Gujarat High Court
Daxaben Pankajbhai Solanki vs Bapusaheb Isabkhan Dayma on 2 April, 2025
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C/FA/901/2025 ORDER DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 901 of 2025
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DAXABEN PANKAJBHAI SOLANKI & ORS.
Versus
BAPUSAHEB ISABKHAN DAYMA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2025
ORAL ORDER
1. This Appeal is filed challenging the judgment and award
dated 15.03.2021 passed by learned Motor Accident Claims
Tribunal (Main), at Anand in M.A.C.P No.198 of 2018.
2. Heard learned advocate Mr. Nishit A. Bhalodi for
appellants and learned advocate Mr Vibhuti Nanavati for
respondent No.3-Insurance Company.
3. The brief facts of the case are as under:
3.1. On 09.04.2018 at about 7.45 hours, an accident occurred
on Mujkuva Asodar Anklav road ahead of Ramdevkrupa
Bhangar Cabin and Saraswati Nandesari Nursery, when
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deceased Pankajbhai along with her niece Ranjan was travelling
on motorcycle bearing Registration No.GJ-23-BN-2734 and
when they reached at the place of accident, opponent No.1 came
in a Tempo bearing Registration No.GJ 6-V-8810 owned by the
opponent No.2 in rash and negligent manner and dashed to the
motorcycle driven by Pankajbhai. Because of the said accident,
deceased sustained injuries and ultimately, deceased succumbed.
Thereafter, legal heirs of the deceased filed a Motor Accident
Claim Petition No.198 of 2018 before the learned Tribunal
claiming compensation of Rs.25,00,000/-. Notices were served
to opponents. Opponent Nos. 1 & 2 were served but did not
remain present. Opponent No.3 appeared and filed Written
Statement. Issues were framed. Claimant No.1 filed
examination-in-chief at Exhibit-24 and produced FIR,
Panchnama and other documentary evidence in support of claim
application. After considering oral as well as documentary
evidence and material placed on record, learned Tribunal partly
allowed claim petition by directing opponents to pay
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Rs.13,72,584/- with 9% interest from the date of claim petition
till the date of realization.
3.2 Being aggrieved and dissatisfied with the impugned
judgment and award, the appellants-claimants have filed the
present First Appeal before this Court.
4. Learned advocate for the appellants has submitted that
while considering the income of deceased, learned Tribunal has
failed to appreciate the fact that deceased was doing masonry
work and in absence of any documentary evidence, rates of
minimum wages prevailing at the time of accident was required
to be taken into consideration. However, learned Tribunal has
considered Rs.7,000/- per month as income of deceased on the
date of accident. It is further submitted that learned Tribunal has
also failed to consider in granting compensation under the head
of consortium as per the settled law laid down in the case of
National Insurance Company Limited v. Pranay Sethi reported
in (2017) 16 SCC 680. It is further submitted that deceased was
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aged about 39 years and was earning Rs.300/- per day. Except
above submissions, no other submissions are pressed into
service by the learned advocate for the appellants.
5. Per contra, learned advocate for the respondent No.3 has
supported the impugned judgment and award and submitted that
learned Tribunal has awarded just and reasonable compensation
in absence of documentary evidence with regard to income of
deceased. It is further submitted that the claimant could not
establish the income of deceased at the time of accident and
therefore, learned Tribunal has rightly considered Rs.7,000/- per
month as income of deceased.
6. Having considered the submissions canvassed by the
learned advocates for the respective parties and considering the
facts which can be culled out from the impugned judgment and
award, it transpires that deceased was driving motorcycle with
his niece and when he reached near the place of accident,
Opponent No.1 came from opposite direction in rash and
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negligent manner and dashed with motorcyclist. Because of the
accident, deceased sustained injuries and succumbed. FIR and
Panchnama also supports the case of claimant. It is the case of
claimant that deceased was doing a masonry work and was
earning Rs.300/- per day. However, it appears that no
documentary evidence was placed on record to substantiate
income of deceased. In cases where claimants do not produce
documentary evidence with regard to income, rates of minimum
wages is yardstick to be adopted by learned Tribunals to
determine the income of deceased. In the case on hand,
deceased would fall under the category of skilled worker and
considering rates of minimum wages prevailing on the date of
accident, Rs.8,000/- per month would be just and reasonable
income of the deceased to meet the ends of justice. So far as the
prospective income is concerned, 25% as prospective income is
required to be added. Thus, monthly income of deceased would
come to Rs.10,000/-. The claimants are six in numbers, as per
the settled proposition of law, 1/4th deduction under the head of
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personal and living expenses is required to be deducted and total
amount would come to Rs.7,500/-. The learned Tribunal has
also failed to consider compensation under the head of
consortium as per the settled law in the case National
Insurance Company Limited (supra). The claimants are entitled
to Rs.48,400/- each under the head of consortium. So far as the
compensation awarded on other grounds are concerned, learned
Tribunal has considered a reasonable approach and the same do
not require any interference.
7. It would be profitable to observe herein that at the time of
condoning delay in filing the captioned First Appeal, there was
delay of 1273 days and delay was condoned vide order dated
11.03.2025 with a direction that claimants shall not claim
interest upon the enhanced amount of compensation for the
delayed period of delay. It is made clear that while calculating
compensation, period of 1273 days to be deducted from
calculation of interest.
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8. In the wake of the above facts, the claimants are entitled to
the following amount of compensation;
Sr. Name of the Head Amount in Rs.
1 Future Loss of Income
Income per month Rs.8,000/-
Prospective Income (25%)
Rs.8,000/- + Rs.2000/- Rs.10,000/-
Deduction towards
personal expenses 1/4th
Rs.10,000/- less Rs.2,500/- Rs.7,500/-
Rs.7,500/- x 12 x 14
12,60,000/-
3 Loss of estate 16,500/-
4 Funeral expenses 16,500/-
5 Loss of consortium
Rs.48,400/- x 6 2,90,400/-
Total 15,83,400/-
Amount awarded by tribunal 13,72,584/-
Enhanced amount of compensation 2,10,816/-
9. The Insurance Company is directed to deposit the
enhanced amount of compensation of Rs.2,10,816/- with 7.5%
interest per annum within a period of six weeks from the date of
receipt of the copy of this order.
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10. Once the enhanced amount is deposited by the Insurance
Company, the learned Tribunal shall disburse the same in favour
of the claimants through RTGS by following the prevailing
procedure and due identification.
11. While making the payment, the Tribunal shall deduct the
Courts Fees, if not paid, in accordance with rules / law.
12. The present First Appeal is partly allowed accordingly.
The judgment and award dated 15.03.2021 passed by learned
Motor Accident Claims Tribunal (Main), at Anand in M.A.C.P
No.198 of 2018, is modified to the aforesaid extent.
13. Record and proceedings, if any, be sent back to the
concerned Court/Tribunal.
(D. M. DESAI,J)
RINKU MALI
