Gujarat High Court
Amitaben Ashvinbhai Rathwa vs Bhurkabhai Ukaarbhai Muniya on 25 February, 2025
NEUTRAL CITATION
C/FA/440/2024 ORDER DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 440 of 2024
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AMITABEN ASHVINBHAI RATHWA & ORS.
Versus
BHURKABHAI UKAARBHAI MUNIYA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/02/2025
ORAL ORDER
1. Present appeal is filed under section 173 of the
Motor Vehicle Act, 1988 by the appellants challenging
the judgment and decree dated 31.12.2022 passed by the
learned Motor Accident Claims Tribunal at Chhotaudepur
in MACP No. 170 of 2019, for enhancement.
2. Heard Mr. Nishit A. Bhalodi, learned advocate for
the appellants and Mr. Krunal R. Saksena, learned
advocate for respondent No.3. Though served, none
appeared for respondent No. 2.
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C/FA/440/2024 ORDER DATED: 25/02/2025
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3. The brief facts of the case are as under:
On 17.12.2019, deceased Ashvinbhai Reshiyabhai
Rathwa was standing near his parked motorcycle at
about 5:00 to 6:00 p.m. near Zer Near, Zer Patiya, on
Chhotaudepur to Zoz Road, at that time, the opponent
No.1 came by driving Truck bearing No.GJ20 U 3701 in
rash and negligent manner with an excessive speed and
dashed with deceased. Resultantly, deceased sustained
serious injuries and died on the spot. FIR was lodged
against the driver of the Truck. The claimants being the
widow and parents respectively filed claim petition before
the learned Motor Accident Claims Tribunal (Auxiliary),
nd
2 Additional District Court, Chhotaudepur under section
166 of Motor Vehicles Act claiming compensation of
Rs.20 lakhs from the opponents.
4. Opponent Nos. 1 and 2 being the driver and owner
of the Truck though served did not appear. Opponent
No.3 - insurance company appeared and filed written
statement at Ex-11 and denied the liability to pay the
compensation on the ground of non-negligence, no income
proof and other general denials. Claimant No.1 deposed
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C/FA/440/2024 ORDER DATED: 25/02/2025
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at Ex-14 and produced documentary evidence in support
of the claim petition. Issues were framed at Exh.-12 and
after considering the evidence and material placed on
record, learned Tribunal partly allowed the claim
application by directing opponent Nos.1 to 3 to pay
jointly and severally an amount of Rs.8,31,600/- with
interest @ 7.5% per annum from the date of petition till
realisation with proportionate costs.
5. Being aggrieved and dissatisfied with the quantum
of compensation being awarded by the learned Tribunal,
the claimants have filed the present appeal for
enhancement of compensation.
6. Learned advocate for the appellant submitted that
deceased was doing massenory work and was earning
Rs.15,000/- p.m. He was aged about 21 years. In absence
of any documentary evidence, learned Tribunal considered
income of Rs.4,000/- p.m. It is submitted that deceased
cannot have any documentary evidence when he is doing
activity of the massonary work. Learned Tribunal ought
to have considered the rates of minimum wages
prevailing at the relevant point of time. The accident has
occurred on 17.12.2019. It is further contended by
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C/FA/440/2024 ORDER DATED: 25/02/2025
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learned advocate for the appellant that the amount of
consortium which has been granted by the learned
Tribunal under the head of loss of estate and loss of
future expenses is too megre. It is against the settled
law which is laid down in the case of National
Insurance Company Limited versus Pranay Shethi
reported in (2017) 16 SCC 680. The learned Tribunal has
also not considered the compensation granted under the
head of loss of estate. It is submitted that learned
Tribunal has not considered the settled principle that
while considering the claim applications, Tribunal has to
adopt the approach whereby the claimants can get just
and reasonable compensation.
7. Per contra, learned advocate Mr. Krunal R. Saksena
for the insurance company submitted that the judgment
and award is just and proper as the learned Tribunal
has after considering the evidence and material placed on
record, passed the award.
8. Learned advocate for the respondent Company
submitted that claimants have not been able to establish
income which is claimed in the petition. Learned
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C/FA/440/2024 ORDER DATED: 25/02/2025
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Tribunal has considered Rs.4,000/- per month which is
just and reasonable unless there is contrary material
shown by the claimants, this Court may not interfere in
the findings of facts.
9. Having considered the submissions and the material
placed on record, it transpires that accident has occurred
because of the rash and negligent driving of the driver
of the Truck who is found negligent by learned Tribunal.
The issue of negligence has not been raised by the
insurance company. The only question which is required
to be considered in the present First Appeal is whether
learned Tribunal has adopted the approach which can be
said to be a just and reasonable. Learned Tribunal by
considering the income of the deceased has taken a
notional base and considered Rs.4,000/- per month as
monthly income. However, in catena of decisions, a view
has been expressed by the Supreme Court that in
absence of any documentary evidence with regard to
income, the Tribunal has to take shelter of the rates of
minimum wages prevailing on the date of accident.
Considering the rates of minimum wages in the year
2019 and more particularly, on the date of accident,
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minimum wages could be arrived at Rs. 8,300/- p.m. In
the decision of National Insurance Company Limited
(supra), it has been observed by the Supreme Court that
while considering the amount of consortium, claimants
per person is entitled to Rs.48,400/-. In the present case,
learned Tribunal has awarded only Rs.70,000/- under the
head of loss to Estate and Consortium, Funeral Expenses
which is not a just and reasonable compensation in view
of the fact that claimants are three in numbers and the
claimants are the widow and parents respectively of the
deceased who was aged about 26 years at the relevant
point of time. Considering the overall aspect of the
matter, the applicant is entitled to following amount of
compensation.
Head Amount (Rs.)
Future loss of Income 15,80,388/-
Monthly Income - 8,300/-
Future rise in Income - (40%)
(8,300 + 40% = 11620/-)
11620 x 1/3 = 3873/-
11620 - 3873 = 7747/-
7747 x 12 x 17 = 15,80,388/-
Consortium (48,400 x 3) 1,45,200/-
Loss to Estate 18,150/-
Funeral Expenses 18,150/-
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Total 17,61,888/-
Less Awarded Amount by Tribunal 8,31,600/-
Enhanced Compensation 9,30,288/-
10. The applicants - claimants are entitled to enhanced
amount of compensation of Rs.9,30,288/- with interest @
7.5% from the date of petition till realisation.
11. The respondent No.3 - Insurance Company is
directed to deposit the enhanced amount of compensation
within six weeks from the date of the receipt of the
order. Once the amount of enhanced compensation is
deposited by the insurance company, the Tribunal shall
disburse the compensation to the claimants after
following due procedure. Appeal is partly allowed
accordingly.
(D. M. DESAI,J)
MAYA
