Gujarat High Court
Bharatbhai Chandulal Patel vs Babubhai Rupsing on 18 September, 2024
NEUTRAL CITATION
C/FA/2447/2015 JUDGMENT DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2447 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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BHARATBHAI CHANDULAL PATEL & ORS.
Versus
BABUBHAI RUPSING & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s
- original claimant/s - legal heirs of the deceased - Naynaben Bharatbhai Patel being aggrieved and Page 1 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined dissatisfied with the judgment and award dated 13.03.2014 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.533 of 2003, by which the Tribunal has awarded compensation of Rs.4,39,565/- with 9% per annum interest to the claimant/s, holding opponents liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 02.11.2002, the applicants with his family members and other relatives were travelling in the Tata Sumo bearing No.GJ-1-AR-6600 of opponent no.1 for tour of Maharashtra state. When they came from Goa, Mahabaleshwar Puna and through Lonawala, on 09.11.2002, at about 1.30 pm. They started for Matheran and around 2.00 pm., when they passed across the territory of Rasayani Police Station, suddenly front tyre of the Tata sumo vehicle was busted and the said vehicle was gone out of control of the driver and on applying breaks the said vehicle was turned into turtle.
As a result of which, wife of the Bharatbhai and other relatives sustained injuries more particularly wife of Bharatbhai, Smt. Naynaben got serious injuries and she was shifted to Sayan Hospital where she died. On account of the sole negligence of the opponent nos.2 and Page 2 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined 3, the said accident has taken place in which wife of Bharatbhai Chandulal Patel died and other applicants of the other claim petitions suffered injuries as described in the respective claim petitions. Hence, present claim petition has been preferred.
2.2 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.3 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant/s for enhancement.
3. Learned advocate the appellant/s - claimant/s has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like prospective income of the deceased, loss of consortium, funeral expenses and loss of estate, and family circumstances, etc. It is submitted that the Tribunal has rightly considered the monthly income of the deceased Rs.3,000/- after considering the material available on the record and taking into account the Page 3 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined nature of work of the deceased, as well as minimum wages prevailed at the relevant point of time. It is further submitted that looking to the age of the deceased and keeping in view the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, 25% income should be added towards prospective income of the deceased. It is also submitted that the Tribunal has committed an error by awarding meager compensation under the head of loss of estate and funeral expenses, which should be more in view of decisions of Hon'ble Apex Court in the case of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130
(ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. It is further submitted that the deceased was married and therefore, he has left the dependents in the family behind him. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of consortium. It is submitted that in view of the above-mentioned award, no amount is required to be awarded towards medical expenses. It is submitted that under other heads except above, the Tribunal has rightly Page 4 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined considered the amount of compensation. It is submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocate for contesting respondent No.3 - insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased. It is also submitted that under the head of loss of estate and funeral expenses, the Tribunal has rightly awarded compensation. It is also submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. However, from the submissions made by learned advocate for the appellant/s that the Tribunal has committed certain errors, on this aspect, learned advocates for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order, in the interest of justice. It is submitted that this appeal may be dismissed and no interference be made by this Court.
5. It is noteworthy to mention that the provisions of Page 5 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimant/s. At the outset, I have considering the decision cited at the bar by learned advocate for the appellant. The judgments cited at the bar by learned advocate for the appellant is helpful to the facts of the present case.
6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is noted that the claimant has by and large claimed enhancement towards income of the deceased, prospective income of the deceased, loss of consortium, funeral expenses and loss of estate, and family circumstances, etc. It transpires that the Tribunal has rightly considered the monthly income of the deceased Rs.3,000/- after considering the Page 6 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined material available on the record and taking into account the nature of work of the deceased, as well as minimum wages prevailed at the relevant point of time. Otherwise also, the same is not disputed by learned advocate for the appellants. Furthermore, looking to the age of the deceased at the time of accident, i.e. 42 years and considering the decision of the Hon'ble Apex Court in the case of Pranay Shethi (supra), 25% rise should be added as prospective income. Therefore, it would come to Rs.3,750/- per month income of the deceased. Further, considering the decision of Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Shethi (supra), 1/3 would be the deduction towards personal expense, which is rightly considered by the Tribunal. Therefore, it would come to Rs.2,500/- per month multiplied by 12 months (annual income) and further multiplied by 14 multiplier keeping in view the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), it would come to Rs.4,20,000/- as loss of dependency benefits, which should be awarded by the Tribunal.
6.2 Further, under the head of loss of consortium, the Tribunal has awarded Rs.20,000/- only, which should be on higher side. It is not in dispute that there are three dependents in the family. In view of the decisions of Hon'ble Apex Court in the cases of : (i) Magma General Page 7 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, under the head of loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%) would be proper to award, therefore, Rs.48,400/- x 3 dependents = Rs.1,45,200/- would be the compensation under the head of loss of consortium.
6.3 Further, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, would be the just and proper compensation, considering the decisions of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra) . Furthermore, under other heads except the above, the amount awarded by the Tribunal is not disputed by learned advocate for the appellant/s, otherwise also, the Tribunal has rightly considered the amount under those heads. Furthermore, considering the submission made by learned advocate for the appellants, no amount is required to be awarded towards medical expenses.
6.4 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Page 8 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined Particulars Amount (Rs.) Loss of dependency benefits 4,20,000/- Loss of estate 18,150/- Funeral expenses 18,150/- Loss of consortium 1,45,200/- Total... 6,01,500/- Less : Amount which is 4,39,565/- already awarded Additional amount which is 1,61,935/- awarded
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.6,01,500/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal shall remain same. The Tribunal has already awarded Rs.4,39,565/- and, therefore, remaining amount of Rs.1,61,935/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order Page 9 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024 NEUTRAL CITATION C/FA/2447/2015 JUDGMENT DATED: 18/09/2024 undefined is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 13.03.2014 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.533 of 2003 is modified to the aforesaid extent.
8.3 The respondent - Insurance Company is directed to deposit the enhanced amount Rs.1,61,935/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
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(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 11 of 11 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Sep 23 2024 Downloaded on : Mon Sep 23 20:42:01 IST 2024