Gujarat High Court
Harshaben @ Manjulaben Himatbhai ... vs Dineshbhai M Tejani on 13 September, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2267/2019 JUDGMENT DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2267 of 2019
With
R/FIRST APPEAL NO. 2268 of 2019
With
R/FIRST APPEAL NO. 2269 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARSHABEN @ MANJULABEN HIMATBHAI JOGADIA & 3 other(s)
Versus
DINESHBHAI M TEJANI & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/09/2023
COMMON ORAL JUDGMENT
1. All the appeals arise out of the common judgment and award dated 21.9.2013 passed by Page 1 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined the MACT (Aux), Rajula in MACP nos.701/2011, 702/2011 and 703/2011 which were initially instituted as 191/2009, 192/2009 and 193/2009 respectively. All the appellants are the claimants. First Appeals no.2267/2019 and 2269/2019 are filed by the heirs of the deceased, while First Appeal no.2268/2019 is filed by the injured-claimant.
2. The principal ground raised is with the contention that the learned Tribunal has committed an error in exonerating the respondent - insurance company on the ground that the deceased as well as the injured- claimant were traveling as gratuitous passengers in an auto rickshaw while the fact on record suggests that the insurance company which is exonerated is not of auto rickshaw but of Toras truck driver bearing registration no. GJ-5 AT-2311 and the learned Tribunal has attributed negligence of the Toras truck driver of 70%.
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3. Another ground inter-alia raised is towards assessment of income and the prospective rise and also towards the amount deducted under the head of personal expenses and also challenge is given to the consortium loss which has not been granted.
4. Mr. Dhomse, learned advocate for the claimants submits that the rickshaw was goods rickshaw and the deceased and the injured-claimant were traveling as passengers along with labour articles and Panchnama of the scene of incident reflects the shoes, slippers, bowls and cups and they were traveling as owner of the goods. Mr. Dhomse further stated that the learned Tribunal had considered 30% negligence of the rickshaw driver and 70% of the Toras truck driver and inspite of noting the negligence of the Toras truck driver, the insurance company of the truck came to be exonerated observing that the deceased and the Page 3 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined injured-claimant were traveling as gratuitous passengers in the rickshaw. Mr. Dhomse submits that such strange observation has almost denied justice to the claimants as there was no ground to exonerate the insurance company of the truck.
4.1 Mr. Dhomse further stated that the income was required to be assessed as per the minimum wages schedule as the deceased and the injured-claimant were labourers and that fact was proved who were traveling with the goods in the goods rickshaw with labour articles which is reflected in the FIR as well as Panchnama. Mr. Dhomse further stated that the consortium amount is required to be granted as per the decision in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130 to the dependents of the deceased and prospective rise in income was also required to be considered.
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5. While countering the arguments, Advocate Ms. Masumi Nanavati submits that since the goods rickshaw is not insured, the appeals have been filed and submits that the amount which has been granted is just and proper.
6. The learned Judge has erroneously placed reliance on the judgment in the case of National Insurance Company Ltd. v. Prema Devi & Ors., reported in II 2008 ACC 1 (SC) and has considered that the insurance company would not be liable to indemnify the gratuitous passenger in the goods carriage. The learned Tribunal has failed to appreciate that those gratuitous passengers were not in the vehicle which was the truck, but were traveling as in the goods rickshaw. Those labourers were not gratuitous passengers in the goods rickshaw since they were traveling as owner of the goods. The fact of those labourers traveling in the rickshaw would not affect the liability Page 5 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined of paying the compensation to the extent of negligence attributed to the truck driver. It appears that the learned Judge has misinterpreted the judgment relied upon.
7. In view of the fact and since 70% negligence is attributed to the truck driver, the insurance company of the truck bearing registration no. GJ-5 AT-2311 i.e. present respondent no.2 would be liable to pay the compensation to the extent of 70%, while 30% could be recovered from the owner and driver of the goods rickshaw.
8. In view of the above, the order of exonerating the insurance company is quashed and set aside.
9. In the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, it has been observed as under:-
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NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined "8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979) Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training." Filial consortium is the right of the parents to compensation in the Page 7 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."
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10. First Appeal no.2267/2019 arises out of MACP no.701/2011. The learned Tribunal has considered the income of the deceased as Rs.2,100/-. The date of accident is dated 11.4.1999. Keeping in mind the minimum wages schedule, income of the deceased was required to be considered as Rs.3,860/-. The age of the deceased has been believed to be 28 years and was mason and agricultural labourer, 40% rise of prospective rise in income is required to be considered and accordingly, monthly income would come to Rs.5,404/- (Rs.3,860/- + Rs.1,544/-). Annual income accordingly assessed would be considered as Rs.64,848/-. There are about 4 dependents and hence, one- fourth amount is deducted towards personal expenses. So the annual dependency would come to Rs.48,636/- (Rs.64,848/- - Rs.16,212/-). Multiplier applicable would be 17 and thus, the dependency loss would come to Rs.8,26,812/-.
