Gujarat High Court

Ansuyaben Rameshbhai Kishor vs Anup Transport Company on 28 July, 2025

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                             C/FA/71/2024                                       JUDGMENT DATED: 28/07/2025

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                             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                     R/FIRST APPEAL NO. 71 of 2024

                      FOR APPROVAL AND SIGNATURE:
                       HONOURABLE MS. JUSTICE NISHA M. THAKORE
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                                  Approved for Reporting                        Yes           No
                                                                                              NO
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                                      ANSUYABEN RAMESHBHAI KISHOR & ORS.
                                                    Versus
                                        ANUP TRANSPORT COMPANY & ANR.
                      =============================================
                      Appearance:
                      NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
                      MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 2
                      RULE SERVED for the Defendant(s) No. 1
                      =============================================
                        CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                                       Date : 28/07/2025
                                       ORAL JUDGMENT

1. Heard Mr. Nishit Bhalodi, learned advocate for the

appellants- original claimants. Mr. Mandeep Saluja, learned

advocate has entered his appearance on behalf of the

respondent no.2- Insurance Company. Rule of admission of

appeal issued by this Court upon the respondent no.1 is

reported to have been duly served, however no appearance

has been entered. Noticing the limited issue involved, present

appeal is taken up for hearing in absence of respondent no.1.

2. Present appeal under Section 173 of Motor Vehicle Act,

1988 (hereinafter referred to as the "Act, 1988") at the

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instance of the original claimants essentially challenges the

impugned judgment and award dated 6.4.2023 passed by the

Motor Accident Claims Tribunal (Auxi), Khambhaliya in MACP

No.12 of 2021, to the extent whereby their claim of amount of

compensation to the tune of Rs.20 lakhs for the untimely

demise of their sole earning member in the family has not

been entertained entirely.

3. The brief facts leading to the present appeal as can be

gathered from the record are as under:

3.1. On 21.03.2021, the deceased, who is son of the appellant

no.1 and husband of the appellant no.2 and father of the

appellant nos.3 and 4, was returning on his motorcycle

bearing no. GJ-10-Q-7473 after attending his work. According

to the claimants, the deceased was driving slowly, carefully

and following traffic rules. While he had reached near village

Naghedi, at that time the driver of the opponent no.1 had

driven his Truck bearing registration no. GJ-12-BX-6745 in

rash and negligent manner violating the traffic rules and same

has resulted into accident with the motorcycle driven by the

deceased. Due to impact caused by the offending vehicle,

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deceased had sustained injuries and has succumbed to the

injuries. The FIR was lodged against the driver of the

respondent -transport company which was insured with

respondent no.2- Insurance Company.

4.0. Before the Tribunal, though the notice was served upon

the respondent no.1 being the owner of the offending vehicle,

he had chosen not to appear and contest the claim petition.

The respondent no. 2 Insurance Company has appeared

through its lawyer and has submitted that the written

statement at Exh.22 inter alia disputing the averment made

in the claim petition and the negligency of the truck driver.

5.0. The Tribunal upon appreciation of the oral as well as

documentary evidence brought on record by the claimants

proceeded to examine the issue. The Tribunal after

considering the evidence in the nature of FIR at Exh.24,

panchnama of place of accident at Exh.25 had held the driver

of the respondent no.1 owner of the truck solely responsible

for the occurrence of the accident.

5.1. On the issue of quantum of compensation, the Tribunal

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had taken into consideration the examination in chief affidavit

of the wife of the deceased (at Exh.20). The Tribunal had

considered the birth certificate of the deceased produced on

record at Exh.32, considering the date of birth as 19.10.1976

and noticing the fact that the accident had taken place on

21.03.2021, had arrived at a conclusion that the age of the

deceased was 45 years on the date of accident. As regards the

income of the deceased is concerned, the Tribunal has

considered the evidence of the wife of the deceased that the

deceased was running Auto Garage in the name and style of

Royal Auto Garage and was earning out of the aforesaid work.

