Gujarat High Court
Minor Devanshi Digvijaysinh vs Ratan Charan Parbatbhai on 29 January, 2025
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C/FA/4565/2023 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4565 of 2023
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MINOR DEVANSHI DIGVIJAYSINH & ORS.
Versus
RATAN CHARAN PARBATBHAI & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,2,3,4
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants - original
claimants being aggrieved and dissatisfied with the judgment
and award dated 28.11.2018 passed by the Motor Accident
Claims Tribunal, Surenranagar in Motor Accident Claim Petition
No.17 of 2011.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
28.08.2010, the deceased was going on his motorcycle No.GJ-
13-L-4700 towards Surendranagar and when he reached near
the place of accident, one Tanker No.GJ-12-T-9301 came in rash
and negligent manner and dashed with the motorcycle of the
deceased and upon occurrence of the accident, deceased
sustained fatal injuries and later on died.
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3. Learned advocate for the appellants - claimants has
submitted that the Tribunal has committed an error in not
properly calculating the amount of compensation. She would
further submit that deceased aged 34 years at the time of road
accident was second generation lawyer was practicing for ten
years along with his father who was also practicing in District
Court, Surendranagar. She would submit that learned Tribunal
erred in taking income of deceased at Rs.3,000/- which is below
minimum wage of Rs.4,310/- at the time of road accident.
Learned Tribunal also erred in not granting compensation under
the head of loss of future prospects. She would further submit
that learned Tribunal erred in not granting compensation under
the head of loss of consortium to the claimants which they are
entitled to get in view of judgment of Hon'ble Supreme Court in
case of Magma General Insurance Company Limited vs. Nanu
Ram alias Chuhru Ram - 2018 (18) SCC 130. She would
further submit that the claimants would be entitled to get
compensation under heads of loss of estate and funeral expenses
at Rs.18,150/- as per judgment of Hon'ble Supreme Court in
case of National Insurance Company Limited vs. Pranay Sethi
- 2017 (16) SCC 680. She would submit that learned Tribunal
has rightly taken multiplier of 16 while calculating
compensation.
3.1 She has submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and
this appeal may be allowed.
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4. Per contra, 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.
5. Apt to note that the Motor Vehicle Act, 1988 is a beneficial
piece of Legislation. The concept of just and fair compensation is
integral and seminal to the MV Act. The compensation to be
awarded under the principle of just and fair compensation to the
injured of the road accident or the legal representative/s of the
deceased person is based on the principle of fairness,
reasonableness and equability. Anguish of the heart or for
mental turbulence being consequential result of the road
accident cannot be actually compensated, but the quint
essentiality lies in adopting holistic and pragmatic view to the
computation of the compensation for the loss sustained, which is
to be in the realm of realistic approximation. Although exact or
perfect arithmetical calculation of compensation for reparation of
the loss arrived from the road accident is almost impossible. The
Tribunal is bestowed with duty to make an endevour to award
just compensation regardless of the amount claimed by the
claimants. The determination of the quantum of compensation
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therefore, must be liberal and not niggardly since the law values
life and limb in a free country in generous scale. Needless to
state that money may be awarded, so that something tangible
may be procured to reach something else of the like nature,
which has been destroyed or lost, but money cannot renew
physical frame that has been battered and shattered being a
result of the road accident. Yet Tribunal to endavour to bring
back victim to stage of pre-road accident as far as possible
Thus, the award must be reasonable and cannot be assessed
with moderation though it cannot at the same time be pity and
what could be granted must be just, fair and equitable
compensation.
6.1 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 learned Tribunal has erred in not adding the
future prospects. The deceased was second general advocate
having practice of ten years along with his father who was also
practicing in District Court, Surendranagar. Bar Council of
Gujarat has issued Sanad No.G-973 of 2000 to the deceased and
Surendranagar Bar Association has issued certificate at Exhibit-
54 that deceased was member of the Bar an having active
practice in District Court, Surendranagar. The evidence
produced at Exhibit-54 and 55 indicates that deceased was
holding agriculture land and said fact is also deposed by mother
of the deceased in her deposition as P.W.1. Taking all these
aspects into consideration and command of Section 168 of the
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Motor Vehicle Act, 1988, I fix the income of deceased to
Rs.12,000/- per month. Since the deceased lost his life at the
age of 34 years, 40% rise of his income woul be required to be
granted for calculating loss of future prospects. The deceased is
survived by five dependents and therefore, 1/4 should be
deducted for personal and pocket expenses. Further, considering
the ratio laid down by the Hon'ble Apex Court in the case of
Pranay Shethi (supra), the general and non-pecuniary damages,
Rs.18,150/- each towards loss of estate and funeral expenses
should be awarded. Towards loss of consortium, there are five
dependents and therefore, Rs.48,400/- to each dependent being
filial, parental and spousal consortium 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) 11 SCC 780. The multiplier of 16 has
been rightly granted by the learned Tribunal which is
maintained. The interest rate of 7.5% per annum granted by
learned Tribunal is also maintained.
