Gujarat High Court
Aarifali Sherali Saiyed vs Yakubmohhamed Lunat on 13 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1843 of 2015
With
R/FIRST APPEAL NO. 1844 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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AARIFALI SHERALI SAIYED
Versus
YAKUBMOHHAMED LUNAT & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MR C S SHUKLA(7549) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 13/11/2025
ORAL JUDGMENT
ORDER in First Appeal No.1843 of 2015:
1. The present appeal arises from the judgment and award
passed in MACP No.191 of 2007 dated 24.05.2013 by the
learned Motor Accident Claims Tribunal (Aux.), Vyara.
2. It appears that by way of the common impugned judgment
and award, the Tribunal has been pleased to award a sum
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of Rs.4,08,240/- along with the simple interest at the rate
of 8% per annum in MACP No.191 of 2007 and in respect
of MACP NO.192 of 2007, the award amount is
Rs.2,86,400/- along with the simple interest at the rate of
8% per annum. It may be noted that the MACP No.191 of
2001 is in respect of the injured claimant Mr.Aarifali
Sherali Saiyed. Where, insofar as the heirs of the deceased
Rameshbhai Rathod have preferred MACP No.192 of 2007.
3. The accident is of 30.05.2007. It appears that on the fateful
day, at about 9:30 p.m., the applicant of MACP No.191 of
2007, together with one Mr.Rameshbhai Bhulabhai Rathod
were travelling on motorcycle belonging to the claimant of
MACP No.191 of 2001, bearing registration no.GJ-15-E-
5805. They were travelling on Surat-Dhulia Highway road.
When they reached the outskirts of village Paniyari, an ST
bus bearing registration no. GJ-18-Y-155, driven by the
opponent no. 1 Mr.Yakubmohhamed Lunat, came in a
rash and negligent manner, and dashed the said bus on to
the motorcycle referred to hereinabove. As a result, the
injured applicant in MACP No.191 of 2007 suffered
injuries, however, the pillion rider Mr.Rameshbhai
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Bhulabhai Rathod lost his life owing to the injury occurred
in the aforesaid accident. Hence, the said claim petitions.
4. The present common judgment and award has been
challenged only on the ground of quantum. It was
submitted that negligence to the extent of 20% attributed
to the claimant (driver of motorcycle) is also not challenged.
It may be noted that again the income per se in respect of
the MACP No. 191 of 2007 has not been disputed.
However, what has been disputed that the Tribunal has
not been pleased to award future prospects. Moreover, the
amount under conventional heads were on the lower side
and there was no thing awarded towards prosthetic leg.
5. At the outset, attention was drawn of this Court in respect
of the functional disability of the injured applicant in
MACP No.191 of 2007 (hereinafter "the injured applicant")
had suffered. The attention was drawn of this Court to the
fact that the Disability Certificate in respect of the said
injured applicant was adduced on record at Exhibit-34.On
perusal of the Disability Certificate, it was submitted that
the said Disability Certificate clearly indicates disability of
the injured applicant to the tune of more than 80%. It was
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submitted that the said disability has transcended to the
functional disability to the tune of 100%.
6. It was submitted that, apparently, the injured applicant
was engaged in doing color work/paint jobs. As a result of
the disability suffered by him, namely, owing to
amputation of leg below knee and amputation of thumb of
the right hand, the injured applicant is no longer in a
position to continue with the said work. It was, therefore,
urged that the disability of the injured applicant be
considered at 100%.
7. It was next submitted that as such, owing to the fact that
there was no evidence to substantiate the income of the
injured applicant, more particularly, when in the pleading,
the injured applicant has maintained that he was earning
Rs.3,500/- per month, but, in his affidavit of examination-
in-chief, he has asserted that he was earning income at the
rate of Rs.4,000 to Rs.4,500/- per month. The learned
advocate for the appellant fairly conceded that towards the
said assertion in the affidavit of examination-in-chief, no
evidence was adduced on record before the Tribunal. It
was, therefore, submitted that as such, the income of
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Rs.3,000/- per month for the injured applicant would be
fair. He, however, submitted that to the said income, the
Tribunal ought to have added 40% future prospects in light
of the judgment in the case of National Insurance Co. Ltd
vs Pranay Sethi reported at 2017 (16) SCC 680. He has
also submitted that even in case of the judgment of
Mohammad Sabeer Vs. Regional Manager, UP State Road
Transportation Corporation Ltd. reported at 2023 ACJ 1
(SC), the Hon'ble Supreme Court has been pleased to hold
that even if the future earnings of an individual have
increased after the date of the accident, then too, it cannot
be held that future prospects of such an applicant ought
not to be granted. Relevant Paragraph-20 of the said
judgment was relied on by the learned advocate for the
appellant. It was thus urged that future prospects to the
tune of 40% may be awarded in the present case.
