Gujarat High Court

Champaben Amarsinh Parmar vs Sarvarali Akbarali Pathan on 17 April, 2025

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                               C/FA/787/2025                                 ORDER DATED: 17/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 787 of 2025

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                                           CHAMPABEN AMARSINH PARMAR & ORS.
                                                         Versus
                                            SARVARALI AKBARALI PATHAN & ANR.
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                       Appearance:
                       NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
                       MASUMI V NANAVATY(9321) for the Defendant(s) No. 2
                       MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
                       NOTICE SERVED for the Defendant(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                        Date : 17/04/2025

                                                         ORAL ORDER

1. The present First Appeal is filed by appellants-

original claimants against the judgment and award dated

24.11.2021 passed by learned Motor Accident Claims

Tribunal (Aux.), & 5th Additional District Judge at Anand

in MACP No.241 of 2016, wherein learned Tribunal has

partly allowed claim petition.

2. Heard learned advocate Mr.Nishit Bhalodi for

appellants and learned advocate Ms.Masumi Nanvaty for

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respondent No.2 - Insurance Company. Though served,

none appeared for respondent No.1

3. Brief facts of the case are as under:

3.1 On 12.04.2016, deceased Amarsinh Dalpatsinh

Parmar went to supply bricks at village-Bill by driving a

truck bearing registration No.GJ-6-ZZ-2145 at a moderate

speed and on left and correct side of the road. When he

reached near Patia of village-Ambav, on Asodar-Anklav

road, at that time, one cow suddenly came on the road

and to save a vehicular accident, he suddenly applied

brake and as a result, the truck gone road side ditch and

dashed with a tree. Resultantly, deceased sustained serious

injuries and was admitted in Anand Orthopedic Hospital,

from there he was shifted to S.S.G.Hospital Vadodara.

Thereafter he was shifted to Civil Hospital, Ahemedabad.

During the course of treatment, deceased succumbed due

to accidental injuries.

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3.2 The legal heirs of deceased filed a claim petition

under Section 166 of the Motor Vehicles Act claiming

compensation of Rs.19,00,000/-. Notices were issued.

Opponent No.1-owner of truck was deleted from claim

petition. Opponent No.2 - Insurance Company appeared

and filed Written Statement at Ex.15. Claimant No.1 filed

Examination-in-chief at Ex.19 and also produced

documentary evidence such as FIR, Inquest Panchnama,

Panchnama of place of incident, R.C.Book, licence of

deceased, certificate income and other relevant documents.

After considering the evidence, learned Tribunal partly

allowed the claim petition awarding compensation of

Rs.12,79,600/- alongwith interest @ 9% per annum from

the date of petition till realization from opponent Nos.1

and 2.

3.3 Being aggrieved and dissatisfied with the

impugned judgment and award, appellants - original

claimants are before this Court for enhancement of

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compensation.

4. Learned advocate for the appellants submitted

that the compensation awarded by the learned Tribunal is

not just and reasonable. It is submitted that deceased was

driving a truck and as a cow suddenly came on road, he

applied brakes to avoid an accident. As a result, truck

veered off the road and dashed with a tree. It is further

submitted that the deceased was aged about 33 years at

the time of accident and was a skilled driver. The

claimants have asserted that the deceased was employed

with Safe Trading and was earning Rs.9,000/- per month.

The owner of truck also issued a certificate stating that the

deceased was receiving a salary of Rs.9,000/- per month.

However, the learned Tribunal considered the income at

Rs.6,000/- per month only. It is further submitted that in-

come of deceased be considered at Rs.8,000/- per month.

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4.1 It is further submitted that while awarding

compensation, learned Tribunal failed to grant any amount

of compensation under the head of loss of consortium to

which the claimants are entitled. Additionally,compensation

awarded under the head of funeral expenses and loss of

estate is not as per the settled propositions of law and

claimants are entitled to higher amount than awarded by

the learned Tribunal. Except the above submissions, no

other submissions are canvassed by the learned advocate

for the appellants.

5. Per contra, learned advocate for respondent No.2

- Insurance Company has supported the judgment and

award and submitted that the income claimed by the

claimants was not substantiated by any evidence. It is also

stated that considering the age of deceased and in absence

of any documentary evidence with regard to income,

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learned Tribunal has awarded just and reasonable compen-

sation.

6. I have considered the submissions and perused

the record and proceedings. It appears from the record

that deceased was aged about 33 years and was serving as

driver of heavy commercial vehicle which requires skilled.

The oral deposition of witness Ex.26 records that deceased

was not on permanent payroll and was a daily wager.

Looking at such evidence and considering the claim of

claimants to assess the income at Rs.8,000/- per month

instead of Rs.9,000/- per month income is assessed at

Rs.8,000/- per month. Even the rates of minimum wages

prevailing on date of accident is Rs.8,000/- per month.

The law is settled with regard to the compensation under

the head of loss of consortium, funeral expenses and loss

of estate. Initially, there was five claimants i.e. widow,

two minor children and parents of deceased. However,

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during the pendency of clam petition, parents have passed

away, therefore, claimants are 3 in numbers. However,

while considering the question of loss of consortium and

loss of dependency, relevant date is the date of application

for compensation. Considering the age of children, who

are aged about 5 and 6 years respectively and the

age of widow, who was aged about 30 years, on the date

of application, consortium amount is required to be con-

sidered for 5 claimants and deduction of personal and liv-

ing expenses is required to be considered at 1/4 th while

determining the issue of loss of dependency.

7. In view of the aforesaid discussions, appellants -

original claimants are entitled to following amount of

compensation.

Under the Head of Compensation of Rs.

                       Future loss of income

                       Monthly income =               Rs.      8,000/-





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                       Prospective income 40%
                       (Rs.8,000 + 40%) = Rs.               11,200/-

                       Deduction 1/4
                       (Rs.11200 x 1/4 ) =            Rs.     2,800/-

                        Total Income
                       [Rs.11,200-Rs.2,800/-]=Rs.             8,400/-

                       (Rs.8400 x 12 x 16) =Rs.16,12,800/-                                 16,12,800/-
                       Loss of estate                                                            18,150/-
                       Funeral expenses                                                          18,150/-
                       Loss of consortium                                                    2,42,000/-
                       (Rs.48,400 x 5 = Rs.2,42,000/-)
                       Funeral expenses                                                          18,150/-
                       Grand Total                                                         18,91,100/-
                       Less    awarded      amount                     of                  12,79,600/-
                       compensation by Tribunal

                       Enhanced amount                                                       6,11,500/-

(Rs.18,91,100 - Rs.12,79,600/-)= Interest @7.5%

8. The appellants-original claimants are entitled to

enhanced amount of compensation of Rs.6,11,500/- @

7.5% per annum from the date of claim petition till

realization from Insurance Company.

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9. The Insurance Company is directed to deposit

enhanced amount of compensation with interest as above

within a period of Six Weeks from the date of receipt of

this order. Upon such deposit, it will be open to the