6.2 The widow of deceased Vandanaben has remarried. It
settled position of law that even widow who remarried would be
entitled to get compensation under the head of consortium.
Learned Tribunal while granting compensation did not grant
compensation under the head of consortium. A complete judicial
anarchy is displayed by the learned Tribunal and it leads to
miscarriage of justice. In case of Jagruti Shishir Banugariya vs.
Ravji Kanthan Ahir - 2016 (2) GLH 113, the Division Bench of
this Court held as under :
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"9. On the aspect of remarriage by the appellant, we
may record that this Court [(Jayant Patel, J.) (one
of us)] had an occasion to consider the issue in
First Appeal No. 4492/07 in the case of National
Insurance Company Ltd. vs. Bhartiben Bhupatbhai
and others decided on 07.09.2007. This Court in
the said decision, at paras 3 to 5, observed as under -
3. The learned counsel for the appellant first
contended that the wife of the deceased
would not be entitled to the compensation
because she has remarried after the incident and
in furtherance to his submission, he contended
that as per the deposition of the motherinlaw,
who is one of the claimant, the accident
occurred one day after the marriage and after about
three months, she has remarried and since she has
remarried, she cannot be said as dependent
entitled for compensation. The learned counsel
further contended that the mother of the deceased
would only be entitled to the compensation and
not the widow of the deceased who has
remarried. The learned counsel further
contended that as per Section 166 of the Motor
Vehicles Act, only legal representative is entitled
to file a claim petition. If the wife has
remarried, she would cease to be the legal
representative and therefore, not entitled to
claim the compensation as per the Act. The
aforesaid aspects are not considered by the Tribunal
and there is an error committed by the Tribunal.
4. The examination of the said contention shows
that the basis of the contention is on the wrong
premise. The tortuous liability would accrue on
the date of accident. Merely because the adjudication
has taken place on a later stage is not a relevant
circumstance to get away from the liability or
to repudiate the liability of the tortfeaser. Therefore,
if such principles are applied on the date of the
accident, the lawfully wedded wife or the
widow of the deceased would be entitled to
the compensation. Merely because at a later
stage she remarried, is absolutely not
justifiable ground to deprive her from the
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compensation nor the insurance company which is
otherwise liable to pay the compensation can get
away from the liability. This Court had
considered the similar question in the First Appeal
No.3299 of 2007 which came to be decided
on 10.08.2007 in which the Court has observed as
under:
3. The learned Counsel for the appellant raised the
only contention that the claimants were only
father and mother of the deceased since the wife
of the deceased has remarried and on account of
her abandonment of the claim pending the claim
petition and, therefore, the Tribunal ought to have
awarded 1/3rd of the amount of dependency
benefit, instead of 2/3rd of the benefits and,
therefore, there is an error committed by the
Tribunal in awarding the compensation to the
extent of 2/3rd dependency benefit.
4. The learned Counsel for the original claimants,
during the course of hearing placed on record the
application for deletion, the order passed by this
Court and the affidavit of the wife of the
deceased and also the recent affidavit dated
18.7.2007 for the declaration by the wife, who
has remarried to the effect that she has
abandoned the right in favour of the parents of
the deceased.
