Gujarat High Court

Triveniben Wd/O Shyamgar Harigar vs Not Known on 16 September, 2025

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                             C/FA/119/2014                                         JUDGMENT DATED: 16/09/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 119 of 2014


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE J. L. ODEDRA

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                                    Approved for Reporting                         Yes           No

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                                    TRIVENIBEN WD/O SHYAMGAR HARIGAR & ORS.
                                                      Versus
                                                NOT KNOWN & ORS.
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                       Appearance:
                       MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4,5
                       MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
                       RULE SERVED for the Defendant(s) No. 2,4,5
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                         CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA

                                                          Date : 16/09/2025

                                                           ORAL JUDGMENT

1. The present appeal arises from the judgment and award

dated 11.10.2003 passed by the learned Motor Accident

Claims Tribunal (Aux.), Bhuj-Kachchh.

2. Vide the impugned judgment and award, the Tribunal was

pleased to pass an order of compensation to the heirs of

the deceased- applicant to the tune of Rs. 3,39,200/- along

with an interest at the rate of 7.5% per annum, recoverable

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from the original opponent nos. 1 to 3, jointly and

severally. The said opponents are the present respondent

nos. 1 to 3.

3. The accident in question allegedly, had occurred on

06.04.2001. One Shyamgar Harigar Gosai, was traveling,

with goods pertaining to his profession in a delivery van

bearing registration no. GQY 5161. The vehicle was of the

ownership of respondent no.4 (original opponent no.4) and

was being driven by respondent no.5 (original opponent

no.5). However, a Truck bearing registration no.GJ-12-U-

7900, being driven negligently and rashly, collided with the

said van. In the resultant accident, the said Mr. Shyamgar

Gosai sustained injuries and ultimately lost his life. The

said Mr. Shyamgar Harigar Gosai shall hereinafter be

referred to as "the deceased".

4. The challenge to the impugned judgment and award is only

on the ground of quantum of compensation. No other

appeal has been preferred by the other opponents of the

original proceedings, including the Insurance Company

concerned.

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5. It was submitted by the learned advocate Mr. Mohsin

Hakim appearing for the appellant that the accident had

happened on 06.04.2001. It was submitted that the

Tribunal, has erred in not considering the income of the

deceased in terms of the pleadings in the claim petition,

namely, the income to the tune of Rs.5,000/- to Rs.6,000/-

per month. It was submitted to that effect, the certificate of

Sarpanch was adduced on record. It was submitted

however, that the Tribunal, considering that the Sarpanch,

in the Year-2011, could not have issued a certificate in

respect of the income of the deceased in the Year-2001,

deemed such certificate as not reliable. It was submitted

that thereafter, taking a notional income of Rs.2,000/-, the

said compensation was computed. It was submitted that

the affidavit of examination-in-chief at Exhibit-44 of one

Triveniben Shyamgar Gusai may be considered. On perusal

of the cross-examination of the said deponent - Triveniben

Shyamgar Gusai, it would be clear that the even the

opponent no.3 - Insurance Company (present respondent

no.3) has admitted the income of the deceased at

Rs.5,000/- to Rs.6,000/- and has suggested that

sometimes, the applicant would even earn Rs. 4,000/- to

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Rs.5,000/-. Thus, it was submitted that even if the mean

of the aforesaid values i.e., from Rs.4,000/- to Rs.6,000/-,

is considered, the same would be to the tune of Rs.5,000/-.

It was submitted that such income may kindly be

considered for the purpose of enhancing the compensation

to the appellants. It was submitted that the Tribunal has

also erred in not granting any prospective income. It was

submitted that appropriate prospective income in terms of

the applicable law may kindly be awarded. Thereafter, he

has drawn attention of this Court that indeed the Tribunal

was right in considering the deduction of 1/4th income

and on this count there is no dispute. However, it was

submitted that the amounts awarded under the heads of

loss of estate, pain, shock and suffering and for funeral

expenses are abysmally low in as much as they are

respectively adjudged at Rs.15,000/-, Rs.15,000/- and Rs.

5,000/-. It was thus submitted that in line of the

contentions advanced, the compensation awarded to the

heirs of the deceased may kindly be awarded. It was

submitted that even the rate of interest awarded by the

Tribunal is at 7.5% per annum and that the same may

kindly be enhanced to 9% per annum more so, when the

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accident is of the year-2001 and the enhanced

compensation is being accessed after a period of

approximately 24 years.

6. The learned advocate for the respondent- Insurance

Company has vehemently opposed the present appeal. It

was submitted that the profession of vegetable vendor of

the deceased, as pleaded by the claimants, was an

eyewash. There is no evidence whatsoever that the said

deceased had any agricultural lands or that he was

growing such vegetables on such land. It was submitted

that merely asserting that vegetable vendor was doing such

business and had been earning preposterously high

amount, to the tune of Rs.5,000/- to Rs.6,000/- a month,

is not believable. It was submitted that even if the

minimum wages of the relevant period were taken into

consideration, then too, the monthly income of the

deceased would be to the tune of approximately

Rs.2,100/-. It was thus submitted that retaining a notional

income of Rs.2,000/- as assessed by the Tribunal, would

be appropriate in the facts of the present case. He has also

submitted that the other amounts as awarded by the

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Tribunal are just and proper and therefore, the judgment

of the Tribunal requires no interference and that the

present appeal may kindly be dismissed.

7. Having heard the learned advocates for the respective

parties, this Court proceeds to decide the present matter as

stated here in below.

8. The point of determination that the Court is required to

adjudicate in the present matter is as follows:

"Whether the compensation and the interest thereon, as awarded by the Tribunal is just and adequate? If not, what would be the just compensation that ought to be awarded in the present matter?"

