Gujarat High Court
Vrundavan Narandas Kakkad Legal Heirs ... vs Shankerlal Veljibhai Patel on 11 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2212 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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VRUNDAVAN NARANDAS KAKKAD LEGAL HEIRS OF DECEASED & ORS.
Versus
SHANKERLAL VELJIBHAI PATEL & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Appellant(s) No. 1
MR AMAR D MITHANI(484) for the Appellant(s) No. 1.1,1.2,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of
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Motor Vehicles Act, 1988, is preferred by the appellant/s
- original claimant/s - legal heirs of the deceased -
Dipendra Vrundavanbhai, being aggrieved and dissatisfied
with the judgment and award dated 30.03.2011 passed
by the Motor Accident Claims Tribunal (Aux.), Junagadh
in Motor Accident Claim Petition No.764 of 1997, by
which the Tribunal has awarded compensation of
Rs.11,37,000/- with 7.5% per annum interest to the
claimant/s, holding opponent Nos.1 to 3 and Nos.4 and 5
liable, jointly and severally to the extent 50:50
respectively.
2. Brief facts of the case are as under:
2.1 It is the case of the appellant in this appeal that
on 10/10/1997 at about 11-00 night, Vrundavanbhai, his
deceased son Dipendra and one Vrujlalbhai Damani were
coming from Rajkot to Junagadh in an Ambassador Car
No. GJH-1945 of the ownership of opponent no.5 and the
opponent no. 4 was driving the said ambassador. It is
the say of the appellant/s that when the said
ambassador car reached in between village Bhojpara-
Biliyala on Rajkot Gondal highway road, one truck
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bearing no. GQY-4178 was parked by opponent no.1,
without any side signals, reflectors or any other
precautions as per traffic rules, as a result of which, the
said ambassador car collided with the said stationary
truck and thereby caused the accident in which Dipendra
Vrundavanbhai was succumbed to the injuries and other
persions namely Vrundavanbhai Naranbhai Kakkad and
Vrujlal Shantilal Damani have received serious and
grievous injuries resulting into sustaining disability to
them.
2.2 Therefore, the legal heirs of the deceased have filed
claim petition seeking compensation of Rs.20 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 and 2 - driver and owner have chosen not to
appear and contest the claim petition before the
Tribunal. Opponent No.3 - Insurance Company has
appeared and has filed its written statement / objections
by disputing all the averments made by the claimant/s
in the claim petition.
2.3 Issues have been framed by the Tribunal. The oral
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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. 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 income as well as prospective income of the
deceased, multiplier, loss of consortium, funeral expenses
and loss of estate, and family circumstances, etc. It is
submitted that the deceased was working as lecturer in
Commerce & Law College, Junagadh and earning
Rs.9,40/- per month and after deducting Rs.60 as
professional tax, his income comes to Rs.9,680/-. Hence,
income of the deceased should be Rs.9,680/- considering
documentary evidence at Exh.82 page 273. 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
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Court in the case of National Insurance Company
Limited versus Pranay Shethi reported in (2017) 16 SCC
680, 50% 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 17. 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 unmarried, but
he has left the dependents in the family behind him.
Therefore, the Tribunal has committed error by not
properly awarding compensation under the head of loss
of consortium. 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
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allowed.
4. Per contra, learned advocates for contesting
respondents 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. It is submitted that the Tribunal has
committed an error by adding prospective income on
higher side. 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 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
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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 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
that the claimant has by and large claimed enhancement
towards income of the deceased, income as well as
prospective income of the deceased, multiplier, loss of
consortium, funeral expenses and loss of estate, and
family circumstances, etc. It transpires from documentary
evidence at Exh.82 page 273 that the deceased was
working as lecturer in Commerce & Law College,
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Junagadh and earning Rs.9,40/- per month and after
deducting Rs.60 as professional tax, his income comes to
Rs.9,680/-. Hence, income of the deceased should be
Rs.9,680/-. Furthermore, looking to the age of the
deceased at the time of accident, i.e. 30 years and
considering the decision of the Hon'ble Apex Court in the
case of Pranay Shethi (supra), 50% rise should be added
as prospective income. Therefore, it would come to
Rs.14,520/- per month income of the deceased. Hence,
annually, it would come to Rs.1,74,240/- (Rs.14,520/- x
12), and after deducting Rs.25,064/- income tax, annual
income would come to Rs.1,49,176/-, and further
multiplied by 17 multiplier keeping in view the decision
of Hon'ble Apex Court in the case of Sarla Verma
(supra), it would come to Rs.25,35,992/-, and after
deducting 1/2 towards personal expenses, it would come
to Rs.12,67,996/- as loss of dependency benefits, which
should be awarded by the Tribunal.
6.2 Further, under the head of loss of consortium, the
Tribunal has not awarded any amount. It is not in
dispute that there are two 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
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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 2 dependents = Rs.96,800/- 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.
6.4 Therefore, total compensation would be as under,
which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of dependency 12,67,996/-
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benefits
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 96,800/-
Total... 14,01,196/-
Less : Amount which is 11,37,000/-
already awarded
Additional amount which 2,64,096/-
is awarded
7. Therefore, I hold that the claimant/s are entitled to
get the total amount of compensation of Rs.14,01,196/-
with 7.5% 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.11,37,000/- and, therefore, remaining amount of
Rs.2,64,096/- 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
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extent.
8.2 The impugned judgment and award dated 30.03.2011
passed by the Motor Accident Claims Tribunal (Aux.),
Junagadh in Motor Accident Claim Petition No.764 of
1997 is modified to the aforesaid extent.
8.3 In light of the decision of the Hon'ble Apex Court
in the case of Khenyei vs. New India Assurnace Co. Ltd.
& Ors. reported in (2015) 9 SCC 273, I am of the
opinion that respondent No.3 - insurance company will
deposit the entire awarded amount, and it is open for
the respondent No.3 - insurance company to recover the
same from other tort-feasors.
8.4 Hence, the respondent No.3 - Insurance Company is
directed to deposit the enhanced amount Rs.2,64,096/-
with 7.5% p.a. interest 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.
8.5 The Tribunal shall disburse the entire awarded
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
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verification and after following due procedure.
8.6 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.7 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
