Gujarat High Court
Mahavirsinh Indravijaysinh Jhala vs Malade Degar Bhutiya & on 6 January, 2016
Author: M.R. Shah
Bench: M.R. Shah
C/FA/1818/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1818 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
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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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MAHAVIRSINH INDRAVIJAYSINH JHALA
(DECD)THR'HEIRS....Appellant(s)
Versus
MALADE DEGAR BHUTIYA & 1....Defendant(s)
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Appearance:
BALKRISHNA ACHARYA, ADVOCATE for the Appellant(s) No.1-1.2
MR KK NAIR, ADVOCATE for the Defendant(s) No. 2
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 06/01/2016
ORAL JUDGMENT
[1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Jamnagar (hereinafter referred to as "the tribunal") in MACP No.573/1995 by which the learned tribunal has awarded a total sum of Rs.2,13,000/-
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towards compensation for the death of the deceased-
Mahavirsinh Jhala, the original claimants-parents of the
deceased have preferred the present Appeal to enhance the amount of compensation.
[2.0] It is not in dispute that the deceased died in a vehicular accident which occurred in the month of July, 1995. The factum of the accident that he died in a vehicular accident is not in dispute. The original claimants-parents of the deceased therefore filed the Claim Petition before the learned tribunal claiming Rs.12 lakhs in all towards compensation for the death of the deceased. It was the case on behalf of the original claimants that the deceased-Mahavirsinh Jhala at the time of the accident was aged 22 years and he studied upto MSC (Agriculture). He also appeared in the GPSC Examination and also cleared the written as well as oral examination for Class II Officer. He also received interview call letter from LIC for the post of Assistant and, therefore, it was the case on behalf of the original claimants that the income of the deceased was required to be considered at Rs.5585/- per month. By the impugned judgment and award the learned tribunal has awarded a total sum of Rs.2,13,000/- towards compensation under different heads;
Rs.1,80,000/- for loss of dependency benefit Rs. 15,000/- for medicine, rich diet, transportation and attendant charges Rs. 10,000/- for loss of expectation of life Rs. 5,000/- for pain, shock and suffering undergone by the claimants during treatment of the deceased Rs. 3,000/- for expenses of after death ceremony
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Rs.2,13,000/-
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[2.1] Feeling aggrieved and dissatisfied with the
impugned judgment and award passed by the learned tribunal the original claimants-parents of the deceased have preferred the present Appeal to enhance the amount of compensation.
[3.0] Shri Balkrishnan Acharya, learned advocate appearing on behalf of the original claimants-parents has vehemently submitted that the learned tribunal has materially erred in awarding Rs.1,80,000/- under the head of loss of dependency. It is submitted that while awarding future loss of income / loss of dependency the learned tribunal has materially erred in assessing the income of the deceased notionally at Rs.3000/- per month. It is submitted that looking to the educational qualification and even the fact that the deceased had even cleared the written examination conducted by GPSC for the post of Class II Officer and had also cleared the written examination for the post of Assistant in LIC , the learned tribunal ought to have assessed the income of the deceased at least at Rs.6000/- per month and thereafter should have considered 50% towards future rise in income.
[3.1] It is further submitted that the learned tribunal has even materially erred in awarding Rs.10,000/- only under the conventional heads. It is submitted that in the facts and circumstances of the case the learned tribunal ought to have awarded at least Rs.25,000/- under the conventional heads such as loss of expectation of life, loss of love and affection etc. [3.2] It is further submitted by Shri Acharya, learned advocate appearing on behalf of the original claimants-parents Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Jan 12 00:39:46 IST 2016 C/FA/1818/2005 JUDGMENT that the learned tribunal has materially erred in deducting 2/3rd towards the personal expenses of the deceased. Relying upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and Ors. Vs. Delhi Transport Corporation and Anr reported in 2009 (6) SCC 621 it is submitted that as the deceased was a bachelor / unmarried only ½ was required to be deducted towards the personal expenses of the deceased. It is further submitted by Shri Acharya, learned advocate appearing on behalf of the original claimants-parents that the learned tribunal has materially erred in applying the multiplier of 15. It is submitted that as the deceased was aged 22 years at the time of the accident multiplier of 18 was required to be applied.