9. Indeed, as per the pleadings in the said original claim

petition, the applicant was said to be earning Rs.5,000/- to

Rs.6,000/- per month. Now the said amount ought to have

been proved by the applicant. In this respect, the wife of

the deceased has entered the witness box and has deposed

and the affidavit of examination in chief at paragraph-10

indicates that the said income was to the tune of

Rs.5,000/- to Rs.6,000/- per month. The same was sought

to be substantiated by a certificate of the Sarpanch of

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Chandroda village. In this respect, this Court too, like the

Tribunal, believes that the certificate is not believable in as

much as there was no way the Sarpanch would have

maintained logs or records of income of the individuals in

his village, and therefore, in the year-2011, he could not

have opined on the income of the deceased for the year-

2001. Thus, the reasoning of the Tribunal in this respect is

correct. However, it appears that in the cross-examination,

the following response was elicited from the wife of the

deceased.

"...એ વાત ખરી નથી કે, મારા પતિ અકસ્માત વખતે રૂા. ૫૦૦૦/- થી ૬૦૦૦/- કમાતા ન હતા. એ વાત ખરી છે કે, મારા પતિ બિમાર હોય તો તેઓને તે દિવસે કોઈ આવક થતી નહી. એ વાત ખરી છે કે, કયારેક માસિક રૂા.૪૦૦૦/- થી ૫૦૦૦/- પણ આવક થાય..."

10. The closest English translation to the same is as follows:

"...It is not true that during the period corresponding to the accident, my husband was not earning Rs.5,000/- to Rs.6,000/-. It is true that if my husband were ill, on that day, he would not earn anything. It is true that sometimes the monthly income would even be to the tune of Rs.4,000/- to Rs.5,000/-..."

11. The aforesaid fact ought to be viewed with the fact that

the husband of the deponent used to sell the vegetables

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worth Rs.200 to Rs.300 and that the population of the said

village was only to the tune of 350 to 400 individuals. Now,

the objection as regards the profession of vegetable vendor

of the deceased being an eyewash as he does not have an

agricultural lands, is not sustainable. By no scale can it be

stated that only those persons having an agricultural lands

can engage in selling of vegetables. All in all, it appears

that there was a suggestion from the insurance company

that the income of the deceased could have been even to

the tune of Rs.4,000/- to Rs.5,000/-. However, this Court

is of the belief that the said cross-examination cannot be

taken on the face value and in the best case scenario, the

income of the deceased can be assessed to Rs.3,000/-.

This is for the reason that even the minimum wages, at

that point in time, were Rs.2,100/-. Merely because an

advocate of the insurance company has suggested out of

blue that the income could have been to Rs.4,000/- to

Rs.5,000/-, such suggestion could not be treated to be the

case of the insurance company. This Court is aware that

when a suggestion is made to the deponent, the said

suggestion is to be treated as the case of the other side.

However, in this case, this Court is not inclined to take

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that view for the simple reason that the advocate would not

have known as to what is the income of the deceased and

as such, the insurance company cannot be penalized for

the act of its panel advocate. Moreover, an accident cannot

result into windfall benefits to the heirs of the deceased.

Hence, taking the just income, this Court is of the view

that the income may be taken to be Rs. 3,000/- per month

of the deceased. In that view of the matter, prospective

income is to be computed. Now as the age of the deceased

was of more than 50 years, the proper percentage of

prospective income would be to the tune of 10%. This is so

stated in the case of Pranay Shethi. The relevant

observation of the concerned judgment is stated

hereinbelow.

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

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12. The aggregate income, therefore, will be Rs.3,000/- +

(Rs.3,000 X 0.1%) = Rs.3,300/-. And out of the aggregate of

the said income, the 1/4th amount is to be deducted

looking to the deceased having five dependents. Hence, the

monthly income would come to Rs.2,475/- (Rs.3,300 -

Rs.3,300/4). Thus, the future loss of income would be

Rs.2,475 X 12 X 13 = Rs.3,86,100/-.

13. Further, the consortium to the family would be to the

tune of Rs.2,42,000/- (Rs.48,400/- X 5). Indeed, the

applicants are 5, however, the 5 th applicant is a married

daughter. It may be noted that the argument of the learned

advocate for the Insurance Company was that the

consortium ought not to be given to the married daughter.

However, this Court is of the view that she has also lost her

father, and therefore, would be entitled to a consortium.

The loss of estate and funeral expenses be computed at the

tune of Rs.18,150/- each.

14. Accordingly the enhanced compensation will be computed

in the following manner.

                             Sr.No.                        Particulars                         Amount (in Rs.)
                            1           Future Loss of Income                                3,86,100/-





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                            2           Loss of consortium                                2,42,000/-

                            3           Loss of Estate                                    18,150/-
                            4           Loss of Funeral Expenses                          18,150/-


                                        Total                                             6,64,400/-
                                        Less:                                             3,39,200/-
                                        Already awarded by the Tribunal
                                        Amount enhanced and awarded by                    3,25,200/-
                                        this Court

15. The enhanced amount would be carried the interest at the

rate of 9%, because the family of the deceased has lost the

deceased in the Year-2001 and that the enhancement is

being received after a period of approximately 24 years.

Throughout that time, the loss suffered by the family would

have been met with by the family, by procuring amounts

from other sources, and therefore, it would be in the fitness

of things that the interest is awarded at the rate of 9% on

the enhanced amount.

16. The entire amount shall be disbursed forthwith without

creating any further FDRs.

17. The insurance company shall deposit the amount within a