Gujarat High Court
Legal Heirs Of Pradyumanbhai Nandlal ... vs Nandlal Bhimjibhai Dholakia on 5 September, 2024
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C/FA/217/2012 JUDGMENT DATED: 05/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 217 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 No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LEGAL HEIRS OF PRADYUMANBHAI NANDLAL DHOLAKIA : INDUBEN
NAND & ORS.
Versus
NANDLAL BHIMJIBHAI DHOLAKIA & ORS.
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Appearance:
MR MB PARIKH(576) for the Appellant(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1,3
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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 -
Pradyumnbhai Nandlal Dholakia, being aggrieved and
dissatisfied with the judgment and award dated
15.06.2010 passed by the Motor Accident Claims Tribunal
(Main), Amreli in Motor Accident Claim Petition No. 406
of 2001, by which the Tribunal has awarded
compensation of Rs.7,49,858/- with 9% per annum
interest to the claimant/s, holding opponents liable,
jointly and severally. The appellant was held liable to
the extent of 20% in the entire awarded amount of
Rs.9,37,322/-.
2. Brief facts of the case as per the case of the
appellant are as under:
2.1 On 16-03-2001, at about 06.00 a.m., when
Pradyumanbhai of M.A.C. Petition No.406 of 2001 along
with his relatives was going to Khopala to attend
religious function driving Indica Car No GJ-14-E-3600 on
correct side of the road at moderate speed and when
they reached near signpost of village Rasnal, at that
time, the driver of Luxury Bus No GJ-14-T-211 came
driving the said bus in a rash & negligent manner in
excessive speed endangering human life and dashed the
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said bus with Indica Car No GJ- 14-E-3600 being driven
by Pradyumanbhai and thus, the impugned accident took
place. Hence, applicant of M.A.C.P. No.406 of 2001 got
succumbed into injuries and applicant of M.A.C.P. No.408
of 2001, sustained serious injuries. Hence, the present
claim petition has been preferred.
2.2 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.
2.3 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
appeal is preferred by the claimant for enhancement.
3. Learned advocate the appellant/s - claimant/s has
submitted that the Tribunal has committed an error in
not properly calculating the amount of compensation. It
is 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, loss of
consortium, funeral expenses and loss of estate,
multiplier, and family circumstances, etc. It is submitted
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that the Tribunal has rightly considered the annual
income of the deceased Rs.80,500/- after considering the
material available on the record and taking into account
the nature of work of the deceased, as well as minimum
wages prevailed at the relevant time. It is further
submitted that looking to the age of the deceased and
keeping in view 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, 40% income should be added towards prospective
income of the deceased. He has submitted that in view
the decision of Hon'ble Apex Court in the Sarla Verma
versus Delhi Transport Corporation reported in (2009) 6
SCC 121, multiplier should be 16. It is also submitted
that the Tribunal has committed an error by awarding
meager compensation under the head of loss of estate
and funeral expenses, which should be more in view of
decisions of Hon'ble Apex Court in the case of : (i)
Magma General Insurance Company Limited versus Nanu
Ram and others reported in (2018) 18 SCC 130 (ii) New
India Assurance Co. Ltd. v. Somwati and others, reported
in 2020 (9) SCC 644 and (iii) United India Insurance
Co. Ltd., versus Satinder Kaur @ Satwinder Kaur
reported in (2021) 11 SCC 780. It is further submitted
that the deceased was married and therefore, he has left
the dependents in the family behind him. Therefore, the
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Tribunal has committed error by not properly awarding
compensation under the head of loss of consortium. It is
submitted that in view of the above, no amount is
required to be awarded towards loss of love and affection
as per various decisions of the Hon'ble Apex Court. It is
submitted that under other heads except above, the
Tribunal has rightly considered the amount of
compensation. It is submitted that the compensation is
required to be enhanced by modifying the award
impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocate for contesting
respondent No.3 - insurance company has submitted that
the impugned judgment and award passed by the
Tribunal is just and proper. The Tribunal has rightly not
considered the prospective income of the deceased. It is
also submitted that under the head of loss of estate and
funeral expenses, the Tribunal has rightly awarded
compensation. It is also submitted that under the head
of loss of consortium, the Tribunal has considered proper
compensation. However, from the submissions made by
learned advocate for the appellant/s that the Tribunal
has committed certain errors, on this aspect, learned
advocates for the respondent/s has submitted that if this
Court feels that there is some error in calculation of the
amount in view of settled position of law, in awarding
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compensation by the Tribunal, then the Court may pass
appropriate order, in the interest of justice. It is
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 claimant/s. At
the outset, I have considering the decision cited at the
bar by learned advocate for the appellant. The judgments
cited at the bar by learned advocate for the appellant is
helpful to the facts of the present case.