8. It was next submitted by the learned advocate for the
appellant that in the case of Pappu Deo Yadav Vs. Naresh
Kumar and Ors. reported at 2020 ACJ 2695 (SC), the
Hon'ble Supreme Court has held that in such a case,
insofar as the other heads are concerned i.e., medical
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expenses, compensation for pain and suffering,
compensation for special diet and attendant, convenience
charges, loss of amenities and enjoyment of life,
disfigurement and loss of income during treatment were
correctly awarded by the High Court. Adducing the
concerned judgment of the Hon'ble High Court of Delhi
being the judgment in MAC.APP.520 of 2016 dated 13th
September, 2018 authored by Hon'ble Mr. Justice Sunil
Gaur, it was submitted that in the said case, the amount of
pain and suffering was awarded to the tune of
Rs.2,00,000/-. It was also submitted that the
compensation for loss of amenities and enjoyment of life
was also awarded to the tune of Rs.2,00,000/-. It was
submitted by the learned advocate for the appellant that in
the said case, the injury was of 89% disability in relation to
the right upper limb which had been amputated. Drawing
an analogy to the facts of the present case, it was
submitted that in the present case also, there was an
amputation of leg of the present appellant, and therefore,
the disability ought to be suitably awarded. It was
submitted that in the said case before the Hon'ble Supreme
Court, the person concerned was a businessman. However,
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in the present case, the person is engaged in labor work,
namely, that of doing color work. It was submitted that,
however, the injuries were similar and hence the
compensation in respect of the undergoing pain and that
for loss of amenities ought to be on the same scale, and
therefore, the said scale, as adopted by the Hon'ble
Supreme Court as well as the Hon'ble Delhi High Court,
may be adhered to. He, therefore, urged that under the
head of loss of amenities and enjoyment of life as also in
respect of compensation for pain, shock and suffering,
Rs.2,00,000/- each may kindly be awarded.
9. Insofar as the issue about prosthetic leg is concerned,
reliance was placed in the case of Mohd. Sabeer (supra).
There, relying on paragraph-23 of the said judgment, it was
submitted by the learned advocate that in the said case,
the age of the appellant was of 37 years and that the
Hon'ble Supreme Court had assumed that he would at
least survive till 70 years, if not more. And thereafter,
considering that at least three prosthetic limbs would be
required in his lifetime for him to be maintained till he
reaches the age of 70, therefore, the Hon'ble Supreme
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Court was pleased to award a sum of Rs.7,80,000/- for
purchase of three prosthetic limbs and for maintenance of
the same, an additional amount of Rs.5,00,000/- was
awarded. It was thus submitted by the learned advocate for
the appellant that in the circumstances, an aggregate sum
of Rs.12,80,000/- ought to be awarded towards
maintenance and purchase of prosthetic limbs. It was
submitted that in the said case also, there was an
amputation of right leg below knee. He, therefore, urged to
this Court that appropriate sums under these heads may
kindly be awarded.
10. The learned advocate for the respondent no.2 has
submitted that as such, the Tribunal has taken into
account every aspects pertaining to this accident, and
therefore, the amount as awarded by the Tribunal being
reasonable, need not be interfered with. He, therefore,
urged that there is no cause for interference in the
impugned judgment and award passed by the Tribunal.
11. Having heard the learned advocates for the respective
parties, this Court proceeds to decide the present matters
in terms appearing hereinafter.
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12. Insofar as the First Appeal No.1843 of 2015 (MAC Petition
No.191 of 2007) is concerned, the point of determination
that arises in the present Appeal is whether the
compensation awarded by the Tribunal, considering the
overall factors of the case, is just and fair? If not, whether
it needs to be enhanced? And to what extent?
