Lrs Of Decd. Kalubhai ... vs Anubha Amjubhai Parmar & 2 on 4 April, 2016

[Cites 3, Cited by 1]

Gujarat High Court

Lrs Of Decd. Kalubhai ... vs Anubha Amjubhai Parmar & 2 on 4 April, 2016

Bench: K.J.Thaker

                   C/FA/1605/2004                                                JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    FIRST APPEAL NO. 1605 of 2004



         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MR.JUSTICE K.J.THAKER
         ==========================================================

         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 ?

         ==========================================================
                LRS OF DECD. KALUBHAI BALUBHAIKUNVARIYA....Appellant(s)
                                       Versus
                     ANUBHA AMJUBHAI PARMAR & 2....Defendant(s)
         ==========================================================
         Appearance:
         MR DIVYESH SEJPAL, ADVOCATE for the Appellant(s) No. 1 - 1.4
         MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 3
         RULE UNSERVED for the Defendant(s) No. 1 - 2
         ==========================================================

             CORAM: HONOURABLE MR.JUSTICE K.J.THAKER

                                           Date : 04/04/2016


                                          ORAL JUDGMENT

1. The appeal has been filed by the appellantsoriginal Page 1 of 4 HC-NIC Page 1 of 4 Created On Wed Apr 06 02:38:35 IST 2016 C/FA/1605/2004 JUDGMENT claimants challenging the judgment and award dated 13.02.2003 passed by the Motor Accident Claims Tribunal, Bhavnagar (Auxi.) in M.A.C.P. No.247 of 2001.

2. Without adverting to the factual scenario, as this appeal is filed under Section 163A of the Motor Vehicles Act at the behest of the claimants, there is no crossobjections have been filed by the insurance company and they have accepted their liability, and therefore, the involvement, liability and the other issues pales into insignificance. The claimant was not a tort feasor, and therefore, the issue of negligence is also not required to be decided.

3. The only issue which arises in this appeal is that an accident took place way back in the year 2001 and the claim petition was filed under the provisions of Section 163A of the Motor Vehicles Act before the M.A.C.T., Bhavnagar which decided the matter and granted Rs.1,54,500/ as compensation for the death of the husband of the applicant No.1 and the father of applicants No.2 to 4 together with interest at the rate of 9% per annum from the date of petition till realisation with proportionate cost. The Tribunal, while considering the income portion, has considered that the deceased was doing bidi work and was selling the same. As per the postmortem report, he was aged 45 years. The Tribunal has considered the income of the deceased at the rate of Rs.3,000/ per month though the same is not admitted. An affidavit was filed by one Shri Vithalbhai Bhavanbhai who stated that the deceased was earning Rs.100/ to Rs.125/ per day, and therefore, in the year 2001, his income considered at the rate of Rs.3,000/ per month cannot be found fault with. The multiplier given Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Apr 06 02:38:35 IST 2016 C/FA/1605/2004 JUDGMENT unfortunately the Tribunal while adverting to the fact that there is an affidavit to the effect that Rs.3,000/ per month being the income of the deceased, his income will be considered at Rs.15,000/ per annum after taking into consideration of the fact that the age of the deceased is 45 years, which is contended by learned advocate Mr.Sejpal to be bad in the eye of law and therefore Rs.36,000/ per annum income of the deceased has to be considered which fact cannot be disputed by learned advocate Mr.Palak Thakkar appearing on behalf of the respondent No.3 and therefore he is unable to show that the certificate given by Nagarpalika is contrary to that effect. It appears that the Tribunal has considered this as claim petition under Section 166 of the Motor Vehicles Act, and it has been rightly pointed out by learned advocate Mr.Sejpal that, except the multiplier, the Tribunal has treated the same as under Section 166 of the Motor Vehicles Act.

4. In view of the above and for the reasons stated above, the appeal is allowed to the aforesaid extent. The impugned judgment and award passed by the Tribunal is hereby modified to the aforesaid extent and it is held that the original claimants shall be entitled to a sum of Rs.2,10,500/ (Rs.3,64,500/ Rs.1,54,000/ = Rs.2,10,500/) towards compensation under the provisions of Section 163A of the Motor Vehicles Act with interest at the rate of 9% per annum from the date of filing of the claim petition till realisation.

The enhanced amount of compensation as per this order shall be deposited by the Insurance Company with the Tribunal within a period of twelve weeks from today, and on such deposit, the same be paid to the original claimants by Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Apr 06 02:38:35 IST 2016 C/FA/1605/2004 JUDGMENT account payee cheque on proper verification and identification.

5. Present appeal is partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.

(K.J.THAKER, J) syed/ Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Apr 06 02:38:35 IST 2016

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