Making the above submissions it is requested to allow the present Appeal to the aforesaid extent.
[4.0] Shri K.K. Nair, learned advocate appearing on behalf of the respondent-Insurance Company has vehemently opposed the present Appeal by submitting that the amount awarded by the learned tribunal cannot be said to be on a lower side and as such the same can be said to be a just compensation and the same is not required to be interfered wit by this Court. It is further submitted that in the present case the learned tribunal has awarded Rs.5000/- towards pain, shock and suffering undergone by the original claimants during the treatment of the deceased, which is absolutely inadmissible.
Making the above submissions, it is requested to dismiss the present Appeal.
[5.0] Heard the learned advocates appearing on behalf of
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the respective parties at length. Perused the impugned
judgment and award passed by the learned tribunal. This
Court has gone through the entire evidence on record. At the outset it is required to be noted that by the impugned judgment and award the learned tribunal has awarded Rs.1,80,000/- towards future loss of income / loss of dependency. It appears that while awarding future loss of income the learned tribunal has assessed the income of the deceased notionally at Rs.3000/- per month and after deducting 2/3rd towards the personal expenses of the deceased and applying the multiplier of 15 the learned tribunal has awarded Rs.1,80,000/- towards future loss of income / loss of dependency. However, it is required to be noted that the deceased at the time of the accident was aged 22 years and he studied up to MSC (Agriculture) and he had even cleared the written examination conducted by GPSC for Class II Officer and had also cleared the examination conducted by LIC for the post of Assistant. Looking to the educational qualification and he having bright career in future and he even cleared / passed the written examination conducted by GPSC for Class II Officer and by LIC for the post of Assistant this Court is of the opinion that assessing the income of the deceased at Rs.3000/- per month notionally can be said to be absolutely on lower side. Considering the aforesaid facts and circumstances of the case and even considering the decision of the Hon'ble Supreme Court in the case of Lata Wadhwa & Ors. Vs. State of Bihar & Ors reported in AIR 2001 SC 3218 the Hon'ble Supreme Court has assessed the income of the house wife at Rs.3000/- per month and, therefore, the income of the deceased even notionally is required to be assessed at Rs.5000/- per month. As the deceased was aged 22 years 50% Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Jan 12 00:39:46 IST 2016 C/FA/1818/2005 JUDGMENT of the aforesaid is required to be added towards future rise in income also. Under the circumstances, the prospective income would come to Rs.7500/-. As the deceased was a bachelor and as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and Ors. only ½ was required to be deducted towards the personal expenses of the deceased and, therefore, deducting ½ towards the personal expenses of the deceased, loss of dependency to the family would come to Rs.3750/- and after applying the multiplier of 18 the loss of dependency to the family would come to Rs.8,10,000/-. Under the circumstances, the original claimants-parents shall be entitled to Rs.8,10,000/- towards future loss of income / loss of dependency. The original claimants shall also be entitled to Rs.25,000/- under the conventional heads such as loss of expectation of life, loss of love and affection etc.. The original claimants shall also be entitled to Rs.15,000/- towards medical expenses, transportation and assistant charges as he died after a period of 12 days. The original claimants shall also be entitled to Rs.3000/- towards funeral expenses. Thus, the original claimants shall be entitled to a total sum of Rs.8,53,000/- towards compensation for the death of the deceased with 9% interest from the date of the application till realization.
[6.0] In view of the above and for the reasons stated hereinabove, the present Appeal succeeds in part and consequently is partly allowed. The impugned judgment and award passed by the learned tribunal in MACP No.573/1995 is hereby modified to the extent and it is held that the original claimants shall be entitled to a total sum of Rs.8,53,000/- with 9% interest thereon from the date of application till realization Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Jan 12 00:39:46 IST 2016 C/FA/1818/2005 JUDGMENT from the respondents. The balance enhanced amount as per the judgment and order now to be deposited by the concerned respondents, more particularly, respondent no.2-Insurance Company with the learned tribunal within a period of eight weeks from today and on such deposit the same to be paid to the original claimants on proper identification and verification by the learned tribunal itself. The present Appeal is partly allowed to the aforesaid extent. No order as to costs.
(M.R. SHAH, J.) Siji Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Jan 12 00:39:46 IST 2016