13. On perusal of the impugned judgment and award, it is
plain that the Tribunal has not considered prospective
income. Awarding of prospective income has been settled
by the judgment in Pranay Sethi (supra) and has been
reiterated from time to time, including that in the case of,
case of Mohd. Sabeer (supra). At this juncture, Paragraph
Nos.17 to 21 from the said judgment of Mohd. Sabeer
(supra), under the head of future prospects, need to be
quoted hereinbelow for the ease of reference:
"Future prospects:
17. The High Court has not applied the quantum for
future prospects in the compensation granted. In its
reasoning, the High Court has stated that the income tax
returns relied upon by the appellant show that despite the
injury the appellant's income had subsequently increased
and hence it cannot be said that there is a loss of future
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earnings.
18. It is a well settled position of law that in cases of
permanent disablement caused by a motor accident, the
claimant is entitled to not only future loss of income, but
also future prospects. It has been reiterated by this Court
in multiple instances that 'just compensation' must be
interpreted in such a manner as to place the claimant in
the same position as he was before the accident took
place.
19. The accident that caused the injury took place on
12.6.2009. The acknowledgment of both the income tax
returns produced by the appellant shows that tax returns
were till 31.3.2008 and 31.3.2009. Both the income tax
returns produced as proof of income were before the
accident took place, and hence the High Court's finding
that the income of the appellant has increased after the
disability is incorrect.
20. It is also to be noted that even if the income of the
appellant had increased after the accident, it would not be
enough grounds to disable the appellant from claiming
compensation for future prospects as the rise in income
may be attributed to multiple other factors.
21. In the light of National Insurance Co. Ltd. v. Pranay
Sethi, 2017 ACJ 2700 (SC), the applicable 40 pe cent
addition of future prospects will be given as compensation
to the appellant herein."
14. It is plain that the Hon'ble Supreme Court has been
pleased to reiterate that, even if income of the appellant
had increased, that would not be a ground for not
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awarding future prospects. However, in the present case,
the Tribunal appears to have just skipped the aspect of
granting future prospects. In the circumstances, relying on
the judgment of Mohd. Sabeer (supra) and in the case of
Pranay Sethi (supra), future prospects need to be awarded.
And age of the injured claimant thus assumes importance.
Now, in the affidavit of examination-in-chief, the deponent
has asserted that he was 39 years as on the date of the
deposition. It may be noted that the deposition is of
12.09.2012. Since the accident is of 30.05.2007, therefore,
as on the date of the accident, the applicant would be 35-
36 years of age, as the accident is of 5 th month and the
deposition is of 9th month of 2012. Similarly, in Disability
Certificate Exhibit 34, the age of the applicant is shown to
be 36 years. The Disability Certificate is again dated
07.11.2007. It may be noted that the contention of the
learned advocate is that by certain months of the accident,
the applicant had completed 36 years, but at the time of
the accident, he was only of 35 years of age. However, the
record does not indicate the birth date of the injured
applicant, and therefore, this Court is of the view that the
age of the applicant can only be taken to be 36 years of age
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and not 35 years. This is not withstanding that
immediately after the accident on 04.06.2007, in the police
statement, the applicant has stated his age to be 35 years.
All in all, in absence of birth certificate and conflicting
assertion of ages across the record, this Court is inclined
only to take the age of the applicant as 36 years and not 35
years.
15. In the circumstances, in terms of the judgment in case of
Sarla Verma & Ors vs Delhi Transport Corp.& Anr.
reported at 2009 (2) SCC (CRI) 1002, the applicable
multiplier would be 15, which is correctly applied by the
Tribunal. The relevant paragarph of the judgment in the
case of Sarla Verma (supra) is reproduced hereinbelow for
the ease of reference:
"15. We therefore hold that the multiplier to be used
should be as mentioned in column (4) of the Table above
(prepared by applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative multiplier of
18 (for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for
26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
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is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7
for 61 to 65 years and M-5 for 66 to 70 years."
