Gujarat High Court
Satishkumar Manishankar Gor vs Jesha Jiva Mata on 30 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3272 of 2024
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SATISHKUMAR MANISHANKAR GOR & ORS.
Versus
JESHA JIVA MATA & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3
MS E.SHAILAJA(2671) for the Defendant(s) No. 2
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 30/01/2025
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 26.11.2019 passed by the Motor
Accident Claims Tribunal (Aux-5), Bhuj at Kuchchh in Motor
Accident Claim Petition No.596 of 2008.
2. Brief facts of the case are as under:
2.1 The brief facts of the present appeal are such that,
the deceased Smt. Ushaben Satishkumar Gor was working as a
Govt. School Teacher. That, on 10.10.2008, she was
proceeding from her house to Prima School, Swaminarayan
Nagar, Madhapar via Kachchh Rehabiliation Centre road on her
Scooty Pep Deluxe bearing registration No.GJ-12-AG-359. She
was driving the Scooty Pep Deluxe on the left hand side of the
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road with moderate and controllable speed. Around 7.20 a.m.,
she had crossed the 'T' junction of G.K. General Hospital to
R.T.O. Circle. There was upward slope between the signboards
of St. Xavier's School and Blind People Association, opposite
Military Garison, Bhuj. After negotiating the upward slop, the
Scooty had entered the main road in slow speed and after
taking the turn, it was proceeding towards R.T.O. Circle.
Meanwhile, Truck bearing registration No.GJ-12-X-2761 had
come from G.K. General Hospital side in full speed with rash
and negligent manner. The truck suddenly came on the
extreme left hand side of the road and dashed with the Scooty
Pep of the deceased Ushaben. As a result, the Scooty Pep
climbed on the footpath and the deceased fell on the road and
was dragged by the rear left side wheels of the truck for some
distance. The truck driver came to his sense after a while and
then stopped after some distance. However, the deceased had
died on the spot and her body was taken out from the rear
wheels of the truck and taken to G.K. General Hospital.
3. Learned advocate for the appellants - claimants has
submitted that the Tribunal has committed an error in not
properly calculating the amount of compensation. He has
submitted that the learned Tribunal did not grant
compensation under the head of consortium to two claimants
being claimant nos.2 and 3, who are the minor son of the
deceased Ushaben. He would further submit that the amount
of compensation for the loss of consortium to the claimant
Satishkumar Manishanker Gor, husband of the deceased, is
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also on lower side. He would further submit that the
compensation granted under two other heads namely, loss of
estate and loss funeral expenses are also not granted in
consonance with the judgment of the Hon'ble Supreme Court
in case of National Insurance Company Ltd. Vs. Pranay Sethi
reported in (2017) 16 SCC 680.
3.1 He has submitted that the compensation is required
to be enhanced by modifying the award impugned accordingly
and this appeal may be allowed.
4. Per contra, learned advocate for respondent No.2 -
New India Assurance Company Ltd. has submitted that the
impugned judgment and award passed by the Tribunal is just
and proper. She would submit that the husband of the
deceased namely, Satishkumar Manishanker Gor expired
during the proceedings of the claim petition and therefore, now
awarding any amount towards loss of consortium cannot be
granted in his favour. She would submit that under the head of
loss of estate and funeral expenses, the Tribunal has rightly
awarded compensation. She would submit that the amount
under the head of loss of consortium is just and proper. She
would submit 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
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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
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
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Tribunal. I have gone through the impugned judgment and
award passed by the learned Tribunal. What could be noticed
on perusing the break-up of the compensation assessed by the
learned Tribunal on page-10 of the impugned and award, it
appears that Rs.40,000/- has been assessed under the head of
loss of consortium. Learned Tribunal in para-11 of the
judgment did believe that claimant no.1 would be entitled to
loss of consortium. The term consortium has been well
explained by the Hon'ble Supreme Court in case of Magma
General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram
and others, (2018) 18 SCC 130, whereby, it is held that
consortium can be divided into two parts in three different
terms, 'spousal consortium' for loss of spouse in road accident,
'parental consortium' in case if parents have been / has been
expired in road accident and 'filial consortium' in case where
child / children expire in road accident. It is also settled that
each dependent would be entitled to claim the compensation
individually under the head loss of consortium. In Rasmita
Biswal vs. Divisional Manager, National Insurance Co. Ltd.,
reported in JT 2021 (12) SC 147, the Hon'ble Apex Court has
held that since Constitutional Bench has pronounced the
judgment in case of Pranay Sethi (Supra) in the year 2017,
therefore, now the claimants are entitled to 10% enhancement
under the conventional head of granting compensation.
Further three years have been passed therefore, another 10%
is required to be granted under the judgment of National
Insurance Company Ltd. vs. Pranay Sethi. In view of above, all
the three claimants would be entitled to compensation under
the head loss of consortium be it spousal or parental or filial
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consortium.
6.2 At this juncture, learned advocate Ms. Shailja
argued that claimant no.1 has expired during the pendency of
the claim petition and hence, claimant no.1 is not entitled for
compensation under loss of consortium.
6.3 In Kirti vs. Oriental Insurance Company Ltd.,
reported in 2021 (2) SCC 166, the Hon'ble Apex Court has
crystallized that the children prevailing at the time of filing of
the claim petition has to be considered, it should not be
affected by the subsequent event, therefore, the contention
raised that the claimant no.1 husband of the deceased since
expired during the pendency of the hearing of the claim
petition would not be entitled to get that compensation under
loss of spousal consortium, cannot be accepted and
accordingly, it is rejected.
6.4 Two other non-technical heads are assessed at
Rs.15,000/- each. Further, considering the ratio laid down by
the Hon'ble Apex Court in the case of National Insurance
Company Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680,
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 three
dependents and therefore, 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) 11 SCC
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6.5 Therefore, total compensation would be as under,
which the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 23,67,768/-
Loss of Estate, consortium & funeral 181,500/-
expenses
Total... 25,49,268/-
Less: compensation awarded 24,37,800/-
Total 1,11,468/-
Additional amount which is awarded 1,11,468/-
7. Therefore, I hold that the claimants are entitled to
get the enhanced compensation of Rs.1,11,468/- with 9% p.a.
interest (except for 826 days) 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.
8. For the reasons recorded above, the following order
is passed.
8.1 The present appeal is partly allowed.
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
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interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
8.4 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
Dolly
