Gujarat High Court

Ratilal Ranchhodbhai Katariya vs Jayeshbhai Ratilal Katariya on 16 April, 2025

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                             C/FA/361/2025                                     ORDER DATED: 16/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 361 of 2025

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                                              RATILAL RANCHHODBHAI KATARIYA
                                                           Versus
                                             JAYESHBHAI RATILAL KATARIYA & ORS.
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                      Appearance:
                      NISHIT A BHALODI(9597) for the Appellant(s) No. 1
                      HARSH A VYAS(9330) for the Defendant(s) No. 3
                      NOTICE SERVED for the Defendant(s) No. 1,2
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                           CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                         Date : 16/04/2025

                                                            ORAL ORDER

1. The present appeal is filed by the appellant-original claimant

against the judgment and award dated 06.12.2022 passed by the

learned Motor Accident Claims Tribunal (Aux) & 6 th Additional District

Court, Bharuch in Motor Accident Claim Petition No.127 of 2018,

wherein learned Tribunal has partly allowed the claim petition.

2. Heard learned advocate Mr. Nishit A. Bhalodi for the appellant-

original claimant and learned advocate Mr. Harsh Vyas for the

respondent no.3-Insurance Company. Though served, none appeared

for respondent nos.1 and 2.

3. Brief facts narrated in the present First Appeal are as under:

3.1 On 04.02.2018, deceased was going with her son i.e. opponent

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no.1 on motorcycle bearing registration no.GJ-16-CE-5697 as a pillion

rider. At that time, a four wheeler car came in an excessive speed with

full lights on. Resultantly, the son of deceased dashed with the said

vehicle and deceased Gangaben Ratilal Katariya fell down from the

motorcycle and sustained serious injuries. Resultantly, she succumbed.

FIR is lodged against the opponent no.1-driver of motorcycle. The

husband of deceased filed a claim petition claiming compensation of

Rs.10 Lakhs. The opponents were served with the notice. The

opponent nos.1 and 2-driver and owner of motorcycle did not appear

and contest the claim petition. Opponent no.3-Insurance Company

appeared and filed written statement at Exh.11 and denied its liability.

The claimant no.1 deposed at Exh.12 and produced documentary

evidence such as FIR, panchnama, charge-sheet, inquest panchnama,

post mortem report and R.C. Book of motorcycle.

3.2 After considering the evidence on record, learned Tribunal

partly allowed claim petition by directing the opponent nos.1,2 and 3

jointly and severally to pay sum of Rs.5,24,900/- with interest at the

rate of 9% per annum from the date of claim petition till its

realization.

3.3 Being aggrieved and dissatisfied with the impugned judgment

and award, the claimant-appellant herein has filed the present appeal

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for enhancement of compensation.

4. Learned advocate for the appellant has submitted that on the

date of the accident, the deceased- Gangaben was riding as a pillion

rider on the motorcycle, which was being driven by her son. The

deceased was aged about 56 years at the relevant point of time and

the claim petition was filed by her husband. However, the learned

Tribunal has deducted one half towards living expenses, which is

against the settled principle of law. It is further submitted that

deceased being a married woman, 1/3rd ought to have been deducted

towards living expenses. While considering the income of the

deceased, the Tribunal has assessed Rs.7,000/- per month as deceased

was doing labour work and also was selling vegetables. However,

considering the rates of minimum wages, in absence of any

documentary evidence, rates of minimum wages on the date of

accident was Rs.8,300/- per month. Since, the learned Tribunal has

erred in awarding the less compensation, the claimant is entitled to

enhancement of compensation. No other submissions are canvassed

except the above submissions.

5. Per contra, learned advocate appearing for the respondent-

Insurance Company has supported the impugned judgment and

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award, and has submitted that the learned Tribunal has awarded just

and reasonable compensation and in absence of any documentary

evidence with regard to income, the assessment of income is just and

reasonable. Except the above submissions, no other submissions are

canvassed.

6. I have considered the submissions canvassed by learned

advocates for the respective parties and perused the record and

proceedings. Undisputedly, the deceased was an unskilled labour on

the date of accident and in absence of any documentary evidence with

regard to income of the deceased, the yardstick for considering the

income of the deceased is rates of minimum wages. On the date of

accident, rates of minimum wages was prevailing at Rs.8,300/-, and

therefore, the income of the deceased is assessed at Rs.8,300/- per

month. Undisputedy, the deceased was married, and therefore,

deduction of 1/3rd towards personal living expenses to be considered.

7. Considering the age at time of accident, as per the propositions

of law laid down in the case of National Insurance Company Limited

vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 10%

prospective income to be added. Multiplier of 9 is applicable.

8. In view of the aforesaid discussions, the claimant-appellant

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herein is entitled to following compensation:

                                         Name of the Particulars                              Amount in Rs.
                      Future Loss of Income
                      Income                                                   Rs.8,300/-
                      Prospective Income (10%)
                      Rs8,300/- + Rs.830/- =                                   Rs.9130/-

                      Deduction towards personal expenses
                      1/3 of Rs.9,130/- = Rs.3,043/-   =                       Rs.6,087/-

                      Rs.6,087/- X 12 X 9                                                          Rs.6,57,396/-
                      Loss of Consortium                                                              Rs.48,400/-
                      Rs.48,400/-
                      Loss of Estate                                                                  Rs.18,150/-
                      Loss of Funeral Expenses                                                        Rs.18,150/-
                      Total                                                                        Rs.7,42,096/-
                      Awarded Compensation by Tribunal                                             Rs.5,24,900/-
                      Enhanced amount of compensation                                              Rs.2,17,196/-

9. For the reasons recorded above, following order is passed:

9.1 The appellant-original claimant is entitled to enhanced amount

of compensation of Rs.2,17,196/- @ 9% per anuum from the date of

claim petition till realization from the respondent-Insurance Company.

9.2 The Insurance Company is directed to deposit enhanced amount

of compensation with interest as above within a period of Four Weeks

from the date of receipt of this order.

9.3 Upon such receipt, it will be open for the appellant-original

claimant to approach the learned Tribunal for appropriate orders for

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withdrawal. The learned Tribunal shall disburse the same after proper

identification and verification following due procedure.

9.4 This Court while condoning the delay of 545 days caused in

preferring the captioned appeal on 29.01.2025 passed in R/Civil

Application No.5716 of 2024 has made clear that the appellant shall

not claim interest on the delayed period, if the appellant succeeds in

First Appeal. Learned Tribunal concerned is directed to disburse the

enhanced amount of compensation by keeping in mind the aforesaid

direction.

9.5 While making the payment, the learned Tribunal shall deduct

the court fees, if not paid, in accordance with the prevailing rule.

9.6 The present First Appeal is partly allowed. The impugned

judgment and award dated 06.12.2022 passed by the learned Motor

Accident Claims Tribunal (Aux) & 6th Additional District Court, Bharuch

in Motor Accident Claim Petition No.127 of 2018, is modified to the

aforesaid extent.