Gujarat High Court

Prabhubhai Jagjivandas - Heir And Lr Of ... vs Nareshbhai T Patel on 10 September, 2024

                                                                                                                 NEUTRAL CITATION




                             C/FA/2941/2021                                     JUDGMENT DATED: 10/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                    R/FIRST APPEAL NO. 2941 of 2021


                       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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                           PRABHUBHAI JAGJIVANDAS - HEIR AND LR OF DECD. KAILASHBEN
                                             PRABHUBHAI & ORS.
                                                    Versus
                                          NARESHBHAI T PATEL & ORS.
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                       Appearance:
                       MS AMRITA AJMERA(5204) for the Appellant(s) No. 2,3 - Ori. Claimants
                       MR HG MAZMUDAR(1194) for the Defendant(s) No. 2 - New India
                       Assurance Co. Ltd.
                       MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4 - United India
                       Insurance Co. Ltd.
                       NOTICE SERVED for the Defendant(s) No. 1,3 - owner of Jeep and
                       Rickshaw, respectively
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                            Date : 10/09/2024

                                                           ORAL JUDGMENT

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C/FA/2941/2021 JUDGMENT DATED: 10/09/2024

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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 - Kailashben

Prabhubhai, being aggrieved and dissatisfied with the

judgment and award dated 18.03.2016 passed by the Motor

Accident Claims Tribunal (Aux.), Surendranagar in Motor

Accident Claim Petition No.343 of 2005, by which the

Tribunal has awarded compensation of Rs.4,25,100/- with 9%

per annum interest to the claimant/s, holding Opponent No.1

liable to the extent 50% and Opponents No.3 and 4 to the

extent 50%, jointly and severally.

2. Brief facts of the case are as under:

2.1 That on On 10.05.2005, deceased - Kailashben was

travelling in the Jeep bearing registration No.GJ-2-K-7639

being owned by opponent No.1 and driven by the Jeep driver

in rash and negligent manner and at an excessive speed. At

about 10:00 to 10:30 a.m., as he reached on Surendranagar -

Limbdi Road between Limbdi and Ankevaliya, the Jeep driver

dashed the Jeep and against the Chhakdo Rickshaw, which

was coming from opposite side and jeep turned turtle and

the deceased sustained serious injuries and ultimately, the

deceased succumbed to the injuries. Therefore, the legal heirs

of the deceased - widower / husband and two children have

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filed claim petition seeking compensation of Rs.8 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.3 i.e. owner of the Rickshaw bearing registration No.GJ-

13-U-9235 has chosen not to appear and contest the claim

petition before the Tribunal. Opponent No.1, 2 and 4 i.e.

owner and insurance company of the Jeep bearing

registration No.GJ-2-K-7639 and opponent No.4 - Insurance

Company of the Rickshaw, respectively, 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

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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3.1 Learned advocate Ms. Amrita Ajmera for the

appellant/s - claimant/s has submitted that the Tribunal has

committed an error in not properly calculating the amount of

compensation. She 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. She has

submitted that the deceased was aged about only 30 years at

the time of accident and was running grocery store in the

name and style of Jay Ambe General Stores, Jashapar and

selling snacks and grocery. She has submitted that at the

relevant point of time, her monthly income was Rs.4,000/-,

which is required to be considered as just and proper income

at the relevant point of time. She has submitted that the

Tribunal has not properly considered the prospective income

of the deceased in view of the decision of the Hon'ble Apex

Court. She has fairly submitted that the learned Tribunal

has rightly considered the deduction of personal expenses

looking to the age of the deceased and multiplier. She has

submitted that therefore, considering the loss of dependency,

it would be calculated as Rs.4,000/- as monthly income plus

40% prospective income minus 1/3rd as personal expenses

multiplied by 12 months and multiplied by 17 multiplier

would come to Rs.7,61,736/- total loss of dependency, which

should be awarded to the claimants by the learned Tribunal.

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3.2 She 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. She has also submitted that towards loss of

consortium, there are three 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 She 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. Mazmudar and Mr. Nanavati,

learned advocates for the respective respondent - Insurance

Companies have 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. 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.

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They have 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 deceased was aged about 30 years and

was running grocery store in the name and style of Jay

Ambe General Stores, Jashapar and selling snacks and

grocery and at the relevant point of time, her monthly

income was required to be considered Rs.4,000/- as just and

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proper income. Therefore, it should be considered as monthly

income of the deceased. Hence, it would come to Rs.4,000/-

per month and by adding 40% prospective income, as not

calculated by the learned Tribunal, it would come to

Rs.1,600/- and therefore, total income comes to Rs.5,600/- per

month. Since the deceased is aged about 30 years and thre

are three dependents, 1/3rd would be proper to be deducted

as personal expenses, which is rightly considered and

therefore, it would come to Rs.1,866/-. Hence, the income

would come to Rs.3,734/- per month and therefore, yearly, it

would come to Rs.44,808/- and applying 17 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.7,61,736/- 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.

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6.3 Further, there are three 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 and 10% rise, which comes to Rs.48,400/- as consortium to each dependent,

which total comes to Rs.1,45,200/-, 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                                                    7,61,736/-

                            Loss of Estate                                                              18,150/-

                            Funeral Expenses                                                            18,150/-

                            Loss of consortium                                                       1,45,200/-

                                                                               Total...                9,43,236/-

                            Less : Amount which is already awarded                                   4,25,100/-

                                      Additional amount which is awarded                             5,18,136/-

7. Therefore, I hold that the claimant/s is/are entitled

to get the total amount of compensation as mentioned

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hereinabove, which would meet the ends of justice.

8. For the reasons recorded above, the following order

is passed.

8.1 The appeal is partly allowed.

8.2 Respondent No.4 - Insurance Company is directed

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

including the enhanced amount, as noted above, with interest