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. It is noted
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that the claimant has by and large claimed enhancement
towards prospective income of the deceased, loss of
consortium, funeral expenses and loss of estate,
multiplier, and family circumstances, etc. It transpires
that the Tribunal has rightly considered the annual
income of the deceased Rs.80,500/- after considering the
material available on the record and taking into account
the nature of work of the deceased, as well as minimum
wages prevailed at the relevant time. Furthermore,
looking to the age of the deceased at the time of
accident, i.e. 26 years and considering the decision of the
Hon'ble Apex Court in the case of Pranay Shethi (supra),
40% rise should be added as prospective income.
Therefore, it would come to Rs.1,12,700/- per month
income of the deceased. Further, considering the decision
of Hon'ble Apex Court in the case of Sarla Verma
(supra) and Pranay Shethi (supra), 1/3 would be the
deduction towards personal expense, which is rightly
considered by the Tribunal. Therefore, it would come to
Rs.75,133/- per month multiplied by 16 multiplier keeping
in view the decision of Hon'ble Apex Court in the case
of Sarla Verma (supra), it would come to Rs.12,02,128/-
as loss of dependency benefits, which should be awarded
by the Tribunal.
6.2 Further, under the head of loss of consortium, the
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Tribunal has not awarded anything, which should be on
higher side. It is not in dispute that there are four
dependents in the family. In view of the decisions of
Hon'ble Apex Court in the cases of : (i) Magma General
Insurance Company Limited versus Nanu Ram and
others reported in (2018) 18 SCC 130 (ii) New India
Assurance Co. Ltd. v. Somwati and others, reported in
2020 (9) SCC 644 and (iii) United India Insurance Co.
Ltd., versus Satinder Kaur @ Satwinder Kaur reported in
(2021) 11 SCC 780, under the head of loss of
consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%)
would be proper to award, therefore, Rs.48,400/- x 3
dependents = Rs.1,45,200/- would be the compensation
under the head of loss of consortium.
6.3 Further, under the head of loss of estate and
funeral expenses, if we award Rs.18,150/- each, would be
the just and proper compensation, considering the
decisions of Hon'ble Apex Court in the case of Magma
General Insurance Company Limited (supra) .
Furthermore, under other heads except the above, the
amount awarded by the Tribunal is not disputed by
learned advocate for the appellant/s, otherwise also, the
Tribunal has rightly considered the amount under those
heads. Furthermore, in view of the above award, no
amount is required to be awarded towards loss of love
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and affection as per various decisions of the Hon'ble
Apex Court.
6.4 Therefore, total compensation would be as under,
which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of dependency 12,02,128/-
benefits
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 1,45,200/-
Total... 13,83,628/-
Total entitled amount... 11,06,902
(-20% contributory
negligence)
Less : Amount which is 7,49,858/-
already awarded
Additional amount which 3,57,044/-
is awarded
7. Therefore, I hold that the claimant/s are entitled to
get the total amount of compensation of Rs.11,06,902/-
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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 shall
remain same. The Tribunal has already awarded
Rs.7,49,858/- and, therefore, remaining amount of
Rs.3,57,044/- would be the enhanced amount of
compensation payable to the claimant/s.
8. For the reasons recorded above, the following order
is passed.
8.1 The present appeal is allowed to the aforesaid
extent.
8.2 The impugned judgment and award dated 15.06.2010
passed by the Motor Accident Claims Tribunal (Main),
Amreli in Motor Accident Claim Petition No. 406 of 2001
is modified to the aforesaid extent.
8.3 The Insurance Company(s) is/are directed to deposit
the enhanced amount Rs.3,57,044/- with 9% p.a. interest
with cost, if any, from the date of claim petition till its
realisation before the concerned Tribunal, within a period
of six weeks from the date of receipt of this order.
8.4 The Tribunal shall disburse the entire awarded
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amount lying in the FDR and/or with the Tribunal, with
accrued interest thereon, if any, to the claimant/s, 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)
DIWAKAR SHUKLA
