Gujarat High Court
Malek Imtiyazbanu Ayubmiya vs Yasinkhan Hamjekhan Pathan on 17 April, 2025
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C/FA/803/2025 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 803 of 2025
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MALEK IMTIYAZBANU AYUBMIYA & ANR.
Versus
YASINKHAN HAMJEKHAN PATHAN & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 1,2
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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
11.10.2023 passed by learned Motor Accident Claims
Tribunal (Main), Anand in MACP No.100 of 2021, wherein
learned Tribunal has allowed claim petition.
2. Heard learned advocate Mr.Nishit Bhalodi for
appellants - original claimants and learned advocate
Ms.Kirti Pathak for respondent No.3 - Insurance Company.
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3. Brief facts of the case are as under:
3.1 On 24.02.2021, deceased Ayubmiya
Allauddinmiya Malek was sitting as a pillion rider on the
rear seat of a motorcycle bearing registration No.GJ-23-
AQ-2770 travelling towards Umreth. The motorcycle was
being driven by opponent No.1 and owned by opponent
No.2. When they reached at the place of accident, at
about 7.00 p.m. opponent No.1 applied brakes, resultantly
lost control over motorcycle. As a result, motorcycle
overturned and deceased fell down on the road and
sustained serious injuries. The deceased was taken to
hospital for treatment and during the course of treatment,
he succumbed.
3.2 Legal heirs of deceased i.e. wife and married
daughter, filed a claim petition under Section 166 of the
Motor Vehicles Act claiming compensation of
Rs.20,00,000/-. Notices were served. Opponent Nos.1 and
2 though served did not appear and contest the claim
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petition. Opponent No.3-Insurance Company appeared and
filed Written Statement at Ex.14. Claimant No.1 - widow
examined herself at Ex.19 and produced documentary
evidence such as FIR, Panchnama, Inquest Panchnama,
Postmortem report and other relevant documents in
support of claim petition. After considering the evidence
on record, learned Tribunal allowed the claim petition
awarding compensation of Rs.10,28,245/- with 9% interest
and proportionate cost from the date of claim petition till
realization.
3.3 Being aggrieved and dissatisfied with the
impugned judgment and award, claimants filed present
First Appeal for enhancement of compensation.
4. Learned advocate for the appellants has
submitted that deceased was aged about 50 years at the
time of accident and was working as a labourer and
earning Rs.500/- per day. In absence of any evidence with
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regard to the income of deceased, learned Tribunal
assessed income of Rs.8,000/- per month. As per the rates
of minimum wages prevailing on the date of accident, it
would be just and reasonable to consider the income of
deceased at Rs.8,800/- per month. It is further submitted
that claimant No.1 - widow and claimant No.2, the
married daughter of deceased, are entitled to compensation
of Rs.96,800/- (Rs.48,400 x 2) towards loss of consortium.
It is further submitted that Ex.28 is a summary of
the medical bills which indicate the date of admission of
deceased in the hospital. The period of hospitalization is
almost one month, learned Tribunal has failed to award
compensation under the head of pain, shock and suffering.
It is submitted that the deceased had taken treatment from
24.02.2021 till the date of death and has suffered great
pain, shock and suffering during treatement. Even, the
claimants underwent tremendous trauma while deceased
was undergoing treatment. Learned Tribunal did not
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consider any compensation under the head of pain, shock
and suffering. It is submitted that considering the period
of hospitalization, claimants are entitled to Rs.2,00,000/-
under the head of pain, shock and suffering. Though,
learned Tribunal has awarded compensation of
Rs.1,43,933/- under the head of medical expenses. It is
further submitted that claimant No.1 is a widow and
claimant No.2 is a married daughter of deceased, are
entitled to compensation of Rs.96,800/- under the head of
loss of consortium. Except above, no other submissions are
canvassed by learned advocate for the appellants.
5. Per contra, learned advocate for respondent No.3
- Insurance Company has supported the judgment and
award and submitted that so far as question of pain, shock
and suffering is concerned, claimants remained silent on
this aspect in her oral deposition. It is further submitted
that claimant No.2 being a married daughter of deceased
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would not fall within the definition of dependency,
therefore, is not entitled to compensation under the head
of loss of consortium. No other submissions are made by
learned advocate for respondent.
