Gujarat High Court
Heirs Of Deceased Ajaybhai Kalubhai @ ... vs Grasim Industries Limited on 9 September, 2024
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 387 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
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 ?
==========================================================
HEIRS OF DECEASED AJAYBHAI KALUBHAI @ KALUJIB BHIL (ADIVASI)
& ORS.
Versus
GRASIM INDUSTRIES LIMITED & ANR.
==========================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,1.1,1.2,2,3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of
Motor Vehicles Act, 1988, is preferred by the appellant/s -
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
original claimant/s - legal heirs of the deceased - Ajaybhai
Kalubhai @ kaluji Bhil (Adivasi), being aggrieved and
dissatisfied with the judgment and award dated 30.11.2015
passed by the Motor Accident Claims Tribunal (Aux.), Kheda
at Nadiad in Motor Accident Claim Petition No.603 of 2013,
by which the Tribunal has awarded compensation of
Rs.5,63,271/- with 9% per annum interest to the claimant/s,
holding Opponents No.1 and 2 i.e. owner and insurance
company of the Truck bearing registration No.MP-9-HG-4042
liable, jointly and several. It is noted that the Tribunal has
held Truck driver negligent to the extent 90% and deceased
to the extent 10% qua the accident in question.
2. Brief facts of the case, as per claimants, are as
under :
2.1 That on 08.04.2013, deceased - Ajaybhai Kalubhai
@ Kaluji Bhil (Adivasi) was plying the Rickshaw and other
two persons were also travelling in the said Rickshaw and
when they reached near the place of accident, driver of
opponent No.1 came driven by Truck bearing registration
No.MP-9-HG-4042 in excessive speed, in rash and negligent
manner and dashed his Truck with the Rickshaw. As a
result, the deceased sustained serious injuries. Ultimately, the
deceased succumbed to the injuries. Therefore, the legal heirs
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
of the deceased - widow, minor child and parents have filed
claim petition seeking compensation of Rs.9 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 - owner of the Truck has chosen not to appear and
contest the claim petition before the Tribunal. Opponent No.2
has appeared and filed their 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.
3.1 Learned advocate Mr. Paresh M. Darji for the
appellant/s - claimant/s has submitted that the Tribunal has
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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 22 years at
the time of accident and was doing business of spectacles. He
has submitted that at the relevant point of time, his monthly
income was Rs.5,470/- as per the rates of minimum wages
prevailing in the State and as per the Minimum Wages Act
in view of the decision of the Hon'ble Apex Court in the case
of Govind Yadav versus National Insurance Company Limited
reported in 2012 ACJ 28 (SC), which is not properly
considered by the Tribunal. He has further submitted that
the learned Tribunal has not considered the prospective
income in view of 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 fairly submitted that
the Tribunal has rightly considered the deduction of personal
expenses looking to the age of the deceased and dependents
and multiplier. He has submitted that therefore, considering
the loss of dependency, it would be calculated as Rs.5,470/-
as monthly income plus 40% prospective income minus 1/3 as
personal expenses multiplied by 12 months and multiplied by
18 multiplier would come to Rs.11,02,896/- total loss of
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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 original claimants / dependents
and therefore, it would be awarded Rs.48,400/- to each
original 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. 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
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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
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 Tribunal has considered the age of the
deceased as 22 years and was doing business of spectacles
and his monthly income was Rs.5,470/- at the relevant point
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
of time, as per the minimum wage prevailing in the State of
Gujarat, keeping in mind the ratio laid down by the Hon'ble
Apex Court in the case of Govind Yadav (supra). It is
required to be noted that on one hand, the Tribunal has
observed that the deceased was a skilled labourer /
businessman and on the other hand, the Tribunal has failed
to consider the minimum wage prevailing in the State of
Gujarat at that time. The Tribunal has committed an error
to that extent only, which is required to be corrected in this
appeal. Therefore, looking to the minimum wages prevailing
in the State of Gujarat at the relevant time, it should be
considered as monthly income of the deceased. Hence, it
would be Rs.5,470/- per month as minimum wage of a skilled
labourer / businessman and by adding 40% prospective
income, as not calculated by the learned Tribunal, it would
come to Rs.2,188/- and therefore, total income comes to
Rs.7,658/- per month. Since the deceased is aged about 22
years and there are total four dependents / original
claimants, 1/3 would be proper to be deducted as personal
expenses and therefore, it would come to Rs.2,552/-. Hence,
the income would come to Rs.5,106/- per month and therefore,
yearly, it would come to Rs.61,272/- 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 (supra), it would come to
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
Rs.11,02,896/- as total loss of dependency benefit, which is
required to be awarded to the claimants.
6.2 Further, in view of above, it is noted that the
Tribunal has held Truck driver negligent to the extent 90%
and deceased i.e. Rickshaw driver to the extent 10%.
Therefore, from the total loss of dependency benefits i.e.
Rs.11,02,896/-, which would be the total loss of dependency,
as noted above, the amount of Rs.1,20,290/- i.e. 10%
negligence of the deceased, is required to be deducted, as this
Court does not warrant any interference qua negligence part,
it would come to Rs.9,92,606/-, which is required to be
awarded to the claimants as loss of dependency.
6.3 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,
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
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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.
6.4 Further, considering 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, 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.
6.5 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
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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.
6.6 Therefore, total compensation would be as under,
which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 9,92,606/-
(Rs.11,02,896/- minus Rs.1,10,290/- as 10%
negligence of the deceased, as held by the
Tribunal)
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,93,600/-
Total... 12,22,506/-
Less : Amount which is already awarded 5,63,271/-
Additional amount which is awarded 6,59,235/-
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.
NEUTRAL CITATION
C/FA/387/2019 JUDGMENT DATED: 09/09/2024
undefined
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
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