16. Insofar as the compensation under other heads is
concerned, these facts squarely fall within the ratio in case
of Mohd. Sabeer (supra). There, the Hon'ble Supreme
Court, after looking to the injury and the fact of
amputation of the leg below knee, was pleased to award
aggregate sum of Rs.12,80,000/-. In the said case, the
injuries have been described by the Hon'ble Supreme Court
in Paragraph-3(III), which reads as follows:
"3(III) As a result of this accident, the appellant and other
passengers in the bus received grave injuries all over their
bodies. The appellant was aged 37 years at the time of
accident and was earning Rs. 10,000 per month. As per
the Disability Certificate, the appellant suffered
permanent disability of 70 per cent, his right lower limb
amongst other injuries."
17. Again, at Paragraph-13 of the very judgment, i.e., Mohd.
Sabeer (supra), the Hon'ble Supreme Court has been
pleased to record as follows:
"13. The appellant has suffered amputation of the lower
right limb, a fracture in the medial wall of the bilateral
orbit, crush injury right leg, fracture tibia right leg,
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exposed vessels and other injuries. As per the disability
certificate, the appellant has suffered 70 per cent
disability, however the High Court has held that the
appellant has suffered only 35 per cent loss in future
earnings due to the disability."
18. In the present case, it may be noted that there is an
indoor treatment certificate issued, which is part of the
record1. On perusal of the indoor treatment certificate, the
following injuries and fractures (as revealed in the X-rays)
are apparent:-
"Injuries:
Open type III6 fracture, M/3w tibia- fibula (R+) without N/v
deficit with ipsilateral (sic) closed fracture lateral tibial
condyle with open type-I fracture M/3 w - Llteral 1-3W
clanide (sic) (R+) with crush injuries (R+) hand with
doubtful tibial viability.
X-Rays:
Fracture M/3w tibia fibula(R+)
Fracture lateral tibial condyle (R+)
Fracture M/3w - Lat.1/3W clavicle (R+)
Crush Injury (R+) hand"
19. Hence, it is clear that in the present case, the injuries to
the applicant and the injuries suffered by the victim of the
accident in case of Mohd. Sabeer (supra), are similar.
Therefore, the finding of the Hon'ble Supreme Court in
1 Page 121 of the R&P received from the Tribunal
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respect of prosthetic limbs and the consequent award of
compensation ought to be followed. And accordingly, as
stated hereinabove, a sum of Rs. 12,80,000/- is awarded in
respect of prosthetic limb.
20. In respect of functional disability, this Court is of the view
that the functional disability suffered by the present
appellant would be to the tune of 100%. It is admitted fact
that the appellant was working as a laborer doing the work
of paint jobs and that with amputation of one thumb and
right leg below the knee, the ability of the appellant to work
as such would be affected cent percent. In short, the
functional disability would be of 100%.
21. Insofar as the award under the head of pain, shock and
suffering is concerned, again, reliance is placed on the
decision in case of Mohd. Sabeer (supra), wherein, as
discussed in earlier portion of this judgment, the
compensation for pain and suffering was awarded to the
extent of Rs.2,00,000/-. As discussed, at the risk of
repetition, the injuries in the case of Mohd. Sabeer (supra)
and that of the present case is also similar. Similarly, the
age of the applicant in that case was 37 years whereas in
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the present case it is of 36 years. Accordingly, the
compensation towards pain and suffering endured by the
appellant would be to the tune of Rs.2,00,000/-. Similarly,
for the loss of amenities of life, again, as the Hon'ble
Supreme Court in the case of Mohd. Sabeer (supra) had
awarded a sum of Rs.2,00,000/-, this Court is also
inclined to follow the said judgment.
22. It may be noted that even in the case of Pappu Deo Yadav
(supra), the Hon'ble Supreme Court was pleased to uphold
a similar compensation which is apparent from reading of
paragraph-23 of the said judgment, as the corresponding
compensation, as demonstrated from the copy of Order
passed in MAC.APP.520 of 2016 passed by the Hon'ble
High Court of Delhi, is found at paragraph-12 of the said
judgment. The relevant paragraph from the said judgment
is reproduced hereinbelow for the ease of reference:
"12. In view of aforesaid, the compensation payable to
Injured is reassessed as under:
1. Compensation for Medical ₹11,000/-
expeneses
2. Compensation for pain & suffering ₹2,00,000/-
3. Compensation for special diet, ₹50,000/-
attendant & Conveyance charges
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4. Loss of earning capacity ₹7,77,600/-
5. Compensation for loss of amenities ₹2,00,000/-
and enjoyment of life
6. Compensation for disfigurement ₹1,50,000/-
7. Loss of income during treatment ₹48,000
Total ₹14,36,000/-"
23. Thus, the view of this Court in respect of awarding
aforesaid sums under the heads of compensation for loss of
amenities and compensation towards undergoing pain,
shock and suffering would be Rs.2,00,000/-, each.