6. I have considered rival submissions canvassed by
learned advocates for the respective parties and also
perused the materials available on record. During the
course of submission, learned advocate for the appellants
has placed on record Ex.28 which is medical bill of Shri
Krishna Hospital, Karmsad, which is to be taken on
record. It is an undisputed fact that deceased sustained
serious injuries due to accidental injuries and was admitted
to Shri Krishna Hospital, Karmsad for treatment. As per
Ex.28, date of admission of deceased on 24.02.2021 and
deceased had taken treatment till 27.03.2021, the date on
which, deceased passed away. On perusal of Ex.28, it
appears that the deceased had undergone surgeries and
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was kept on a ventilator. This fact is evident from
ventilator and surgical charges charged by hospital,
relevant entries are shown in the medical bill. Considering
charges charged by these two types of Hospital, it is
established that the deceased was kept on ventilator and
also underwent surgery for the injuries sustained in the
accident. Considering the period of hospitalization which is
almost one month, deceased must have suffered great pain,
shock and suffering. When a victim has been hospitalized
for a considerable period of time, reasonable compensation
under the head of pain, shock and suffering is required to
be granted on a humanitarian ground also. More
particularly, claim petition under Motor Vehicles Act being
benevolent legislation, claimants are entitled to an amount
Rs.50,000/- towards pain, shock and suffering. It is
clarified that no interest be granted to the claimant on
compensation of Rs.50,000/-.
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7. Next question which is required to be considered
is with regard to assessment of income. The deceased was
aged about 52 years at the time of accident and was doing
labour work. As there is no evidence with regard to
income of deceased, learned Tribunal ought to have
considered rates of minimum wages prevailing on the date
of accident. The rates of minimum wages for unskilled
labour on the date of accident was Rs.8,800/- per month.
The income of deceased is assessed at Rs.8,800/- per
month. Claimants are widow and married daughter,
however, Court cannot shut eyes from considering the fact
that eventhough the daughter is married, she cannot be
entitled to compensation under the head of loss of
consortium. Evenif, daughter is married, love and affection
towards the parents would never diminish and in the cases
of either of the parents expire because of happening of
unfortunate accident, a married daughter cannot be ruled
out from claiming compensation under the head of loss of
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consortium. A daughter would remain a daughter even
after her marriage. Under these circumstances, learned
Tribunal granted compensation of Rs.80,000/- under the
head of loss of consortium and loss of love and affection is
required to be enhanced to Rs.96,800/- (Rs.48,400 x 2).
Rest of the award shall remain unaltered. Resultantly, First
Appeal is partly allowed.
8. The appellants - original claimants are entitled
to following amount of compensation.
Under the Head of Compensation of Rs.
Future loss of income
Monthly income = Rs. 8,800/-
Prospective income 10%
(Rs.8800 + 10%) = Rs. 9,680/-
Deduction 1/3
(Rs.9680 x 1/3) = Rs. 3,226/-
Total Income
[Rs.9,680 - Rs.3,226/-] =Rs. 6,454/-
(Rs.6454 x 12 x 11) = Rs.8,51,928/- 8,51,928/-
Loss of estate 18,150/-
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Loss of consortium 96,800/-
(Rs.48,400 x 2 = Rs.96,800/-)
Funeral expenses 18,150/-
Loss of estate 18,150/-
Medical Bills 1,43,933
Pain, shock and suffering 50,000
Grand Total 11,97,111/-
Less awarded amount of 10,28,245/-
compensation by Tribunal
Enhanced amount 1,68,866/-
(Rs.11,97,111 - Rs.10,28,245/-)=
Interest @ 8 %
9. The claimant/s are entitled to enhanced amount
of compensation of Rs.1,68,866/- @ 8% per annum from
the date of claim petition till realization from Insurance
Company.
10. 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. Upon such deposit, it will be open to the
claimant/s to approach the learned Tribunal for
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appropriate orders for withdrawal. The learned Tribunal
shall disburse the same after proper identification and
verification following due procedure.
11. While making the payment, learned
Tribunal/Court shall deduct the Court Fess, if not paid, in
accordance with prevailing Rule.
12. It is clarified that while calculating the interest
at the rate of 8% per annum, amount under the head of
pain, shock and suffering is required to be excluded and
claimants are not entitled to any interest on the amount of
Rs.50,000/- which is granted under the head of pain,
shock and suffering. Accordingly interest be calculated.
13. In view of the aforesaid discussions, present
First Appeal is partly allowed accordingly. The judgment
and award dated 11.10.2023 passed by learned Motor
Accident Claims Tribunal (Main), Anand in MACP No.100
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of 2021, is modified to the aforesaid extent.
14. Record and proceedings, if any, received, be
sent back to the concerned Court/Tribunal.
(D. M. DESAI,J)
MANOJ
