Gujarat High Court
Lalabhai Becharbhai Kahar vs Surendrakumar Narednrakumar Mittal on 14 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3531/2014 JUDGMENT DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3531 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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LALABHAI BECHARBHAI KAHAR & 2 other(s)
Versus
SURENDRAKUMAR NAREDNRAKUMAR MITTAL & 1 other(s)
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3
MR R G DWIVEDI(6601) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/02/2024
ORAL JUDGMENT
1. The original claim petition as M.A.C.P. No.885 of 1996 was filed by the widow - Ratanben Page 1 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined Becharbhai Kahar of deceased - Becharbhai Bhattibhai Kahar and elder son - Lalabhai Becharbhai Kahar. During the pendency of the claim petition, widow - Ratanben Becharbhai Kahar died on 11.06.1997. Thereafter an application was moved at Exh.20 informing the Tribunal that the claimant no.1 died, leaving behind three sons, since other three sons and daughters were pre- deceased. Hence, Lalabhai Becharbhai Kahar, Manubhai Becharbhai Kahar and Santosh Becharbhai Kahar were impleaded as applicants on the death of mother.
2. The Tribunal partly allowing the claim petition granted amount of Rs.30,020/-, observing that claimant no.1 - Lalabhai Becharbhai Kahar would have incurred expenses for medicine and transportation on the death, who was staying with the parents, and, thus, under the head of love and affection, funeral expenses, after death ritual ceremony, loss to estate and towards Page 2 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined transportation and attendance charges, granted Rs.5,000/- under each head, while, medical bills of Rs.8,020/- was allowed, and Rs.2,000/- towards diet, and in all total compensation was granted as Rs.30,020/-.
3. Advocate Mr. Mohsin M.Hakim for the appellants submitted that it is not a case, where the injured claimant died during the pendency of the trial. While in the present case on the death of the husband, the widow and the elder son, who was staying with the parents, had filed the claim petition. Thereafter, all the claimants were joined as heirs and legal representatives of deceased mother - Ratanben Becharbhai Kahar. Mr. Hakim submitted that the right of the widow stands crystallized on the date of filing of the claim petition, and thereafter on death of the mother, all the applicants have been joined as legal representatives.
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4. While, Advocate Mr.R.G. Dwivedi submitted that the sons as not the dependents of the father, so after his death, in claim petition moved by the widow, sons could even claim as a legal representative of the deceased mother, since they would not have primary right to even make prayer for compensation on the death of the father, and, thus stated that the Tribunal has rightly considered the amount which the elder son had expended after the death of the father.
5. The Tribunal had considered the fact on record, that the accident occurred on 13.04.1993. The FIR was filed on 15.04.2019, and after about 10 months, the claim petition came to be filed on 14.02.1993, while the deceased father died on 21.10.1993, and in that facts and circumstances of the case, the Tribunal had posed a question to consider the nexus between accidental injuries and the cause of death.
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NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 5.1 Relying on the cross examination of Doctor Shailesh Parikh, the learned Tribunal concluded that the nexus between the cause of death and accidental injuries could be proved.
6. This Court has no reason to upset the finding of the Tribunal; however, it requires to be mentioned here that the claim petition was filed after the death of the deceased on 14.02.1994, hence, it is not a case, that the petition was filed by injured claimant, who subsequently died during the course of the trial.
7. As per the facts of the case, on 13.04.1993, Becharbhai, at 9:30 a.m., was going at his business place situated near the gate of Maharani Nursing Home for running his Sugarcane Juice Shop. He had approached the business place after crossing the Zebra Crossing and had reached near the divider, at that time, from the northern side of railway quarter, the opponent no.1 - Page 5 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024
NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined driver of the Scooter No.Up-80-A-4646 came driving the vehicle in rash and negligent manner and dashed the deceased. As a result, the deceased was thrown away and got dragged to some distance, ultimately resulting fracture in thigh. The Tribunal on consideration of the evidence concluded the sole negligence of the opponent no.1 scooter.
8. The facts and the evidence by son Lalabhai, examined at Exh.24, suggests that after sustaining fracture injury on right thigh, over and above, bodily injuries, the deceased was shifted to Doctor Shailesh Parikh Hospital, where he was operated upon the fracture, and trochanter and bars were inserted requiring screw. He had remained indoor patient from 13.04.1993 to 03.05.1993, and confined to bed for about six months, as was advised by Doctor on discharge from the Hospital.