Ultimately, as the final outcome, the following
compensation is liable to be awarded to the present
appellant:
Sr. Particulars Amount Amount
No. already enhanced by
awarded this Court
by the (in Rs.)
Tribunal
(in Rs.)
1 Monthly Income 3,000/- 3,000/-
2 Future prospects - 40%
4 Future Loss of Income 4,21,200/- 5,40,000/-
(3,000 X 12 X
15)
5 Pain, shock and suffering 50,000/- 2,00,000/-
6 Medical expenses 20,100/- 20,100/-
7 Special Diet and 10,000/- 50,000/-
Attendant Charges
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8 Loss of amenities - 2,00,000/-
9 Monthly loss of income 9,000/- -
(as awarded by the
Tribunal)
Total 5,10,300/- 10,10,100/-
Enhanced amount by this 4,99,800/-
Court
Less: Negligence to the 99,960/-
extent of 20%
Enhanced amount by this Rs.3,99,840/-
Court
24. Since the negligence of the present appellant, as
determined by the Tribunal, is not disputed before this
Court, therefore, to that extent, i.e., for 20%, amounts as
awarded by this Court ought to be deducted. Accordingly,
of the awarded amount, the amount of Rs.99,960/- is
liable to be reduced and is reduced and the ultimate
enhanced amount is to the tune of Rs. 3,99,840/-
accordingly.
25. The enhanced amount would carry the interest at the rate
of 9% per annum from the date of filing of the claim
petition till its actual realization. The Insurance Company
is directed to deposit the enhanced amount of with interest
before the concerned Tribunal within a period of eight
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weeks from the date of receipt of signed copy this
judgment.
ORDER in First Appeal No.1844 of 2015:
26. This First Appeal is in respect of the fatality occurred in
the accident, namely, the appellants being the heirs of the
deceased Mr. Ramanbhai Rathod and the same is in
narrow purpose.
27. It was submitted by the learned advocate that in the said
case too, he is only challenging the quantum of
compensation. It was submitted that the Tribunal has
erred in the impugned judgment by not awarding future
prospects to the extent of Rs.1,200/-. It was submitted by
the learned advocate that as such, by adding the future
prospects, the income of the deceased per month is liable
to be considered as Rs.4,200/-.
28. It was thereafter conceded that considering the
dependents being 5, 1/4th income will have to be deducted
from the aforesaid amount of Rs.4,200/- and resultantly, a
sum of Rs.3,150/- would have to be considered towards
monthly income of the deceased. It was submitted that for
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arriving at the multiplicand, the said amount will have to
be multiplied by 12, which would come to Rs.37,800/-. It
was submitted that, again, the Tribunal has erroneously
applied a multiplier of 14, whereas, as per the judgment in
case of Sarla Verma (supra), the applicable multiplier
would be of 15. It was submitted that so multiplied, a sum
of Rs.5,67,000/- will be arrived at (Rs.37,800 X 15).
29. It was submitted that over and above the aforesaid
amount, the Tribunal has only awarded the amount under
the head of loss of consortium to the tune of Rs.10,000/-.
However, it is submitted that in terms of the authority in
case of Pranay Sethi (supra), the consortium at the rate of
Rs.48,400/- will have to be awarded to each of the
appellants. It was submitted that the first appellant is the
widow of the deceased, the appellant nos.2 to 4 are the
children of the deceased and the appellant no.5 is the
mother of the deceased. It was submitted that all of the
said dependents are entitled to consortium at the rate of
Rs.48,400/-. Hence, the aggregate amount under the head
of loss of consortium would be arrived at Rs.2,42,000/-.
