Gujarat High Court
Damor Sumitraben Jayeshbhai vs Durgashankar Kaniram Shankar Deleted on 21 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2589 of 2021
With
R/FIRST APPEAL NO. 2526 of 2021
With
R/FIRST APPEAL NO. 2527 of 2021
With
R/FIRST APPEAL NO. 2590 of 2021
With
R/FIRST APPEAL NO. 2525 of 2021
With
R/FIRST APPEAL NO. 4060 of 2021
With
R/FIRST APPEAL NO. 2582 of 2020
With
R/FIRST APPEAL NO. 2646 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
DAMOR SUMITRABEN JAYESHBHAI
Versus
Page 1 of 14
Downloaded on : Wed Jul 27 20:24:07 IST 2022
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
DURGASHANKAR KANIRAM SHANKAR DELETED
==============================================================
Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 4.1,4.2,4.3,4.4
RULE UNSERVED for the Defendant(s) No. 2
===============================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/07/2022
ORAL JUDGMENT
1. All these appeals arise out of one and the same accident and hence, they are heard together and decided by this common judgment. Before the Tribunal, the original claimants had preferred separate claim petitions. The details of the same are reproduced herein below in a a tabular form:
Sr. Particulars of Particular of Compensation Compensation No. First Appeal M.A.C.P. claimed awarded 1 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 7,83,200/-
2589 of 2021 177 of 2017
2 First Appeal No. M.A.C.P. No. Rs.15 Lacs Rs. 9,16,400/-
2525 of 2021 178 of 2017
3 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs.10,17,200/-
2526 of 2021 181 of 2017
4 First Appeal No. M.A.C.P. No. Rs.10 Lacs Rs. 6,74,800/-
2527 of 2021 176 of 2017
5 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 9,16,400/-
Page 2 of 14
Downloaded on : Wed Jul 27 20:24:07 IST 2022
C/FA/2589/2021 JUDGMENT DATED: 21/07/2022
2590 of 2021 171 of 2017
6 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 8,76,400/-
2582 of 2020 172 of 2017
7 First Appeal No. M.A.C.P. No. Rs.12 Lacs Rs. 8,30,000/-
4060 of 2021 179 of 2017
2. Learned advocate Mr. Nishit Bhalodi appearing for the original claimants assailed the impugned judgment and orders passed in these appeals mainly on the aspect of quantum of compensation. He submitted that the Tribunal has seriously erred in assessing the monthly income of deceased. In the absence of any documentary proof having being produced by the claimants, the Tribunal ought to have assessed the monthly income at the wage rate fixed by the State Government at the relevant point of time. Further, the Tribunal has also erred in computing dependency benefit since the deduction towards personal expenditure of the deceased has not been done in accordance with the ratio laid down by the Apex Court. He further submitted that the Tribunal has not followed the judgment rendered by the Apex Court in the case of Magma General Insurance Page 3 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors.
reported in (2018) A.C.J. 2782 in its proper perspective while awarding compensation under the heads of loss of consortium, loss of estate and funeral expenses.
3. Learned advocate Mr. Rathin Raval for the respondent-Insurance Company submitted that the claimants have not produced any documentary evidence on record to prove the aspect of income of deceased and therefore, the Tribunal was justified in assessing the monthly income, as recorded in the impugned judgments and award. He further submitted that the compensation awarded under the other conventional heads is also just and reasonable and prayed that the same may not be interfered with. Accordingly, it was prayed to dismiss the appeals.
4. The facts on record suggests that in the early hours of 14.11.2017 an accident took place between a Tractor bearing registration No. GJ-20-TC-47 and a Truck bearing Page 4 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 registration No. RJ-27-GB-1848. In the said vehicular accident, seven persons who were travelling in the Tractor at the relevant time, including the driver, died on the spot while others sustained severe bodily injuries. The evidence on record suggested that the Truck in question had dashed the Tractor from its rear side and accordingly, the Tribunal assessed the negligence of the drivers of the Truck and Tractor in the ratio of 20 : 80. In the opinion of this Court, the contributory negligence assessed by the Tribunal is just and appropriate and does not require to be interfered with.
5. On the aspect of quantum of compensation, it appears that the claimants had not produced any documentary evidence on record to prove the income of the deceased. All the deceased were labourers and doing masonry work. When the claimants had not produced any material on record to prove the aspect of monthly income of the deceased, then the Tribunal ought to have assessed the monthly income on the basis of the prevailing minimum wages fixed by the State Government. The Page 5 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 Court is informed that Rs.7,500/- was the minimum monthly wages that were prevailing at the relevant time. Hence, this Court deems it appropriate to assess the monthly income of deceased at Rs.7,500/- in all these first appeals except First Appeal No.4060 of 2021. 5.1 In MACP No.179 of 2017, which is subject matter of First Appeal No.4060 of 2021, the claimants have stated that the monthly income of deceased was Rs.7,000/- at the relevant time and hence, for the purpose of deciding First Appeal No.4060 of 2021, the monthly income of deceased is assessed at Rs.7,000/- instead of Rs.7,500/-.
