Gujarat High Court
Rajeshbhai Ramchandra Mandowra vs Sukaransinh Gurmitsinh on 7 August, 2024
NEUTRAL CITATION
C/FA/2453/2018 ORDER DATED: 07/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2453 of 2018
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RAJESHBHAI RAMCHANDRA MANDOWRA
Versus
SUKARANSINH GURMITSINH & ORS.
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Appearance:
BHAVIN B THAKAR(9371) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 5
MR VISHAL C MEHTA(6152) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 4
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/08/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s - original claimant/s - legal heir of the deceased, being aggrieved and dissatisfied with the common judgment and award dated 23.02.2018 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in Motor Accident Claim Petition No.372 of 2005, by which the Tribunal has awarded compensation of Rs.1,30,200/- with 7% per annum interest to the claimant/s, holding opponent Nos.1 and 2 as well as opponent Nos.3 to 5 liable, jointly and severally to the extent 70:30.
2. Brief facts of the case are as under:
2.1 The short facts giving rise to the present claim fact that are petition on 31.10.2004, applicant Mangilalbhai (claimant of M.A.C.P Page 1 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined No.369/2005) his wife (claimant of M.A.C.P No.371/2005) and parents of claimant Rajeshbhai (of M.A.C Petition No.370/2005 and 372/2005) were coming to Ahmedabad from Udaipur in a Maruti Alta Car bearing No.GJ.1.H.F.1297. Applicant Mangilalbhai was driving the aforesaid car on the left side of the road by following traffic rules.
When they were going towards Lohanaghati in the aforesaid car, a motortruck bearing No.H.R.38.J.5812 owned by opponent No.1 and driven by its driver came from the wrong side i.e the track on which the car of the claimant was going, at a very high speed driving rashly and negligently and collided its front part with the right front portion of the car due to which the applicant Mangilalbhai, his wife and parents who were travelling in the car sustained serious injuries. The parents of Mangilalbhai died due to the accident and the car of the applicant also got damaged due to the accident. A complaint came to be filed in respect of the above accident at Bichuvada Police Station against the driver of the truck. Hence, the present claim petition has been filed.
2.2 Therefore, the legal heir of the deceased has filed claim petition seeking compensation of Rs.2 lakhs with cost and interest for unnatural and untimely death against the present respondents before the Tribunal.
2.2 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.3 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by Page 2 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined the claimant/s for enhancement.
3. Learned advocate the appellant/s - claimant/s has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; loss of consortium, funeral expenses and loss of estate, and family circumstances, etc. It is submitted that the Tribunal has rightly considered the amount of Rs.1,00,200/- towards loss of dependency benefits. It is also submitted that the Tribunal has committed an error by awarding meager compensation under the head of loss of estate and funeral expenses, which should be more in view of decisions of Hon'ble Apex Court in the case of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. It is further submitted that the deceased has left the dependents in the family behind him. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of consortium. It is submitted that under other heads except above, the Tribunal has rightly considered the amount of compensation. It is submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocate for contesting respondent Nos.2 and 5 - insurance companies have submitted that the impugned Page 3 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined judgment and award passed by the Tribunal is just and proper. It is also submitted that under the head of loss of estate and funeral expenses, the Tribunal has rightly awarded compensation. It is also submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. However, from the submissions made by learned advocate for the appellant/s that the Tribunal has committed certain errors, on this aspect, learned advocates for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order, in the interest of justice. It is submitted that this appeal may be dismissed and no interference be made by this Court.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimant/s. At the outset, I have considering the decision cited at the bar by learned advocate for the appellant. The judgments cited at the bar by learned advocate for the appellant is helpful to the facts of the present case.
6.1 I have considered the submissions made by the rival parties. I Page 4 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined
have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is noted that the claimant has by and large claimed enhancement towards loss of consortium, funeral expenses and loss of estate, and family circumstances, etc. It transpires that the Tribunal has considered the amount of Rs.1,00,200/- towards loss of dependency benefits, which is rightly considered by the Tribunal considering the materials available on the record, and the same is not disputed by learned advocate for the appellant.
6.2 Further, under the head of loss of consortium, the Tribunal has not awarded any amount. It is not in dispute that there are one dependents in the family. In view of the decisions of Hon'ble Apex Court in the cases of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, under the head of loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%) would be proper to award, therefore, Rs.48,400/- x 1 dependents = Rs.48,400/- would be the compensation under the head of loss of consortium.
6.3 Further, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, would be the just and proper compensation, considering the decisions of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra). Furthermore, under other heads except the above, the amount awarded by the Tribunal is not disputed by learned advocate for the Page 5 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined appellant/s, otherwise also, the Tribunal has rightly considered the amount under those heads.
6.4 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 1,00,200/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 48,040/-
Total... 1,84,900/-
Less : Amount which is already 1,30,200/-
awarded
Additional amount which is 54,700/-
awarded
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.1,84,900/- with 7% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal shall remain same. The Tribunal has already awarded Rs.1,30,200/- and, therefore, remaining amount of Rs.54,700/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
Page 6 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024 NEUTRAL CITATION C/FA/2453/2018 ORDER DATED: 07/08/2024 undefined 8.2 The impugned common judgment and award dated 23.02.2018
passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in Motor Accident Claim Petition No.372 of 2005 is modified to the aforesaid extent.
8.3 The respondent Nos.2 and 5 - Insurance Companies are directed to deposit the enhanced amount Rs.54,700/- with 7% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order to the extent 70:30 respectively.
8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 7 of 7 Downloaded on : Tue Aug 13 20:37:32 IST 2024