30. It was further submitted that the Tribunal also erred in
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awarding a sum of Rs.10,000/- towards loss of estate,
which according to the applicable case laws, would be
Rs.18,150/-. Similarly, a meager sum of Rs.2,000/- was
awarded towards funeral expenses, which too, would be to
the tune of Rs.18,150/-. It was submitted that the
aggregate of the aforesaid amounts under the aforesaid
heads may kindly be awarded. It was further submitted
that in terms of the judgment in case of Khenyei vs New
India Assurnace Co.Ltd.& Ors reported at 2015 (9) SCC
273, in case of a person who is a pillion rider, no
negligence would be attributed to him. It was, therefore,
submitted that the applicable negligence in respect of the
said deceased would be composite negligence, which would
have no bearing on the compensation. It was submitted
that, however, the Tribunal erroneously deducted a
compensation to the extent of 20% from the awarded
amount by the Tribunal on the ground of alleged
negligence of 20% that too, of the driver (not of the
deceased), towards commission of the accident. It was
submitted that no deduction on that count would be
required. It was, therefore, urged that the said
compensation may be enhanced in the aforesaid terms.
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31. The learned advocate for the respondent, however, has
urged that as such enhancement of the compensation is
not liable to be awarded in facts and circumstances of the
case. He submitted that even if such enhancement is
awarded, it may be specified in terms of the judgment in
the case of Khenyei (supra) that the ST Corporation is free
to recover 20% of such sum of amount from the injured
driver, who had contributed to the accident to the extent of
20%. He, therefore, urged that the said direction would be
in terms of the judgment in the case of Khenyei (supra) and
that such express direction may be issued permitting the
ST Corporation to recover amount to aforesaid extent.
32. Having heard the learned advocates for the respective
parties, this Court proceeds to decide the present appeal in
terms appearing hereinafter.
33. The points of determination that arise in the present case
are as follows:
(A) Whether the Tribunal has erred in awarding
appropriate compensation? And whether the
compensation is liable to be enhanced in view of the
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present facts and circumstances of the case? If so, to
what extent?
(B) Whether there is a need for express direction of
this Court to enable the respondent to recover
amount from the other tort-feasors to the extent of
20%, although, in respect of the deceased, the
negligence applicable would be that of composite
negligence?
34. At the outset, it may be noted that the Tribunal has not
awarded future prospects, as has been mandated by
Pranay Sethi (supra) and subsequently reiterated by the
Hon'ble Supreme Court in various judgments. The age of
the appellant is of 39 years, as is apparent from the
recording of the present proceedings, namely, Exhibit-32,
being the School Leaving Certificate. In the said document,
the Date of Birth of the deceased is 25.07.1968. The date of
accident is 30.05.2007. Hence, so calculated, the age of the
deceased would be 38 years on the date of the accident.
Accordingly, the future prospects would be to the tune of
40%, as the age of the deceased is below 40 years as on the
date of the accident. Once, 40% enhancement towards
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future prospects is allowed, the monthly income of the
deceased would be Rs. 3,000 plus Rs. 1,200/-, which is
Rs.4,200/-.
35. Considering that the deceased had 5 dependents, namely,
his mother, wife and three children, the expenses towards
personal expenditure would be to the extent of 1/4th of the
said income, which would be Rs.4,200/- divided by 4,
which is Rs.1,050/-. Now, deducting the sum of Rs.1,050/-
minus Rs.4,200, a sum arrived at is Rs.3,150/-.
36. Considering the amount of monthly income Rs.3,150/-,
the multiplicand would be Rs.3,150/- multiplied by 12,
which would be Rs. 37,800/-. Again, multiplying the
multiplier in terms of the age, that multiplier would be 15,
as per the judgment in the case of Sarla Verma (supra).
Unfortunately, the Tribunal had erroneously applied the
multiplier of 14, which needs to be interfered, and hence
the correct multiplier being awarded is that of 15 and,
therefore, the loss of future income would be to the tune of
Rs.5,67,000/-.
