Gujarat High Court
Lakhpatsinh Ramsinh Jadeja vs Azarudin Sabirayub on 8 February, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/5105/2019 JUDGMENT DATED: 08/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5105 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial questionNo
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LAKHPATSINH RAMSINH JADEJA
Versus
AZARUDIN SABIRAYUB
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Appearance:
MR KAASH THAKKAR, ADVOCATE for
TATVDEEP J JANI(7227) for the Appellant(s) No. 1,2,3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 4
NOTICE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/02/2022
ORAL JUDGMENT
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C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Being aggrieved and dissatisfied by the impugned judgment and award dated 30.04.2019 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in MACP No. 384 of 2012, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act (herein after referred to as the 'Act')
2. The following facts emerge from the record of the appeal :
2.2 The deceased was young boy aged 22 years old and was studying in B.Tech course at Engineering College in Udaipur.
The facts indicate that on 14.06.2012 at about 11:00 p.m., the deceased was driving his motorcycle bearing registration No. GJ-3-DJ-5252 and his friend was the pillion rider and when they reached near Debari Chorah Pratabnagar Thana, on that unfortunate moment, the driver of the truck bearing registration No. HR-55-N-2665 came from the other side and dashed with the motorcycle and also ran over the body of the deceased. The FIR was lodged with the Police Station in Rajasthan at Exh. 48. The father of the deceased - appellant No.2 was examined at Exh. 43 and the claimants also relied upon the documentary evidence i.e. FIR at Exh. 48, Panchnama at Exh. 50, Post-mortem report at Exh. 52, licence of the deceased at Exh. 59. It was the case of the claimants that the accident occurred because of the sole negligence of the driver of the truck. It was further the case of the appellants- original claimants that the deceased was studying and also doing job of site supervisor and earning Rs. 25,000/- per month.
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3. The Tribunal assessed the income of the deceased at Rs. 3,000/- per month and following the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680, the Tribunal awarded the prospective income to the extent of 40% and after deducting 1/2 towards personal expenses, as the deceased was bachelor, applied multiplier of 18 and awarded Rs. 4,83,600/-. Over and above the same, the Tribunal also awarded Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses and thus partly allowed the claim petition and awarded total compensation of Rs. 4,83,600/- with 9% interest. While partly allowing the claim petition, the Tribunal was pleased to exonerate the Insurance Company of the Motorcycle.
4. Being aggrieved by the same, the present appeal is filed by the original claimants.
5. Heard Mr. Kaash Thakkar for Mr. Tatvdeep Jani, learned advocate appearing for the original appellants, Mr. Rahul Dholakia, learned advocate for respondent No.3- Insurance Company of the Truck and Mr. Vibhuti Nanavati, learned advocate for the respondent No.5 - the Insurance Company of the Motorcycle. Though respondent Nos. 2 & 4 were served, none appears on their behalf. The presence of other respondents are not necessary to decide the appeal as the Insurance Company does not deny the liability. We have also perused the record and proceedings of the Tribunal.
6. Mr. Kaash Thakkar, learned advocate for the original appellants has contended that the Tribunal has erred in Page 3 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022 C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 determining the income of the deceased Rs. 3,000/-. Learned advocate for the appellants has contended that the deceased was only aged about 22 yrs. and had bright future and contended that the deceased was studying in the Engineering College that too a reputed institution in Udaipur. Learned advocate for the appellants referring and relying upon the deposition of one of the claimants at Exh. 43, contended that the said witness has deposed before the Tribunal that while studying, the deceased was working as site supervisor and earning Rs. 20,000/-. According to the learned advocate for the appellants the income of the deceased could have been assessed at Rs. 20,000/- per month. Mr. Thakkar, learned advocate for the appellants has relied on the recent judgment of the Hon'ble Apex Court being Civil Application No. 6724 of 2021 in the case of Smt. Meena Pawaia and others Vs. Ashraf Ali and others to buttress his argument.
7. Learned advocate for the appellants also contended that out of the claimants, appellant No.1 and 2 are parents and therefore they would be entitled to filial consortium of Rs. 40,000/- each, which were not considered by the Tribunal. On the aforesaid grounds, it was contended by the learned advocate for the appellants that the impugned judgment and award deserves to be modified by allowing the appeal as prayed for.
8. Per contra, Mr. Rahul Dholakia, learned advocate appearing for the respondent No.3 - Insurance Company has opposed this appeal and has contended that in absence of any evidence, only because the deceased was studying in B.tech course at Udaipur, it can not be said that the Tribunal has Page 4 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022 C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 committed any error in determining the income of the deceased at Rs. 3,000/- per month, more particularly considering the fact that the accident took place on 14.06.2012. It was contended that the Tribunal has awarded just and adequate compensation and submitted that the present appeal is meritless and deserves to be dismissed.
9. Mr. Vibhuti Nanavati, learned advocate appearing for respondent No.5 - Insurance Company has submitted that this Court may pass appropriate order as the respondent No. 5 - Insurance Company has already been exonerated and no contention are raised in the appeal against respondent No.5.
10. No other and further submissions, contentions or grounds have been raised by the learned advocates appearing for the respective parties.
11. Upon hearing the learned advocates for the respective parties and on perusal of the original records and proceedings, the following questions arise for determination in this appeal.
(i) whether the Tribunal has committed any error in determining the income of the deceased of Rs. 3,000/- per month.
(ii) whether the appellants No. 1 & 2 as parents would be entitled to filial consortium or not.
