Gujarat High Court
Rinkuben Prasadpuri Gosai & 2 vs Arvindkumar Andarsinh Parmar & 2 on 10 July, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/FA/4932/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4932 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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RINKUBEN PRASADPURI GOSAI & 2....Appellant(s)
Versus
ARVINDKUMAR ANDARSINH PARMAR & 2....Defendant(s)
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Appearance:
CHETANKUMAR K SHAH, ADVOCATE for the Appellant(s) No. 1 - 3
MR GAJENDRA P BAGHEL, ADVOCATE for the Appellant(s) No. 1 - 3
MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3
MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 10/07/2017
ORAL JUDGMENT
[1] By consent of the learned counsel appearing for the respective parties, the appeal is taken up for final disposal.
[2] The Appellants have filed the present appeal seeking
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enhancement in the amount of compensation awarded by the Motor Accident Claims Tribunal (Main), Panchmahals, Godhra, in Motor Accident Claim Petition No.544 of 2004.
[3] The Appellants had filed the aforesaid claim petition under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") seeking compensation on account of death of one Prasadpuri Harshadpur Gosai, who expired in the accident, which took place on 01.03.2004. The deceased Prasadpuri was traveling in the Jeep No.GJ-17-C- 3095 from Godhra to Lunawada and when the said Jeep reached near Panchmahal Dairy at about 4:00 p.m., the driver of the Jeep lost control over the Jeep and, therefore the deceased Prasadpuri was thrown out from the Jeep and due to this accident, he had sustained injuries and he was immediately admitted in the Civil Hospital, Godhra and thereafter, he was transferred in the Government Hospital at Ahmedabad and on 02.03.2004, he expired. The appellants stated that the deceased was earning Rs.5,000/- per month and he was aged about 24 years old and, therefore, the applicants have claimed compensation to the tune of Rs.7,85,000/- under Section 163A of the Act from the respondents jointly and severally from the owner and the insurer of the Tipper alongwith interest thereon from the date of petition till the realization of the compensation amount. Dissatisfied by the amount of compensation so awarded, the original Claimants have filed the present appeal.
[4] The learned counsel for the Appellants submitted that though there was evidence as about the income of deceased Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Jul 23 23:16:38 IST 2017 C/FA/4932/2008 JUDGMENT Prasadpuri Harshadpur Gosai, the learned Tribunal has failed in appreciating the evidence. The learned counsel submitted that even in absence of any evidence as about the income of deceased Prasadpuri Harshadpur Gosai, the Tribunal ought to have determined the amount of compensation on the basis of notional income to the tune of Rs.36,000/ per annum. He relied upon the decision rendered in the case of Anita and others, reported in [2016 A.C. 866 (Bom) (AB)], wherein, in absence of any documentary evidence to prove the actual income of the deceased, the Tribunal had considered notional income to be Rs.36,000/- per month. The learned counsel submitted that the Tribunal has held the annual income of deceased to the tune of Rs.15,000/- and had accordingly awarded the compensation. He contended that the deceased was holding a tea shop. The learned counsel, therefore, prayed for enhancement in the amount of compensation and to accordingly modify the award, impugned in the present appeal.
[5] Shri G.C.Mazmudar, learned counsel for Respondent No.3 -Insurance Company supported the impugned judgment. The learned counsel submitted that the claimants has produced certificate issued by the Mamlatdar, Lunvawada, however, the Mamlatdar, Lunawada has no personal knowledge about the income of the deceased and he has issued the certificate on the basis of the report submitted by the Talati of the Lunawada and hence, the same cannot be accepted. Further, there is no evidence that he was holding tea shop as the appellants have not produced any books of accounts of the deceased's business or licence of the tea Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Jul 23 23:16:38 IST 2017 C/FA/4932/2008 JUDGMENT shop. In the circumstances, according to the learned counsel, whatever compensation has been awarded by the Tribunal is just and fair and no interference is required in the impugned judgment. The learned counsel, therefore, prayed for dismissal of the appeal.
[6] After having heard the arguments advanced by the learned counsel for the respective parties and on perusal of the impugned judgment, it is apparently revealed that the amount of compensation as awarded by the Tribunal is inadequate and cannot be said to be just and fair compensation in the facts and circumstances of the case. Even if it is accepted that the Claimants could not bring on record any documentary or other evidence so as to prove the actual income of deceased Prasadpuri Harshadpur Gosai, the Tribunal must have held the income of deceased Prasadpuri Harshadpur Gosai notionally to the tune of Rs.2,000/- per month i.e. Rs.24,000/- per annum. The Tribunal has grossly erred in holding the income of deceased Prasadpuri Harshadpur Gosai to the tune of Rs.15,0000-/- per annum.
[7] I hold the income of deceased Prasadpuri Harshadpur Gosai to the tune of Rs.24,000/- per annum. 1/3rd of the said amount will have to be deducted towards the personal expenses of the deceased. It has to be assumed that deceased must be spending the balance amount of Rs.16,000/- per annum on the maintenance and/or welfare of his family members. It is not in dispute that the age of deceased Prasadpuri Harshadpur Gosai was around 24 years at the time of his death. The multiplier of 17 thus will be applicable for determining the amount of compensation. By Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Jul 23 23:16:38 IST 2017 C/FA/4932/2008 JUDGMENT applying the said multiplier, the amount of dependency compensation comes to Rs.2,72,000(16,000 x 17 =2,72,000). The Tribunal has awarded the compensation of Rs.2,500/- towards loss of estate, Rs.5,000/- towards loss of consortium and Rs.2,000/- towards funeral expense. The Appellants/ Claimants are thus entitled for the total compensation amounting to Rs.2,81,500/. Therefore, the compensation awarded to the claimants is enhanced from Rs. 1,79,500/- to Rs. 2,81,500/-. In the facts and circumstances of the case, it appears to me that this would be the just and fair compensation payable to the Appellants / Claimants. The Appellants/Claimants are held entitled for the total compensation amounting to Rs.2,81,500/- (Rs.1,79,500/- originally awarded plus Rs.1,02,000/- enhanced). Respondents shall jointly and severally pay the aforesaid amount of compensation to the Appellants / Claimants with interest thereon at the rate of 7.5% per annum from the date of petition till the date of realization of the compensation amount within eight weeks from today. Modified award be drawn accordingly. Appeal is partly allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Records and proceedings, if any, be sent back to the trial Court, concerned forthwith.
(Z.K.SAIYED, J.) siddharth Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Jul 23 23:16:38 IST 2017