37. Furthermore, under the conventional heads, the Tribunal
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has only awarded Rs. 10,000/- aggregate towards loss of
consortium. However, considering that all the appellants
herein are entitled to the compensation under the head of
loss of consortium, the same would be Rs. 48,400/-
multiplied by 5, which is Rs. 2,42,000/-. Adding thereto, a
sum of Rs.18,150/-2 towards Loss of Estate (the Tribunal
has only awarded Rs.10,000), and a sum of Rs.18,150/-
towards funeral expenses (the Tribunal has only awarded
Rs. 2,000). The aggregate amount of compensation thus
arrived at would be Rs.8,45,300/-.
38. It appears that the Tribunal has committed an error when
it has deducted 20% towards the negligence of the driver of
the motorcycle. It may, however, be noted that the
deceased was a pillion rider and insofar as the deceased is
concerned, the negligence would be composite negligence
and not contributory negligence. In the circumstances, no
amount of compensation awarded to the heirs of the
deceased is liable to be awarded Accordingly, no deduction
on the count of negligence ought to be made in the present
proceedings.
2 As per the judgment in case of Pranay Sethi (supra) as also Magma General Insurance
Co. Ltd vs Nanu Ram Alias Chuhru Ram reported at AIRONLINE 2018 SC 189
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39. At this juncture, it may be noted that, however, the
negligence apportioned between the vehicles would aid the
respondents to recover such amount from each other, i.e.,
if the ST pays the 100% of compensation at the outset, it
would be entitled to 20% of this amount from the other
tort-feasors, i.e., the injured applicant. The same would be
in consonance with the dictum laid down in Khenyei
(supra), wherein it has been stated that once such
negligence is apportioned, the need for fresh adjudication
of negligence between the tort-feasors would not be
required for the purpose of recovery by one of the joint tort-
feasors who may have paid the entire amount in view of it
being held liable, jointly and severally. However, even
without such clarification, only on the strength of the
judgment in the case of Khenyei (supra), more particularly,
in view of Clause (iii) of operative portion of judgment in
Khenyei (supra), the tort-feasor would recover the balanced
amount from the other tort-feasors, provided that all the
joint tort-feasors are impleaded and the negligence is
approtioned by the Tribunal/Hon'ble Appellate Forms. This
would be in terms of the law laid down by the Hon'ble Apex
Court and as such, even without such clarification, the
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position remains the same and therefore, this Court is not
inclined to issue express direction. It may be noted that
issuance of such direction by this Court would mean that
in cases where such direction is not issued, the tort-
feasors, in appropriate cases cannot possibly initiate the
recovery proceedings. Such is not the law of the land.
Thus, this Court is not inclined to issue such direction, as
indicated in the foregoing portion of this judgment.
40. In the circumstances, the total compensation liable to be
awarded to the heirs of the deceased would be as follows.
Sr. Particulars Amount Amount
No awarded by determined by
. the Tribunal this Court
1 Monthly income 3,000/- 3,000/-
2 Future Prospects - 40%
3 Monthly income after - 4,200/-
future prospects
4 Personal expenses 1,000/- (1/3) 1,050/- (1/4)
6 Loss of Income 3,36,000/- 5,67,000/-
(3,150/- X 12
X 15)
7 Loss of consortium 10,000/- 2,42,000/-
(48,400 X 5)
8 Loss of Estate 10,000/- 18,150/-
9 Funeral Expenses 2,000/- 18,150/-
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TOTAL 3,58,000/- 8,45,300/-
Enhanced Amount by Rs.4,87,300/-
this Court.
41. As may be noted, the enhanced compensation to the tune
of Rs.4,87,300/- is liable to be paid by the respondents,
jointly and severally. The enhanced amount would carry
the interest at the rate of 9% per annum from the date of
filing of the claim petition till its actual realization. The
respondent is directed to deposit the enhanced amount of
with interest before the concerned Tribunal within a period
of eight weeks from the date of receipt of signed copy this
judgment.
42. Upon the amounts in both these appeals so being
deposited within the Tribunal, the Tribunal shall disburse
the entire awarded amount lying in the FDR and/or with
the Tribunal, without creating any further FDRs, with
accrued interest thereon, if any, to the claimants, after
making apportionment, if required, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure. No further FDR be created on
enhanced amounts.
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43. While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
44. The R&P of both cases, if any, be sent back to the
concerned Tribunal, forthwith.
(J. L. ODEDRA, J)
JIGAR J RABARI