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NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 8.1 The evidence was to the effect that due to deficiency of sufficient nutrition and nourishment, his health deteriorated and other bodily complications developed. The treatment continued with orthopedic surgeon and physician. The physiotherapy treatment was given. The last three months prior to his death was on liquid and was unable to move freely.
8.2 Doctor Shailesh Parikh was examined at Exh.43, who had treated the injured Becharbhai. The Doctor had assessed the disability and had also deposed that the injured was confined to bed for a considerable period, and because of that, he had suffered from Decubitus ulcer i.e. bedsore as well as Enema, Pellagra (deficiency of vitamin) and Hypoproteinaemia (deficiency of Protein), and because of deficiency in immunity power, the infection occurred. It was concluded by the Tribunal that because of the accidental injury, the injured suffered from the disease, Page 7 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined and till his death he was in such condition, which could not bring any recovery, thus, the nexus between the accidental injury and the cause of death was proved.
8.3 It is pertinent to note that thereafter on his death, on 21.10.1993, the claim petition was filed on 14.02.1994 by the widow and the son.
9. In the case of Oriental Insurance Company Limited v. Kahlon alias Jasmail Singh Kahlon (deceased) Through His Legal Representative Narinder Kahlon Gosakan and Anr., reported in (2022) SCC 494, the case of injured, who died during the trial was examined, and the Apex Court observed in paragraph nos.8 to 12 as under:
"8. The Act is a beneficial and welfare legislation. Section 166(1)
(a) of the Act provides for a statutory claim for compensation arising out of an accident by the Page 8 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined person who has sustained the injury.
Under clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under clause
(c) of Section 166(1). Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay Page 9 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries.
9. In Umed Chand (supra), giving a broad liberal interpretation to the provisions of the Act so that legal representatives do not suffer injustice, it was observed that the claim for personal injuries will not survive on death of the injured unrelated to the accident but the legal representatives could pursue the claim for enhancement of the claim for loss of the estate which would include expenditure on medical expenses, travelling, attendant, diet, doctor's fee and reasonable monthly annual accretion to the estate for a certain period. It is trite that the income which a person derives compositely forms part of the expenditure on himself, his family and the savings go to the estate. The unforeseen expenses as Page 10 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined aforesaid naturally have to be met from the estate causing pecuniary loss to the estate.
10. In Maimuna Begum (supra) the defence under Section 306 of the Indian Succession Act, 1925 on the old English Common Law maxim "actio personalis moritur cum persona" was rejected opining that it would be unjust to non-suit the heirs on that ground.
11. In Venkatesan (supra), the injured claimant preferred an appeal dissatisfied, but was deceased during the pendency of the appeal. Compensation came to be awarded under the Act for loss of estate keeping in mind the nature of the injuries, the treatment, the expenditure incurred and loss of income.
12. In Surpal Singh (supra), Justice K.S. Radhakrishnan, C.J. (as he then was), observed that the Act was a social welfare legislation providing for compensation by award to people who sustain bodily injuries or get Page 11 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined killed. The grant of compensation had to be expeditious as procedural technicalities could not be allowed to defeat the just purpose of the act. The Courts in construing social welfare legislations had to adopt a beneficial rule of construction which fulfils the policy of the legislation favorable to those in whose interest the Act has been passed. Judicial discipline demanded that the words of a remedial statutes be construed so far as they reasonably admit so as to secure that relief contemplated by the statute and it shall not be denied to the class intended to be relieved. Rejecting the maxim of "actio personalis moritur cum persona" on the premise that it was an injury done to the person and the claim abated with his demise it was observed:
"11. The question as to whether injury was personal or otherwise is of no significance so far as the wrong doer is concerned and he is obliged to make good the loss sustained by the injured.
Page 12 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined Legal heirs and legal representatives would have also
suffered considerable mental pain and agony due to the accident caused to their kith and kin. Possibly they might have looked after their dear ones in different circumstances, which cannot be measurable in monetary terms. We are therefore in full agreement with the view expressed by the learned Single Judge of this Court in Gujarat State Road Transport Corporation's case (supra) that even after death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives."
9.1 In Budh Singh Vs. Vijender Singh & Ors., reported in 2013 ACJ 19, the Delhi High Court in paragraph no.12, observed as under:
12. The Supreme Court in Smt. Manjuri Bera Vs. The Oriental Insurance Company Ltd. And Another, 2007 2 ACC 365 has held as under:Page 13 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024
NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined "9. According to Section 2(11) of CPC, 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration and Concillation Act, 1996, i.e. under Section 2(1)(g)."
