Gujarat High Court
Sangitaben Wd/O Nandubhai Patel vs Chandrakant Shantilal Pandya on 20 October, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, Samir J. Dave
C/FA/4216/2019 JUDGMENT DATED: 20/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4216 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE sd/-
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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 of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SANGITABEN WD/O NANDUBHAI PATEL & 3 other(s)
Versus
CHANDRAKANT SHANTILAL PANDYA & 2 other(s)
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1,2,3,4
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 07.05.2016 passed by the learned Motor Accident Claims Tribunal (Auxi), Patan in MACP No.173 of 2007, the appellants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
Page 1 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 2.0. The following facts emerge from the record of this appeal;
2.1. That the accident took place on 15.05.2007 when deceased - Nandubhai PatelVikrambhai Sardarbhai Pagi and his friend Revabhai, both were going to Chanasama on Indica Car bearing registration No. GJ-18-AB-7548. At that time, near Dhinoj village, the opponent no.1 came with ST Bus bearing registration No. GJ-18-V-6469 in rash and negligent manner and dashed with the Indica Car of the deceased and thereby caused injuries to the deceased and deceased died on the spot. An FIR was lodged with the jurisdictional Police Station. It is the case of the appellants that deceased was aged about 47 years at the time of accident. The appellants preferred claim petition under Section 166 of the Act and claimed compensation at Rs. 35 lakh. The appellants also adduced following oral as well as documentary evidence before the Tribunal.
Exh.No. Particulars 24 Examination of Chief of Sangitaben 27 Copy of Complaint 28 Panchnama of spot of accident 29 Inquest Panchnama 30 PM Note 31 Certificate of cause of death 32 Death certificate of deceased 33 Insurance police of Indica Car 34 School leaving certificate of deceased Page 2 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022 C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 42 Driving license of deceased 43 RC Book of Indica Car 44 Income Tax Return of deceased of AY 2004-05 45 Income Tax Return of deceased of AY 2005-06
The Tribunal after appreciating the evidence on record and considering the submissions made by the respective parties, partly allowed the claim petition and awarded the compensation of Rs. 6,27,164/- with 9% interest from the date of application till its realization with proportionate costs.
3.0. Heard Mr. Kaash Thakkar, learned advocate for the appellants and Ms. Vasavdatta Bhatt learned advocate for the respondent no.2 and Mr. Rahul Dholakiya, learned advocate for the respondent no.3. With the consent of the learned advocates for the respective parties, the matter is taken up for its final hearing forthwith. We have perused the original record and proceedings of the case.
4.0. Mr. Kaash Thakkar, learned advocate for the appellants has contended that the Tribunal has committed an error in determining the income of the deceased and has not considered the fact that the deceased was dairy business and was owner of Indica Car. Mr. Thakkar further contended that the appellants have also entitled for personal accident claims against respondent Insurance Company. Relying upon the judgment of the Hon'ble Supreme Court in the case of United India Insurance Page 3 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022 C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 Company Limited vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, it was contended by Mr. Thakkar that all the claimants would be entitled to consortium. It was also contended that the Tribunal has granted lesser amount under the different conventional heads, which deserves to be modified as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680. On the aforesaid ground, it was contended by Mr. Thakkar, learned advocate for the appellants that appeal be allowed as prayed for.
5.0. Per contra, Ms. Bhatt, learned advocate for the respondent ST Corporation and Ms. Dholakiya, learned advocate for the respondent Insurance Company have opposed the present appeal and have submitted that the income of the deceased is rightly assessed at Rs.7392/- per month by the Tribunal. It was also contended that the appellants are not entitled to any further consortium. Accordingly, it was contended by learned advocate for the respondents that the appeal being meritless, deserves to be dismissed.
6.0. No other and further submissions/ contentions have been made by the learned advocates for the respective parties.
7.0. Considering the submissions made and on reappreciation of evidence on record, the RC Book at Exh.43 Page 4 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022 C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 clearly shows that the date on which the accident occurred the deceased was owner of the said Indica Car. Upon reappreciation of evidence on record, it clearly transpires that the deceased was doing dairy business and was earning Rs.14,825/- p.m. It further transpire that deceased had also produced income tax return at Exh. 44 and 45 wherein income of the deceased was reflected as Rs. 95,524/- for the year 2005-06 and Rs.81,879/- for the year 2004-05. Considering such piece of evidence, we are of the opinion that the Tribunal has not erred in considering the income of the deceased at Rs.7392/- per month. Upon re- appreciation of evidence, the Tribunal has committed an error in awarding future prospective income at 30% and considering the age of the deceased, the appellants would be entitled to future prospective income at 25%. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to compensation under the head of future loss of income as under:
Rs. 7392/- per month (income) + Rs.1848/- (25% prospective income) = 9240/- - 1848/- (1/5 towards personal income = Rs.7392/-- x 12 (pa)= 88,700/- X 13 (Multiplier as the age of the deceased was 47 years) = 11,53,152/-.
8.0. Following the judgment of the Hon'ble Supreme Court in the case of Satinder Kaur @ Satwinder Kaur (supra), the appellant no.1 would be entitled to Page 5 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022 C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 consortium to the tune of 40,000/-and appellant nos. 2 and 4 children would be entitled to parental consortium to the extent of 40,000/- each and appellant no.5 and 6 being father and mother of the deceased would be entitled to parental consortium to the tune of Rs.40,000/-. Over and above the same, the appellants would be entitled to Rs.15,000/- loss of estate and Rs.15,000/- towards funeral expenses.
9.0. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to total compensation as under:
Particulars Amount (Rs.) Future loss of income 11,53,152/-- Parental consortium 2,40,000/-- Loss of estate 15,000/- Conventional and Funeral 15,000/- Expenses Total Compensation 14,23,152/-
Mr. Thakkar, learned advocate for the appellants however does not dispute the fact that the deceased also was contributory negligent for the accident and does not dispute the finding arrived at by the Tribunal that deceased was also contributory negligent to the extent of 50%. In light of the aforesaid, the appellants- claimants would be entitled to compensation of Rs.14,23,152/- minus 7,11,576/- (50% contributory negligence of the deceased) = Rs. 7,11,576/-. As the Tribunal has awarded an amount of Rs. 6,27,164/-/-, the respondent nos. 1 and 2 shall deposit the Page 6 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022 C/FA/4216/2019 JUDGMENT DATED: 20/10/2021 additional amount of Rs.84,412/- with 9% interest from the date of claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. The impugned judgment and award stands modified to the aforesaid extent.
10. The contention raised by the learned advocate for the appellant that the personal accident coverage was also there in the policy also, however such liability, if any arises, by virtue of the terms of the contract and in case if there is any breach of the same, the party to the contract can avail legal remedy either before the competent Civil Court or before the Consumer Forum. With a liberty to raise such contention before the competent forum, the same is not dealt with.
Thus, appeal is partly allowed to the aforesaid extent. However, there shall be no order as to costs. Registry is directed to transmit back the R & P to the concerned Tribunal forthwith.
sd/-
(R.M.CHHAYA,J) sd/-
(SAMIR J. DAVE,J) KAUSHIK J. RATHOD Page 7 of 7 Downloaded on : Mon Jan 17 01:09:33 IST 2022