5. It appears that as per the principles of tortuous
liability the relevant event is the date of the accident
and no the subsequent circumstances of the
dependent members of the deceased, who
expired in the accident. It is not in dispute
that on the date of the accident the deceased was
married and the wife as well as the parents namely;
father and mother both were dependents of the
deceased. Therefore, the liability, if any, in
accordance with law did accrue for the appellant
Insurance Company or the other tort feasors, as the
case may be. It is true that in the present case,
pending the claim petition, the wife of the deceased
has abandoned the claim and on account of the
same, her name was deleted, but under such
circumstances, the reasonable construction would
be that the wife is not interested to succeed
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the property or the dependency benefit realised
therefrom of the deceased. Even as a
successor of any person, who is governed by
Hindu Succession Act, wife, father and mother are
in the first degree of the successor. On
account of either non existence of any of the
members of successor in the first degree, the
properties are to be enjoyed by the remaining
members falling in the category of first degree
succession. It may be that the number of persons,
who are dependent upon the deceased may have the
relevance while ascertaining the compensation,
but after the accident, if the wife has remarried
or that one of the parents, either father or
mother has expired, would not be a justifiable
ground to contend that the Insurance Company
would not be liable to pay the compensation, though
liability already accrued in accordance with
law on the date of accident.
6. Therefore, keeping in view the aforesaid
aspects, if the present case is considered, it
cannot be said that the Tribunal has committed
error in awarding 2/3rd amount as
compensation.
As observed earlier, the appellant Insurance
Company would not be entitled to take any benefit of
the deletion of the name of the wife. Further, it also
deserves to be recorded that the affidavit is
filed, which shows that the wife has abandoned her
right in favour of the parents of the deceased.
Such circumstances are not unknown in cases
where on account of the accident the person
concerned has expired and the wife has
remarried. It appears that if the legal liability
based on the principles of law of tort read with the
provisions of the Motor Vehicle Act has accrued on
the date of accident, the Insurance Company
cannot validly contended that the Tribunal ought not
to have awarded the compensation merely
because the wife has remarried or she has
abandoned her right or got herself deleted by
abandoning the right in favour of the parents of
the deceased.
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7. The reference may also be made to the decision of
the Division Bench of this Court in case of New
Indian Insurance Company Limited v. Ramsinh
Abhesinh Rathod & Ors.", reported in 2006(0)
GLHEL 217371, wherein the Division Bench of
this Court, on account of the death of one of the
parents, observed that the quantum of
compensation would continue, if subsequent to the
date of the accident, even if one of the
surviving parents has continued to hold the interest.
8. In view of the above, it cannot be said that
the Tribunal has committed error in awarding
the compensation of 2/3rd of the dependency
benefit.
9. Hence, the appeal is meritless and, therefore,
deserves to be dismissed.
5. Therefore, the contention as sought to be canvassed
cannot be accepted. The attempt on the part of the
learned counsel to contend that the marriage was
only for one day and the wife is now not dependent
upon the income of the deceased on account of the
remarriage, cannot be countenanced at the
instance of the Insurance Company and this
Court is not called upon to decide the inter se dispute
between the motherinlaw and the wife. So far as
the insurance company is concerned, as the
tortuous liability has accrued, it is not absolved
or cannot get away from the liability to pay
the compensation as per the Act to the legal
heirs of the deceased. Wife of the deceased, even if
married at a later stage would continue to
represent the estate for claiming the compensation
under Section 166 of the Act which is based on
the cause of action on the date of the accident
and therefore, the said contention cannot be
accepted and is rejected."
The aforesaid observations show that this Court
by relying upon the earlier decision, wherein the
reference of another decision of the Division
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Bench is also made, the contention raised by the
Insurance company to avoid liability on account
of remarriage of wife of the deceased was
expressly negatived."
6.3 Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 24,19,200/-
=Rs.12,000/- + Rs.4,800/- (40% rise)
=Rs.16,800/- minus 1/4 for personal exp.
=Rs.12,600/- x 12 months x 16 multiplier
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Consortium (Rs.48,400/- x 5 dependents) 2,42,000/-
Total 26,97,500/-
Less: Amount which is already awarded 6,34,800/-
Additional amount which is awarded 20,62,700/-
7. Therefore, I hold that the claimants are entitled to get the
enhanced compensation of Rs.20,62,700/- with 7.5% p.a.
interest from the date of filing the claim petition till its
realization, jointly and severally from the opponents, which
would meet the ends of justice. Rest of the direction(s) of the
Tribunal remain same.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed.
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8.2 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of six weeks from the date of receipt of this order.
8.3 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 fixing the apportionment
and keeping in mind that widow of deceased has remarried, by
account payee cheque / NEFT / RTGS, after proper verification
and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