6. In view of the above, the claimants shall be entitled for the following amounts of compensation; 6.1 In First Appeal No.2589 of 2021 : The monthly income of deceased could be assessed at Rs.7,500/-. By adding 40% rise in prospective income in view of the judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC Page 6 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 5157, the monthly income would come to Rs.10,500/- and after deducting 1/4th towards personal expenses, the income would come to Rs.7,875/- per month and Rs.94,500/- annually; and by adopting a multiplier of 18, the total prospective income would come to Rs.17,01,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.1,60,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.18,91,000/-. The Tribunal has already awarded Rs.7,83,200/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.11,07,800/-.
6.2 In First Appeal No.2526 of 2021 : The monthly income of deceased could be assessed at Rs.7,500/-. By adding 40% rise in prospective income in view of the judgment rendered in the case of National Insurance Page 7 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.10,500/- and after deducting 1/4th towards personal expenses, the income would come to Rs.7,875/- per month and Rs.94,500/- annually; and by adopting a multiplier of 18, the total prospective income would come to Rs.17,01,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.1,60,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.18,91,000/-. The Tribunal has already awarded Rs.10,17,200/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.8,73,800/-.
6.3 In First Appeal No.2527 of 2021 : The monthly income of deceased could be assessed at Rs.7,500/-. By adding 40% rise in prospective income in view of the Page 8 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.10,500/- and after deducting 1/2 towards personal expenses, the income would come to Rs.5,250/- per month and by adopting a multiplier of 18, the total prospective income would come to Rs.11,34,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.80,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.12,44,000/-. The Tribunal has already awarded Rs.6,74,800/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.5,69,200/-. 6.4 In First Appeal No.2590 of 2021 : The monthly income of deceased could be assessed at Rs.7,500/-. By adding 40% rise in prospective income in view of the Page 9 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.10,500/- and after deducting 1/4th towards personal expenses, the income would come to Rs.7,875/- per month and Rs.94,500/- annually and by adopting a multiplier of 16, the total prospective income would come to Rs.15,12,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.2,00,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.17,42,000/-. The Tribunal has already awarded Rs.9,16,400/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.8,25,600/-.
6.5 In First Appeal No.2525 of 2021 : The monthly income of deceased could be assessed at Rs.7,500/-. By Page 10 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 adding 40% rise in prospective income in view of the judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.10,500/- and after deducting 1/4th towards personal expenses, the income would come to Rs.7,875/- per month and Rs.94,500/- annually; and by adopting a multiplier of 16, the total prospective income would come to Rs.15,12,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.1,60,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.17,02,000/-. The Tribunal has already awarded Rs.9,16,400/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.7,85,600/-.
6.6 In First Appeal No.4060 of 2021 : The monthly Page 11 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 income of deceased could be assessed at Rs.7,000/-. By adding 25% rise in prospective income in view of the judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.8,750/- and after deducting 1/4th towards personal expenses, the income would come to Rs.6,563/- per month and by adopting a multiplier of 15, the total prospective income would come to Rs.11,81,340/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.2,00,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.14,11,340/-. The Tribunal has already awarded Rs.8,30,000/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.5,81,340/-. 6.7 In First Appeal No.2582 of 2020 : The monthly Page 12 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 income of deceased could be assessed at Rs.7,500/-. By adding 40% rise in prospective income in view of the judgment rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157, the monthly income would come to Rs.10,500/- and after deducting 1/4th towards personal expenses, the income would come to Rs.7,875/- per month and by adopting a multiplier of 16, the total prospective income would come to Rs.15,12,000/-. The claimants would be entitled for Rs.15,000/- each under the heads of funeral expenses and loss of estate respectively; and Rs.2,00,000/- under the head of loss of consortium in view of the judgment in the case of Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) A.C.J. 2782. Thus, in all, the claimants would be entitled for Rs.17,42,000/-. The Tribunal has already awarded Rs.9,16,400/- as compensation and thus, the claimants would be entitled for enhanced compensation of Rs.8,25,600/-.
7. Insofar as the rate of interest awarded by the Page 13 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022 C/FA/2589/2021 JUDGMENT DATED: 21/07/2022 Tribunal in each of the claim petitions is concerned, it is clarified that the claimants shall be entitled for interest at the rate awarded by the Tribunal on the amounts of compensation already awarded by it; whereas, on the enhanced amount of compensation, the claimants shall be entitled for interest at the rate of 7.5% per annum. Except F.A. No.2646 of 2020, all the appeals are partly allowed to the above extent and the impugned judgment and awards stand modified accordingly. No order as to costs. First Appeal No.2646 of 2020 arising out of the same accident, is the injury claim, be listed in fourth week of August 2022.
(GITA GOPI, J) PRAVIN KARUNAN Page 14 of 14 Downloaded on : Wed Jul 27 20:24:07 IST 2022