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NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined 10.1 The dependents are widow and 3 minors and hence, under the head of consortium loss each would be entitled for Rs.40,000/- and hence, under the head of loss of consortium, an amount of Rs.1,60,000/- is granted. 10.2 As per the decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses are granted and thus, the computation of income would be as under:-
Loss of dependency Rs.8,26,812/- Consortium loss + Rs.1,60,000/-
Loss of estate + Rs. 15,000/-
Funeral expenses + Rs. 15,000/-
Total compensation = Rs.10,16,812/-
10.3 The Tribunal has awarded compensation of
Rs.3,27,400/- and hence, the enhanced amount comes to Rs.6,89,412/-. The liability of the insurance Company of the truck is considered Page 10 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined as 70%.
11. First Appeal no.2269 of 2019 is arising out of MACP no.703/2011. The Tribunal has considered the income of the deceased as Rs.2,100/-. Keeping in mind the minimum wages schedule, income of the deceased was required to be considered as Rs.3,860/-. The age of the deceased has been believed to be 22 years. Annual income accordingly assessed would be considered as Rs.46,320/-. 40% rise of prospective rise in income is required to be considered and accordingly, income would come to Rs.64,848/- (Rs.46,320/- + Rs.18,528/-). There are about 5 dependents and hence, one- fourth amount is deducted towards personal expenses. So the annual dependency would come to Rs.48,636/- (Rs.64,848/- - Rs.16,212/-). Multiplier applicable would be 18 and thus, the dependency loss would come to Rs.8,75,448/-.
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NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined 11.1 The dependents are widow, two minors and parents and thus, each would be entitled to Rs.40,000/-. Thus, in under the head of loss of consortium, an amount of Rs.2,00,000/- is granted. As per the decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses are granted and thus, the computation of income would be as under:-
Loss of dependency Rs.8,75,448/- Consortium loss + Rs.2,00,000/-
Loss of estate + Rs. 15,000/-
Funeral expenses + Rs. 15,000/-
Total compensation = Rs.11,05,448/-
11.2 The Tribunal has awarded Rs.3,10,600/- and
hence, the enhanced amount comes to
Rs.7,94,848/-. The liability of the insurance Company of the truck is considered as 70%.
12. First Appeal no.2268 of 2019 is arising out of Page 12 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined MACP no.702/2011. The income of the injured- claimant has been considered at Rs.2,100/-. Considering the minimum wages schedule, he would be entitled to Rs.3,860/- and the yearly income would come to Rs.46,320/-. 5% functional disability is assessed and thus, annual loss of income would come to Rs.2,316/-. Applying multiplier of 18, since the age of the injured was 19 years at the time of the accident, the amount would come to Rs.41,688/-. Actual loss of income is assessed for 2 months is assessed at Rs.7,720/-. Under the head of pain, shock and suffering, the learned Tribunal has granted Rs.5,000/-, which is just and reasonable. Medical expenses of Rs.2,880/- has been assessed while for special diet, transport and attendance charges, Rs.5,000/- has been granted which would be considered as just and proper. Thus, the computation would be as under:- Page 13 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023
NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined Future loss of income Rs.41,688/- Actual loss of income + Rs. 7,720/- Pain, shock and suffering + Rs. 5,000/- Special diet, attendant and + Rs. 5,000/- transportation Medical expenses + Rs. 2,880/- Total compensation = Rs.62,288/- 12.1 The Tribunal has awarded Rs.35,140/- and hence, the enhanced amount comes to Rs.27,148/-. The liability of the insurance Company of the truck is considered as 70%.
13. As per the record, there has been a delay of 936 days in filing the appeal to challenge the judgment and award which would be appropriate to just consideration. The insurance company is exempted to pay the interest on the compensation amount for the delayed period of 936 days.
14. The total compensation amount be deposited within 12 weeks by the Insurance Company from the date of receipt of writ of this Court. The Page 14 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined compensation granted by the Tribunal would be deposited with interest at the rate of 9% per annum, while the interest applicable on the enhanced amount is 7.5% per annum. The insurance company is permitted to recover 30% of the compensation amount from the owner and driver of the auto rickshaw in accordance to the proposition laid down in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors., reported in (2015) 9 SCC 273, wherein it has been held as under:-
"22. What emerges from the aforesaid discussion is as follows :
22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
22.2 In the case of composite
negligence, apportionment of
compensation between two tort
feasors vis a vis the
plaintiff/claimant is not
permissible. He can recover at his Page 15 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined option whole damages from any of them.
22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
15. The impugned judgment and award be modified Page 16 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023 NEUTRAL CITATION C/FA/2267/2019 JUDGMENT DATED: 13/09/2023 undefined accordingly. The appeals are partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 17 of 17 Downloaded on : Mon Sep 18 20:37:00 IST 2023