No documentary evidence has been led by the claimants, the

Tribunal has fixed the notional income of the deceased as

Rs.60,000/- The reference was made to the decision of the

Hon'ble Supreme Court in the case of Sarla Verma and ors.

vs. Delhi Transport Corporation and Anr. reported in

(2009) 6 SCC 121 as well as judgment of the Constitutional

Bench of the Hon'ble Supreme Court in the case of National

Insurance Company Limited vs. Pranay Sethi & ors

reported in (2017) 16 SCC 680 to arrive at a conclusion that

the addition of 25% future rise can be considered in the facts

of the case. Thus, the Tribunal has considered Rs.75000/-

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towards future prospects (Rs.60,000/- + Rs.15,000/-). The

Tribunal had thereafter deducted 1/4th of the amount

considering the fact that the deceased was survived by four

members in the family. Thus, considering the age of the

deceased as 45 years old at the time of accident, has applied

multiplier of 14. The Tribunal has accordingly determined the

future loss of income and dependency as Rs.7,87,500/-.

5.2. As regards the amount towards loss of estate, loss of

consortium and funeral expenses is concerned, the Tribunal

has considered Rs.40,000/-, Rs.15,000/- and Rs.15,000/-

respectively thereby awarding total amount of compensation

to the tune of Rs.8,57,500/- with interest at the rate of 8% pa

from the date of filing of claim petition till its realization.

6.0. By the said impugned judgment and award, the Tribunal

has not entertained the claim of the original claimants to the

tune of Rs.20 lakhs. Hence, present appeal at the instance of

the original claimants.

7. Learned advocate Mr. Nishit Bhalodi for the appellant at

the outset, has submitted that the challenge in the present

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appeal is essentially on the ground of income of the deceased

being determined on the lower side and the amount of

compensation under the head of loss of consortium as

awarded by the Tribunal. Learned advocate has placed

reliance upon the decision of the Hon'ble Supreme Court in

the case of Govind Yadav vs. New India Assurance

Company Limited reported in 2012 ACJ 28 (SC) to contend

that in absence of any proof of income, noticing the fact that

the deceased was engaged in the work of Auto Garage, the

Tribunal ought to have considered him as a skilled labour and

ought to have followed the yardstick of minimum wages in

order to determine the income of the deceased. Learned

advocate has further pointed out that at the time accident i.e.

in the month of March, 2021, the rates of minimum wages

prescribed by the State Government in case of skilled labour

was around Rs.8800/- per month. He has therefore, urged this

Court to apply the aforesaid yardstick in the facts of the case

and to enhance the amount of compensation accordingly.

Secondly, learned advocate has placed reliance upon the

decision of this Court in the case of New India Assurance

Company Limited vs. Somwati and Ors reported in (2020)

9 SCC 644 as well as in the case of Magma General

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Insurance Co. Ltd vs. Nanu Ram Alias Chuhur Ram &

Ors reported in (2018)18 SCC 130 in order to justify his

claim for enhancement towards loss of consortium is

concerned, learned advocate has pointed out that indisputably

the appellants consists of the mother of the deceased, widow

and their two minor children. He has therefore, submitted

that each of the claimants shall be entitled to an amount of

Rs.48,400/- towards loss of consortium individually. He has

therefore, urged this Court to award an amount of

Rs.1,93,600/- towards loss of consortium. Lastly, learned

advocate has also urged this Court to take into consideration

the principle laid down by the Hon'ble Supreme Court in the

case of Pranay Sethi (supra) in order to enhance the amount

of compensation towards conventional head is concerned. He

has urged this Court to award an amount of Rs.18,150/-

towards loss of estate as well as funeral expenses

respectively. He has therefore, urged this Court to enhance

the total amount of compensation to the tune of

Rs.16,15,900/-.

8. Per contra, learned advocate for the respondent no.2-

Insurance Company has vehemently objected to the aforesaid

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submissions made by the learned advocate for the appellants.

Learned advocate has mainly relied upon the findings and

reasons assigned by the Tribunal and has submitted that the

Tribunal has awarded just and reasonable amount of

compensation under the respective head which does not call

for any interference of this Court in the present appeal. It is

submitted that in absence of any proof of income, the Tribunal

has proceeded to fix notional income and looking to the work

with which the deceased was attached, it cannot be said that

the Tribunal has assessed the income on lower side. As

regards the amount towards loss of consortium is concerned,

learned advocate has submitted that in light of the decision of

the Hon'ble Supreme Court as relied upon the Court may pass

appropriate orders in this regard.

