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Gujarat High Court

Ruchita Wd/O Amitkumar Harishbhai ... vs Khumansinh S Chauhan on 16 February, 2023

Author: Vipul M. Pancholi

Bench: Vipul M. Pancholi

     C/FA/2454/2015                                 JUDGMENT DATED: 16/02/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                      R/FIRST APPEAL NO.        2454 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK:    Sd/-
=======================================================

1    Whether Reporters of Local Papers may be                             NO
     allowed 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 the judgment ?                                          NO

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any                                  NO
     order made thereunder ?

=======================================================
 RUCHITA WD/O AMITKUMAR HARISHBHAI HIRALAL BRAHMBHATT &
                        2 other(s)
                          Versus
            KHUMANSINH S CHAUHAN & 1 other(s)
=======================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NIRAV C BHATT(7420) for the Defendant(s) No. 1
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                             Date : 16/02/2023
                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK) Page 1 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023 C/FA/2454/2015 JUDGMENT DATED: 16/02/2023

1. This appeal is filed under Section 173 of the Motor Vehicle Act (hereinafter referred to as "the Act" for short) by the appellants - original claimants, wherein the appellants have prayed for enhancement of the compensation awarded while passing judgment and award dated 04.07.2015 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in MACP No.297/2010.

2. The factual matrix of the present case is as under, 2.1 On 15.12.2009, the husband of the appellant no.1 was going on motorcycle bearing Registration No.GJ-6-AN-3978 and when they reached near the place of offence, the respondent no.1 was coming towards them by driving Maruti Car bearing Registration No.GJ-6-A-4325 in a rash and negligent manner endangering the human life and dashed with the said motorcycle and because of which, the husband of the appellant no.1 fell down and sustained severe injuries, who died during treatment. Therefore, Claim Petition was filed before the Tribunal.

2.2 On filing of the claim petition, notice was issued, which was duly served and in pursuance thereto, the original respondents have appeared and contested the claim petition by filing written statement and thereby denied the claim. Thereafter, the parties led evidence before the Tribunal.

C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 2.3 After considering the evidence produced before the Tribunal, the Tribunal partly allowed the claim petition and thereby held the original opponent nos.1 to 3 jointly and severely liable to pay compensation to the claimants. The Tribunal awarded Rs.10,37,324/- together with interest at the rate of 9% p.a. from the date of petition till realization of the amount with proportionate cost of the petition.

3. Heard learned advocate, Mr. Hiten Modi for the appellants - original claimants and learned advocate, Mr. H.G. Majmudar for the respondent - Insurance Company.

4. Learned advocate, Mr. Modi has contended before this Court that the learned Tribunal has failed to appreciate the fact that the income of the deceased is proved by cogent material and evidence, therefore while determining the income of the deceased, the learned Tribunal has committed an error and has also considered only notional income instead of income of the deceased in actual. It is contended that the learned Tribunal has not considered supervisory income of the deceased from the agriculture activity. It is further contended that the learned Tribunal has not properly awarded the amount under the head of consortium, funeral expenses and loss on estate and, therefore, the present appeal is filed for enhancement of the compensation and challenging Page 3 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023 C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 the quantum awarded by the learned Tribunal.

5. As against that, learned advocate, Mr. Majmudar appearing for the respondent no.2 - Insurance Company has contended before this Court that the amount, which is considered by the learned Tribunal, is in-consonance with the documentary evidence produced by the original claimant and there is no error committed by the learned Tribunal. He has also further contended that there is no cogent and relevant material produced before the learned Tribunal with regard to the agriculture income as the agriculture land is situated at Savli and he was working at Ahmedabad and, therefore, he cannot usually attend the agriculture activity at Savli village and, therefore, the learned Tribunal has rightly not considered the supervisory income of the deceased from the agriculture operation. He has also further contended that the learned Tribunal has rightly awarded the amount and no interference is required to be called for in the impugned judgment and award. However, he has fairly submitted that the learned Tribunal has not properly awarded the amount under the head of consortium and other head, therefore, appropriate order may be passed.