10. The referred case of Kahlan's (supra) was filed under section 166 (1)(a), while in the present matter, the claim petition was filed under section 166(1)(c) of the M.V. Act. The relevant provision of section 166 is reproduced here under for ready reference:
"166. Application for compensation.-
(1) An application for compensation arising out of an accident of the Page 14 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
Provided further that where a person accepts compensation under section Page 15 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse.] [(2) Every application under sub-
section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
[(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.] (4) The Claims Tribunal shall treat any report of accidents forwarded to it under 6 [section 159] as an application for compensation under this Act.] Page 16 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined [(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]"
10.1 Clause (c) of sub-section (1) of section 166 notes that if the death has resulted from the accident. The application for compensation could be filed by or any of the legal representative of the deceased. Thus, on the death of the father, the claim petition was filed by widow mother and the elder son. While during the pendency of the matter, the mother died, hence, two other sons were impleaded as a claimant as legal representative of the deceased.
11. Here, in this case, the cause of action Page 17 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined for filing the claim petition is death of Becharbhai owing to the vehicular accident. The expression "legal representative" used in section 166(1)(c) of the M.V. Act has not been defined anywhere in the Act. The legislature has also not given any definition of expression "legal representative" in the M.V. Act. Section 2(11) of the C.P.C. defines 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. On death of a person, which has resulted from the accident, the application for compensation may be made by all or any of the legal representative. The proviso is significant, which in as much as provides, that when all the legal representatives of the deceased have not been joined in any such Page 18 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased, and the legal representatives, who have not so joined shall be impleaded as respondent to the application.
11.1 In this case, two other sons later on have been joined as heir of deceased mother. In fact, mother and elder brother were claiming the compensation on behalf of all the legal representatives of the deceased father. Hence, rest of the two brothers, who were joined in the claim petition, would have a cause to claim for compensation on the death of the father itself. 11.2 Now, the right of all the claimants, would get crystallize on the date of filing of the application. Hence, all the sons and the widow mother would have their right to file the claim petition, which arose on the cause of death Page 19 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined of the father because of vehicular accident. Thus, on the date of filing of claim petition on 14.02.1994, all the claimants, the widow mother and the sons had right to file the claim petition, and, this aspect has been clarified by Hon'ble Supreme Court in the case of N. Jayasree And Ors. v. Cholamandalam MS General Insurance Co. Ltd., reported in (2022) 14 SCC 712, observing that the term the term 'legal representative' should be given a wider interpretation for the purpose of the M.V. Act and it should not be confined only to mean the spouse, parents and children of the deceased. The M.V. Act being a benevolent legislation enacted for object of providing monetary relief to the victims and family. It has been observed by the Apex Court that only liberal and wider interpretation would serve the real purpose undermining the enactment fulfills its legislative intent. The following observation of Page 20 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined the Apex Court reads as under:
"16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.Page 21 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024
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18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression 'legal representative' for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr. 3 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held as under:
"13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to Page 22 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is Page 23 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v.
Chaturbhai Taljabhagujri [AIR 1977 Guj 195] and hold that
the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased."
19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors. 5 it was held that:
"7. ...12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique [1989 Supp.Page 24 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024
NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined (2) SCC 275] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only.
Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
21. This Court after examining Page 25 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined various provisions of the MV Act held that the appellant-society was the legal representative of the deceased 'brother'. While allowing the claim petition it was observed as under:
"17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning?
For answering this issue, the
Tribunal relied not only upon
judgments of American and
English Courts but also upon
Indian judgments for coming to Page 26 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary8 , which held that the term "legal representative" is wide enough to include even "intermeddlers"
with the estate of a deceased.
The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
22. Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record clearly establish that she was Page 27 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant no.4 herein may not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition.
11.3 N. Jayasree And Ors. (supra), is about the appellant no.4 being the mother-in-law of the deceased and she was also considered dependent of deceased.
12. When the claim petition was filed in the instant case, mother was alive. She died on Page 28 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 11.06.1997, the date gets reflected in Exh.20. The application is required to be considered under the provision of section 166(1)(c) of the M.V. Act. The right of the widow of deceased, mother of all the present claimants, to claim amount as compensation fell on the date of death of the husband. The learned Tribunal has failed to take this aspect into consideration, and has granted only the amount which the elder son had expended behind the father. Here, the deceased widow would have the right to claim compensation on the date of the application, and the right get crystalised on filing of the application, hence, the compensation amount is required to be ascertained on the date of filing of the claims petition.