9. Considering the aforesaid submissions of the learned

advocates for the respective parties, in light of the findings

and reasons assigned by the Tribunal and having perused the

original record and proceeding, the only question which falls

for consideration of this Court in the present appeal is as to

whether the Tribunal committed any error in determining the

amount of compensation in the facts and circumstances of the

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case and evidence brought on record ?

10. As regards the issue of income being determined on the

lower side is concerned, it is an undisputed fact that no

documentary proof of income has been brought on record by

the original claimant. The only evidence which is available on

record is the deposition of the widow of the deceased. In her

deposition, she has categorically stated that the deceased was

running Garage. The aforesaid evidence gets corroborated

from the FIR produced on record at Exh.24. The brother of

the deceased has lodged FIR wherein he has mentioned that

the deceased was occupied in the business of running Garage.

Thus, it is established on record that the deceased was

occupied in the business of running Garage. In absence of

any evidence being brought on record with regard to proof of

income, the Tribunal has thought it fit to determine the

income on notional basis. However, as rightly pointed out by

learned advocate for the original claimant that in view of the

decision of the Hon'ble Supreme Court in the case of Govind

Yadav (supra), the Tribunal can always follow the yardstick

of minimum wages in absence of any strict proof of document

of income. The Courts are thus expected to consider the

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aforesaid yardstick with regard to nature of work that was

being performed by the deceased. The State Government in

exercise of its statutory powers under Section 3 of the

Minimum Wages Act, 1948 has issued notification for fixing

wages of skilled workers. Thus, considering the schedule of

minimum wages prevailing on the date of accident for the

skilled labour, in absence of income proof, this Court is

inclined to follow the same yardstick in the facts of the case.

The perusal of the schedule of rates of minimum wages as

prevailing on the date of occurrence of accident which is

21.3.2021, this Court is inclined to accept the appeal of the

original claimant by fixing the income of the deceased as

Rs.8,800/- per month.

11. In absence of any challenge being made by the

respondent -Insurance Company by filing any appeal, the

foundational facts of the case has remained uncontroverted

and unchallenged. Hence, the factors to be considered for the

computation towards future loss of income and dependency is

concerned, the same being considered by the Tribunal in light

of the decision of the Hon'ble Supreme Court, applying the

same factors, the future loss of income of the deceased is

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reconsidered and is enhanced from Rs.7,87,500/- to

Rs.13,86,000/- (Rs.8800/- X 25%: Rs.11,000/- Minus ¼

deduction: Rs.2750/- = Rs.8250/- X 12 X 14).

12. As regards enhancement sought for under the head of

loss of consortium is concerned, considering the fact that the

original claimants includes widow of the deceased, their two

children and aged mother, the Tribunal ought to have

considered each of them entitled to the amount of Rs.44,800/-.

In view of the settled legal principles laid down by the Hon'ble

Supreme Court in the case of Magma General Insurance

Co. Ltd (supra), the amount of loss of consortium is hereby

enhanced from Rs.40,000/- to Rs.1,93,600/- (Rs.48,400/- X 4 ).

13. This brings me to the issue of enhancement of the

amount of compensation sought for under the different

conventional heads are concerned. As rightly pointed out by

the learned advocate for the original claimants, in view of the

decision of the Hon'ble Supreme Court in the case of Pranay

Sethi (supra), the same is required to be reconsidered and

enhanced to Rs.18,150/- respectively. Thus, amount towards

loss of estate and funeral expenses is enhanced to Rs.18,150/-

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respectively. Therefore, original claimant - appellant herein is

held entitled to enhanced amount, as computed hereunder:

Compensation As awarded by this Court (Rs.) Dependency benefits Rs.8,800/- + 25%=

Rs.11,000/- Minus Rs. 2750/-

                                                                       (¼)      =    Rs.8,250/-          X      12=

                                                                       99,000/-

                       For loss of Future loss of 99,000/- X 14

                       dependency benefit                              = Rs.13,86,000/-
                       For loss of consortium                          1,93,600/-- (48,400/- X 4)
                       Funeral               expenses           and 18,150/-

                       transportation
                       Loss of Estate expectation in 18,150/-

                       life
                       Total Compensation                              16,15,900/-
                       Awarded compensation                            8,57,500/-
                       Enhanced Compensation                           7,58,400/-