Gujarat High Court
New India Assurance Co. Ltd vs Gauriben D/O. Maganbhai Fulabhai ... on 27 January, 2025
NEUTRAL CITATION
C/FA/2714/2016 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2714 of 2016
With
R/CROSS OBJECTION NO. 46 of 2017
In
R/FIRST APPEAL NO. 2714 of 2016
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NEW INDIA ASSURANCE CO. LTD.
Versus
GAURIBEN D/O. MAGANBHAI FULABHAI PARMAR AND W/O.
SURESHBHAI DINESHBHAI SOLANKI & ANR.
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Appearance:
MR.KRUTIK A PARIKH(7268) for the Appellant(s) No. 1
MR. NISARG D SHAH(7299) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2025
ORAL ORDER
ORDER IN FA No.2714 of 2016
What could be noticed that the appeal filed by the
appellant - insurance company restricted the claim in appeal to
Rs.2,95,000/-. This is a small and meager amount and
considering the aspect of having no dispute in regards to the
road accident, I am of the opinion that this appeal may not
deserve consideration, more particularly, on the ground of
smallness of amount. Accordingly, present first appeal stands
dismissed.
It is made clear that present first appeal is dismissed on
account of smallness of the amount and the order passed by this
Court shall not be treated as precedent so as to say that this
Court has decided any issue on merit. The whole purpose to
dismiss the appeal on account of smallness of amount is with a
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C/FA/2714/2016 ORDER DATED: 27/01/2025
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view to avoid hardship both physically and financially on the
part of the original claimant to appear and defend the case.
Therefore, this order shall not be cited as precedent in any
pending matters arising from same accident before any Court.
The appellant is at liberty to revive the appeal in case of
difficulty.
(J. C. DOSHI,J)
ORDER IN R/CROSS OBJECTION NO. 46 of 2017
Being aggrieved and dissatisfied by the judgment and
award dated 02/06/2016 passed by the Ld. MACT (Aux.), Anand
in MACP No. 112 of 2009, the org. claimant has preferred the
cross-objection seeking enhancement of the claim granted by the
tribunal whereby the learned tribunal awarded compensation of
Rs.2,95,000/- with 8% interest P.A. from the date of filing of the
petition till its realization holding opponents jointly and severally
liable to pay the compensation.
2. The brief fact of present case is that on 01/01/2009 at
11:00 a.m. while original claimant namely Mrs. Kashiben
Maganbhai Parmar was travelling in auto rickshaw No. GJ-23-U-
5554 and was going from Anand to Kanod (Savli), at that time
Opp. No. 1 applied sudden brake in result deceased fallen down
from auto rickshaw and accident occurred. In same accident
grievous injuries sustained by the mother (deceased) of cross
objector- original claimant and she succumbed to same injuries
during the treatment on 03/01/2009 at VS Hospital,
Ahmedabad.
3. The claim petition was filed and the learned tribunal and
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the learned tribunal after recording evidenec awarded
compensation as stated in paragraph 1 of this judgment.
4. Learned advocate Mr.Shah for the claimants has submitted
that the tribunal has committed an error in not properly
calculating the amount of compensation. He has submitted that
amount of award is on lower side as the tribunal has not
properly considered the various aspects; like prospective income
of the deceased, negligence, liability and family circumstances,
etc. He has submitted that the deceased was aged about only 52
years at the time of accident and was doing agricultural activity.
He has submitted that at the relevant point of time, the income
would come to Rs.2900/- considering the work with which he
was involved plus prospective income @ 10% deducting one-forth
there-from. He has submitted that the tribunal has erred in
considering the prospective income and deduction of personal
expenses looking to the dependents and age of the deceased. He
has submitted that the loss of dependency would require to be
increased.
5.1 He has further submitted that considering the general and
non-pecuniary damages, the tribunal should award Rs.18,500/-
each towards loss of estate and funeral expenses. He has also
submitted that towards loss of consortium, there are four
dependents and therefore, it would be awarded Rs.48,400/- to
each dependent should be awarded as per the decision of the
Hon'ble Apex Court in the case of United India Insurance Co.
Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021)
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11 SCC 780. To buttress his submission, he has relied upon
the judgment of the Hon'ble Apex Court in case of Chandra @
Chanda @ Chandraram and another Vs. Mukesh Kumar Yadav
and others reported in (2022) 1 SCC 198.