13. The deceased was earning from the sugarcane juice shop. His earning was urged to be Rs.2,000/- per month. The mother would be entitled to receive the amount as a dependency Page 29 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined loss and the multiplier applicable, would be considered on the death of the deceased, while not on the death of the claimant. Considering the income of Rs.2,000/- per month, the annual income would come to Rs.24,000/- (2,000 x 12), but deducting 1/3rd amount as personal expenses considering the widow as a dependent, the dependency loss of the widow would be Rs.16,000/- (24,000 - 8,000). Applying the multiplier of 13, the dependency loss would be Rs.2,08,000/-. 13.1 The widow would be entitled for the consortium loss of Rs.40,000/- as per the judgment of Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782]. 13.2 The Tribunal has granted Rs.5,000/- each under the heads of loss to estate and funeral expense, which requires to be enhanced as Rs.15,000/- each under both the heads as per Page 30 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined judgment of National Insurance Company Ltd. v. Pranay Sethi and Ors., AIR 2017 SC 5157. 13.3. The Medical expense, which could be proved, the Tribunal has granted Rs.8,020/-, which is just and proper and requires no interference.
13.4 The deceased Becharbhai suffered for almost about six months. The amount granted under the head of pain, shock and suffering suffered by the deceased, as that would be considered to be the amount to the loss of estate to deceased, and in accordance to evidence of Doctor, Rs.25,000/- is assessed for the pain shock and sufferings undergone by the deceased father, as observed in paragraph no.5.5 of judgment rendered by Division Bench of this Court in case of Royal Sundaram Alliance Insurance Co. Ltd. Vs. Jayantibhai Hemchandbhai Panchal, reported in 2016 (0) JX (Guj) 1551 : 2016 (0) AIJEL-HC-236456. Page 31 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024
NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined 13.5 For special diet Rs.2,000/- and under the head of attendant charges and transportation Rs.5,000/- granted by the Tribunal, is just and proper and not required to be interfered with. 13.6 In view of the above, compensation under different heads would be:
Heads Tribunal has Amount
granted
Loss of ____ Rs. 2,08,000/-
Dependency
Consortium ____ Rs. 40,000/-
Loss to mother
Funeral Rs. 5,000/- Rs. 15,000/-
Expenses
Loss to Estate Rs. 5,000/- Rs. 15,000/-
Attendance Rs. 5,000/- Rs. 5,000/-
charges and
transportation
Special Diet Rs. 2,000/- Rs. 2,000/-
Medical Rs. 8,020/- Rs. 8,020/-
expenses
Pain, shock ____ Rs. 25,000/-
and suffering
undergone by
the deceased
Loss of love Rs. 5,000/- ____
and affection
Total Rs. 30,020/- Rs. 3,18,020/-
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14. The Tribunal has awarded total
compensation as Rs.30,020/-. The claimant would be entitled to get Rs.2,88,000/- (3,18,020 - 30,020) as enhanced compensation. The enhanced amount be deposited before the concerned Tribunal within Eight weeks from the date of receipt of writ of this order at the rate of 7.5%.
15. It has been brought on record that the elder son, Lalabhai Becharbhai Kahar was taking care to both the parents. Manubhai Becharbhai Kahar and Santosh Becharbhai Kahar had filed affidavit vide Exh.22 and 23 before the Tribunal that the compensation amount be paid to the elder brother, Lalabhai Becharbhai Kahar. 15.1 The amount, thus, would be, as entitlement of deceased mother along with all the legal representatives of deceased Becharbhai. In view of the affidavits of both the brothers, let Page 33 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024 NEUTRAL CITATION C/FA/3531/2014 JUDGMENT DATED: 14/02/2024 undefined the total amount be paid to Lalabhai Becharbhai kahar by Account Payee Cheque / NEFT on proper verification of identity.
16. In the result, the appeal is partly allowed. The impugned judgment and award dated dated 04.01.2014 passed in M.A.C.P. No.885 of 1996 by Motor Accident Claims Tribunal (Auxi.) Vadodara, stands modified to the aforesaid extent. No order as to costs.
(GITA GOPI,J) Pankaj Page 34 of 34 Downloaded on : Fri Feb 23 21:14:52 IST 2024