Gujarat High Court
Jagrutiben Bipinkumar Mehta vs Ganpatsinh Hemaram Mali on 15 April, 2025
NEUTRAL CITATION
C/FA/5121/2023 ORDER DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5121 of 2023
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JAGRUTIBEN BIPINKUMAR MEHTA & ORS.
Versus
GANPATSINH HEMARAM MALI & ANR.
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Appearance:
MR HEMANT S SHAH(756) for the Appellant(s) No. 1,2,3,4,5
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 15/04/2025
ORAL ORDER
1. Heard learned advocate Mr.Hemant S Shah for the appellants and
learned advocate Mr.Mandeep Singh Saluja for respondent no.2. Though
served, respondent no.1 has not appeared. Perused the record.
2. The challenge in the present appeal is by the original claimant
challenging the judgment and award dated 03/11/2018 passed by the
learned MACT, Ahmedabad in MACP No.511 of 2013.
3. The brief fact of the present appeal is such that deceased -
Bipinkumar was driving motorcar bearing Registration No.GJ-27-C-6657
and was going to Rajasthan. Harishbhai Gandhi was also sitting in the
said car. While the said car reached near Mithdi river pool, on Sanderav
to Pali Road, opponent no.1 driving the truck bearing Registration No.RJ-
07-G-2832 came in rash and negligent manner on high speed and dashed
with the motorcar. Resultantly, deceased sustained severe injuries and
died on the spot. FIR was also lodged against the driver of the truck.
3.1 Legal Heirs of the deceased filed the claim petition claiming
NEUTRAL CITATION
C/FA/5121/2023 ORDER DATED: 15/04/2025
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compensation of Rs.50,00,000/-. Notices were served to opponents.
Opponent no.2 appeared and filed written statement at Exh.26. Issues
were framed. Claimant no.1 widow of the deceased filed examination in
chief at Exh.44 and produced the copy of complaint, Panchnama, PM
report, salary certificate issued by the Pollar International where the
deceased was serving and other documentary evidence in support of the
claim petition.
3.2 Learned tribunal after considering the evidence on record, partly
allowed the claim petition granting compensation to the tune of
Rs.9,77,200/- with 7.5% interest and cost from the date of filing of the
petition till its realization holding the opponents jointly and severally
liable to pay the compensation.
3.3 Being aggrieved and dissatisfied with the impugned judgment and
award, the appellants - heirs of the deceased claimant have filed this
appeal under Section 173 of the MV Act.
4. Learned advocate for the appellant would submit that deceased was
doing the service as Sales Executive with Pollar International and was
earning Rs.15,000/- per month. His age was 34 years. It is submitted that
deceased was driving the car of his boss viz., Harishbhai Gandhi who was
sitting in the car on the date of accident. Deceased was paid Rs.5,000/- as
driving charges. Thus, deceased was earning total Rs.20,000/- per month.
It is submitted that claimant has examined the witness from Pollar
International and produced certificate issued by the employer at Exh.64
which demonstrates that deceased was earning Rs.15,000/- as salary. It is
submitted that though specifically and categorically evidence with regard
to the income of the deceased was produced, the learned tribunal erred in
assessing the notional income at Rs.4,500/- per month. It is submitted
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C/FA/5121/2023 ORDER DATED: 15/04/2025
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that while awarding compensation, the learned tribunal has not properly
appreciated the compensation under the head of prospective income,
funeral expense, loss of consortium and love and affection. It is therefore
submitted to allow this appeal and to modify the impugned judgment and
award.
5. Per contra, learned advocate for the respondent no.2 while
supporting the impugned judgment and award would submit that insofar
as the income of Rs.5,000/- of the deceased is concerned, there is no iota
of evidence produced by the claimant and therefore the learned tribunal
has rightly not considered the said income. It is further submitted that so
far as the certificate produced at Exh.64 is concerned, only on that basis
of a certificate, the income criteria cannot be assessed. In absence of IT
return supporting the certificate, no reliance can be placed upon it and
therefore he would submit to dismiss the appeal and to maintain the
judgment and award passed by the tribunal.