12. In order to examine the first point raised in the appeal, it would be appropriate to refer to in the FIR at Exh. 48. On bare reading of the said FIR, it clearly indicates that the deceased was pursuing his studies of B.Tch course in an institution at Page 5 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022 C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 Udaipur. The same clearly establishes the fact that the deceased was a bright student who got admission in B.tech course in a reputed institution in Udaipur and his future could have been quite bright. We find that the Tribunal having appreciated the evidence on record has found that except the bare words of one of the claimants at exh. 43, no evidence is on record. The Tribunal has also rightly appreciated the cross examination of the said witness wherein he has categorically admitted that he has not produced any kind of proof with regard the income of the deceased. The question therefore which arises for our consideration as to whether the dictum figure of Rs. 3,000/- is proper income or not.
13. Considering the bright future of the deceased who was just 22 yrs. old, the income of Rs. 3,000/- is very less. It would be apt to refer to the recent judgment of the Hon'ble Apex Court in the case of Smt. Meena Pawaia (supra), wherein while considering similar set of circumstances wherein the deceased was aged about 21-22 yrs. student in Civil Engineering like the case on hand, the Hon'ble Apex Court even in absence of any evidence, considering the bright future of the deceased has determined the income of the deceased at Rs. 10,000/-. The Apex Court has thus observed in Para-8, which reads as under:
"8. At the outset, it is required to be noted that deceased at the time of accident was aged 21-22 years and that he was a 3 rd year student in civil engineering. Therefore, it can be said that looking to his educational qualification he was having a bright future. Learned Tribunal assessed the income of deceased at Rs.15,000/- per month for the purpose of awarding compensation under the head of future economic loss. However, by the impugned judgment and order, the High Court has reduced the compensation and determined the income of the deceased at Rs.5,000/- per month. Awarding the future economic loss to the claimants considering the income of the deceased as Rs.5,000/- is not sustainable at all. Even the labourers/skilled labourers were getting Rs.5,000/- per month under the Minimum Wages Act in the year 2012. As the deceased was studying in the 3rd/ Page 6 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022 C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 4th semester of civil engineering, he cannot be considered worse than the labourers/skilled labourers. Even the counsel appearing on behalf of the Union of India has fairly conceded that assessing the income of deceased at Rs.5,000/- per month for the purpose of awarding the compensation under the head of future economic loss can be said to be at lower side and as such is not justifiable. While awarding the future economical loss, when the deceased died at the young age 21-22 years and was not earning at the time of death/accident, as per catena of decisions of this court, the income for the purpose of determining the future economic loss is always done on the basis of guesswork considering many circumstances namely the educational qualification and background of the family, etc. Therefore looking to the educational qualification and the family background and as observed herein above, the deceased was having a bright future studying in the 3rd year of civil engineering, we are of the opinion that the income of the deceased at least ought to have been considered at least Rs.10,000/- per month, more particularly considering the fact that the labourers/skilled labourers were getting Rs.5,000/- per month even under the Minimum Wages Act in the year 2012."
14. Similar set of circumstances exists in the case on hand. By determining Rs. 3,000/- per month, the same would mean that the deceased would be earning Rs. 100/- per day, which is much less than even the minimum wages standard of skilled worker as observed by the Hon'ble Apex Court. Following the judgment of the Hon'ble Apex court in the case of Smt. Meena Pawaia (supra) and even considering the deposition of the witness at Exh. 43, we deem it appropriate to determine the income of the deceased at Rs. 10,000/-, more particularly considering the bright future as well as the academic excellence of the deceased,
15. Applying the ratio in the cases of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 and United India Insurance Company Limited Vs. Satinder Kaur alias Satwinder Kaur and others, AIR 2020 SC 3076, the appellant would be entitled to Rs. 40% prospective income and on the income so determined, Page 7 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022 C/FA/5105/2019 JUDGMENT DATED: 08/02/2022 1/2 will have to be deducted towards personal expenses of the deceased as he was major and the appropriate multiplier would be of 18.
16. Having come to the aforesaid conclusion, the appellants would be entitled to compensation under the head of future loss of income as under:
Rs. 10,000/- per month + 40% =Rs. 14,000/- - 7000/- x 12 =Rs. 84,000/- x 18 =Rs. 15,12,000/-
Rs. 10,000/- (income p.m.) + Rs. 4,000/- (40% prospective income) - Rs. 7,000/- (1/2 deduction towards personal expenses) X 12 X 18 (multiplier) Over and above of the same, following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra) and Satinder Kaur (supra), the appellant No.1, who is father and appellant No.2 who is mother, would be entitled to filial consortium of 40% and in addition to the same, the appellants would be entitled to compensation of Rs. 15,000/- under the head of loss of estate and Rs. 15,000/- as funeral expenses. Thus, the appellants would be entitled to the total compensation as under:
future loss of income i.e. 15,12,000/-
80,000 clear consortium (40x2) 80,000/-
15,000/- loss of estate & 15,000/-
15,000/- funeral expenses 15,000/-
16,22,000/-
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C/FA/5105/2019 JUDGMENT DATED: 08/02/2022
17. As the Tribunal has granted Rs. 4,83,600/- the appellants would be entitled an additional amount of compensation of Rs.
11,38,400/-.
18. However, considering the fact that the accident is of the year 2012, the appellants would be entitled to interest at the rate of 6% of such additional amount from the date of fling of the claim petition till its realization.
19. The respondent No.3 - Insurance Company is directed to deposit the additional amount of Rs. 11,38,400/- with 6% interest from the date of fling of the claim petition till its realization with proportionate cost with the Tribunal within an outer limit of eight weeks from of the date of receipt of this judgment and order of this Court.
20. The Tribunal is directed to remit the same as per the award through RTGS in the account of the appellants- original claimants after obtaining bank details from the appellants- original claimants.
Record and Proceedings be sent back to the concerned Tribunal forthwith.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) Salim/ Page 9 of 9 Downloaded on : Sun Apr 24 12:16:52 IST 2022