5.2 He has submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and
this appeal may be allowed.
6. Per contra, Mr.Majmudar, learned advocate for respondent
- Insurance Company has submitted that the impugned
judgment and award passed by the Tribunal is just and proper.
The Tribunal has rightly considered the income of the deceased,
the age of the deceased, the dependency and future aspect of
income. He has submitted that under the head of loss of estate
and funeral expenses, the Tribunal has rightly awarded
compensation. He has submitted that the amount under the
head of loss of consortium is just and proper. He has submitted
that this appeal may be dismissed and no interference be made
by this Court.
7. It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the
concept of 'just and fair' compensation. It is a beneficial
legislation which has been framed with the object of providing
relief to the victims or their families. Section 168 of the Motor
Vehicles Act deals with the concept of 'just compensation' which
ought to be determined on the foundation of fairness,
reasonableness and equitability. Although such determination
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can never be arithmetically exact or perfect, an endeavor should
be made by the Court to award just and fair compensation
irrespective of the amount claimed by the claimants.
8. I have considered the submissions made by the rival
parties. I have perused the record and proceedings of the
Tribunal. I have gone through the impugned judgment and
award passed by the learned Tribunal. From the record, it
transpires that the deceased was aged about 38 years and was a
driver. So far as his monthly income is concerned, no
documentary evidence has been produced. But, in view of the
judgment of the Hon'ble Apex Court in case of Chandra @
Chanda @ Chandraram and another Vs. Mukesh Kumar Yadav
and others reported in (2022) 1 SCC 198 wherein it is observed
that merely because claimants were unable to produce
documentary evidence to show the monthly income of deceased,
same does not justify adoption of lowest tier of minimum wage
while computing the income. Therefore, it would meet the ends
of justice if monthly income is considered Rs.2,900/- as
provided under the notification of minimum wages prevailing at
the relevant point of time. By adding 10% prospective income, it
would come to Rs.290/- and therefore, total income comes to
Rs.3190/- per month. Since at the time of accident, there were
total four dependents, 1/3rd would be proper to be deducted as
personal expenses instead of 1/3rd as deducted by the Tribunal
and therefore, it would come to Rs.1064/-. Hence, the average
income would come to Rs.2,126/-. As the deceased is aged about
52 years, multiplier of 11 is proper as per the ratio laid down
by the Hon'ble Apex Court in the case of Sarla Verma versus
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Delhi Transport Corporation reported in (2009) 6 SCC 121, it
would come to Rs.2,80,632/- as future loss, which is required to
be awarded to the claimants.
9. Further, considering the ratio laid down by the Hon'ble
Apex Court in the case of Pranay Shethi (supra), as general and
non-pecuniary damages, under the head of loss of estate and
funeral expenses, if we award Rs.18,500/- each, which would be
the just and proper compensation.
10. Further, there are three dependents to the deceased.
Therefore, as per the decision of the Hon'ble Apex Court in the
case of United India Insurance Co. Ltd., versus Satinder Kaur @
Satwinder Kaur reported in (2021) 11 SCC 780 and in case of
Rasmita Biswal Vs. Divisional Manager, National Insurance
Company reported in 2022 (2) SCC 767, Rs.40,000/- consortium
to each dependent and 10% rise, which comes to Rs.48,400/- as
consortium.
11. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 2,80,632/-
Loss of Parental Consortium 48,400/-
Medical Expenses 7,000/-
Loss of Estate 18,500/-
Funeral Expenses 18,500/-
Pain, shock and suffering 10,000/-
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C/FA/2714/2016 ORDER DATED: 27/01/2025
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Total Compensation 3,64,532/-
Less : Amount which is already awarded 2,95,000/-
Additional amount which is awarded 69,532/-
12. Therefore, I hold that the claimants are entitled to get the
total amount of compensation of Rs.3,64,532/- with 8% 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.
13. For the reasons recorded above, the following order is
passed.
14. The present cross-objection is partly allowed.
14.1 The Insurance Company is directed to deposit the
enhanced amount Rs.69,532/- with 8% p.a. interest from the
date of claim petition till its realization before the concerned
Tribunal, within a period of six weeks from the date of receipt of
this order.
14.2 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.
14.3 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
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C/FA/2714/2016 ORDER DATED: 27/01/2025
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14.4 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
sompura
