,000, as discussed above, minus 50% negligence of the
motorcycle owner, which comes to Rs.4,86,000/-. Therefore,
Rs.4,86,000/- should be awarded to the claimants as loss of
dependency.
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Whereas, with regard to First Appeal No.2453 of
2008 is concerned, since it is a case of composite negligence
as the deceased was a pillion rider, there should not be any
deduction qua the loss of dependency benefits and therefore,
the claimants of this appeal are entitled to get 100% amount
under the loss of dependency head.
6.3 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.
6.4 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,
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.
6.5.1 Therefore, total compensation would be as under,
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which the claimants of First Appeal No.2452 of 2008 (MACP
No.25 of 2007) are entitled to get.
Particulars Amount (Rs.)
Loss of Dependency 4,86,000/-
(Rs.9,72,000/- minus Rs.4,86,000/- as 50%
negligence of the motorcycle owner, as
agreed by the claimants)
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 96,800/-
Total... 6,19,100/-
Less : Amount which is already awarded 1,90,000/-
Additional amount which is awarded 4,29,100/-
6.5.2 Therefore, total compensation would be as under,
which the claimants of First Appeal No.2453 of 2008 (MACP
No.26 of 2007) are entitled to get.
Particulars Amount (Rs.)
Loss of Dependency 9,72,000/-
Loss of Estate 18,150/-
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Funeral Expenses 18,150/-
Loss of consortium 96,800/-
Total... 11,05,100/-
Less : Amount which is already awarded 2,07,500/-
Additional amount which is awarded 8,97,600/-
7. Therefore, I hold that the claimants of both the
appeals / MACPs 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 These appeals are 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
decided by the Tribunal, from the date of claim petition till
its realisation, qua both the appeals / MACPs, as noted
above, respectively, before the concerned Tribunal, within a
period of six weeks from the date of receipt of this order.
Rest of the direction(s) of the Tribunal remain same.
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8.3 It would be open for the Insurance Company to
recover 50% awarded amount, along with accrued interest, if
any, qua First Appeal No.2453 of 2008 (MACP No.26 of
2007), from the motorcycle owner, in accordance with law, in
view of the decision of the Hon'ble Apex Court in the case of
Khenyei versus New India Assurance Company Limited
reported in (2015) 9 SCC 273.
8.4 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 respective claimants of both the appeals / MACPs, by
account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
8.5 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.6 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