6. I have considered the rival submissions and perused the record and
proceedings. From the record, it appears that deceased was serving as
Sales Executive and in connection with his income certificate produced at
Exh.64 which demonstrates that deceased was earning Rs.15,000/- per
month. The claimants have also examined witness from the employer at
Exh.58 and in the cross-examination of the said witness nothing contrary
has come on record with regard to the contents of the certificate and in
regards to the non-production of the income tax return. The said witness
has not only proved salary certificate but also proved the contents of the
said certificate and there is no reason to disbelieve the contents of the
salary certificate (Exh.64). It further transpires that when there is direct
material available on record with regard to the income of the deceased,
the tribunal has failed to appreciate the material available on record and
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C/FA/5121/2023 ORDER DATED: 15/04/2025
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has erred in assessing the notional income of the deceased. So far as the
veracity of the certificate is concerned, under the MV Act, strict proof as
is required under the Evidence Act is not required. Only material which
is required to be considered is whether the claimant has been able to
establish the income which is claimed in the claim petition.
7. It also appears that learned tribunal while considering the
compensation has failed to appreciate the settled position of law with
regard to prospective income. The monthly income of the deceased was
of Rs.15,000/- and by adding 40% as prospective income in view of
National Insurance Company Ltd Vs Pranay Sethi & Ors., reported in
(2017) 16 SCC 680, the total income would come to Rs.21,000/- where-
from one-third is deducted towards the dependency loss as there are three
dependent members in the family after the demise of parents of the
deceased and they came to be deleted. The multiplier is applied of 16
which is correct in view of the age of the deceased. The claimants are
also entitled for increase in compensation granted under the loss of
consortium as the deceased was survived by his mother, spouse and
daughter and total three members which comes to Rs.1,45,200/-
(Rs.48,400/- for each member) in view of Pranay Sethi & Ors (supra).
Likewise, the compensation under the head of loss of estate and funeral
expenses is also required to be granted at Rs.18,150/- each.
8. Therefore, total compensation would be as under, which the
claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of Dependency: 26,88,000/-
Income per month Rs.15,000/-
Prospective Income 40%
(Rs.15,000 + 40%) Rs.21,000/-
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Dependency (One-third towards
Personal and living expenses)
Rs.21,000/- x 1/3rd = Rs.7,000/-
(Rs.21,000/- (-) Rs.7,000/- Rs.14,000/-
Rs.14,000 x (12) (x) 16 (multiplier).
Loss of consortium (Rs.48,400/- x 3) 1,45,200/-
Loss of Estate & Funeral Expenses 36,300/-
(Rs.18,150/- each)
Total 28,69,500/-
Awarded by the tribunal 9,77,200/-
Enhanced amount of compensation 18,92,300/-
9. In wake of above, all the opponents are jointly and severally liable
to pay the compensation to the claimants and claimants are entitled to get
the enhanced amount of compensation of Rs.18,92,300/-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
remain same.
10. For the foregoing reasons, the appeal is partly allowed. The
respondent no.3-insurance company is held liable to pay the compensation
of enhanced amount of Rs.18,92,300/-with interest at the rate of 7.5% from
the date of filing of the petition till its realization. The insurance company
is directed to deposit the amount of compensation with interest and costs
within six weeks from today including the interest and costs.
11. Upon such deposit, 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 claimants, by account payee cheque / NEFT /
RTGS, after proper verification and after following due procedure and as
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per the apportionment fixed by the tribunal.
12. While making the payment, the Tribunal shall deduct the courts
fees, if not paid, in accordance with rules/law. If order of apportionment
is not made by the tribunal, it shall be made while disbursing the amount
of compensation.
13. Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(D. M. DESAI,J)
sompura