6. We have heard learned advocates appearing for the respective parties and have also considered the material available on record.

7. Considering the recent pronouncements of the Hon'ble Supreme Court in case of Sarla Verma Vs. Page 4 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023 C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 Delhi Transport Corporation, reported in (2006) 9 SCC 121, as well as in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, the amount of compensation is to be awarded just and adequate and in the facts of the present case, while considering the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions, the learned Tribunal has not awarded just and appropriate compensation considering the fact that if we consider the minimum wages at the prevailing rate and considering the fact that the deceased is a mechanic at auto garage i.e. skilled labour then, at the prevailing rate, minimum wage is to be considered and, hence, the claimants are entitled to Rs.3900/- per month and since he is having agriculture land in his name, supervisory income ought to have been considered by the learned Tribunal. Therefore, we are of the opinion that the learned Tribunal has committed an error while determining the income of the deceased while awarding compensation and while determining quantum and compensation. We are also of the opinion that the learned Tribunal has not properly awarded amount under the head of consortium. Therefore considering the recent pronouncements of the Hon'ble Supreme Court in case Magma General Insurance Company Limited Vs. Ram @ Chuhru Ram, reported in (2018) 18 SCC 130, in case of United India Insurance Co. Ltd. V/s. Satinder Kaur @ Page 5 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023 C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 Satwinder Kaur, reported in AIR 2020 SC 3076, in case of New India Assurance Company Limited Vs. Somwati, reported in (2020) 9 SCC 644, the present appeal deserves to be allowed and the claimants are entitled to get loss of consortium at Rs.40,000/- each.

8. At this stage, this Court would like to refer to the relevant observations made by the Hon'ble Supreme Court in Paragraph Nos.38, 39, 40 and 42 of the decision of New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644, which read as under:

"38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss of consortium' but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.

39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.

40. We, thus, found the impugned judgments of Page 6 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023 C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head 'loss of love and affection'. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head 'loss of love and affection'.

xxx xxx xxx

42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents."

9. Thus, the appellants are entitled to get the following final amount as compensation:

Rs.11,42,400/- For future loss of Income + Rs. 1,20,000/- For loss of consortium + Rs. 15,000/- For loss of estate + Rs. 15,000/- For funeral expenses + Rs. 20,000/- For pain, shock and sufferings + Rs. 3,48,524/- For medical expenses

-----------

Rs.16,60,924/- Total Compensation

- Rs.10,37,324/- Awarded by Tribunal

-------------

Rs. 6,23,600/- Addl. Amount of Compensation

10. Thus in view of the above, the appellants -

original claimants are, therefore, entitled to the additional amount of compensation of Rs.6,23,600/-

C/FA/2454/2015 JUDGMENT DATED: 16/02/2023 to be recovered from original opponent nos.1 to 3 i.e. the respondent nos.1 to 3 herein together with interest at the rate of 6% per annum from the date of the claim petition till its realization, which is also agreed by learned advocate appearing for the respondent - Insurance Company and he has no objection for the same.

11. In view of the aforesaid observations and discussion, the present First Appeal stands allowed in part. The impugned judgment and award dated 04.07.2015 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in MACP No.297/2010 is hereby modified to the extent that the appellants - original claimants are entitled to the additional amount of compensation of Rs.6,23,600/- at the rate of 6% p.a. over and above the amount of Rs.10,37,324/- as awarded by the Tribunal from the date of the claim petition till its realization. The disbursement of the aforesaid additional amount of compensation shall be after proper verification of the claimants through RTGS/NEFT. No order as to costs. Record & Proceedings are ordered to be sent back to the concerned trial court forthwith.

Sd/-

(VIPUL M. PANCHOLI, J.) Sd/-

(HEMANT M. PRACHCHHAK, J.) Gautam Page 8 of 8 Downloaded on : Mon Feb 20 20:42:43 IST 2023