Gujarat High Court
Mehulbhai Babubhai Ghodasara vs Parimal Prahladrai Bansal on 24 July, 2024
NEUTRAL CITATION
C/FA/173/2020 ORDER DATED: 24/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 173 of 2020
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MEHULBHAI BABUBHAI GHODASARA & ANR.
Versus
PARIMAL PRAHLADRAI BANSAL & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1,2
MR NAGESH C SOOD(1928) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/07/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s - original claimant/s, being aggrieved and dissatisfied with the common judgment and award dated 01.08.2018 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar, in Motor Accident Claim Petition No.459 of 2011 by which the Tribunal has awarded compensation of Rs.10,79,120/- with 9% per annum interest to the claimant/s, holding Opponent/s liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 05.11.2011, the appellant/s were going with family in Gujarat Travel Bus bearing Registration No.GJ 18 U 9554 and when it reached at the spot of accident, it turned turtle and down of right side of the bridge and occupants received injuries and there was loss of life also in the accident that has occurred and therefore, the claim petition has been preferred.Page 1 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024
NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined 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 for enhancement.
3. Learned advocate for the appellant/s - claimant/s has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like income and prospective income of the deceased, family circumstances, etc. He has submitted that the deceased was serving as a teacher and she was earning Rs.5,300/- monthly and considering the judgment of this Court in the case of Pinkyben Wd/o Pravinkumar Jesangbhai Chaudhary V. Somaji Ranchhodji Thakor, reported in 2023 (0) AIJEL - HC 247856, more particularly, relying on paragraph Nos.8 and 9, income may be considered accordingly. Therefore, the Tribunal ought to have considered Rs.20,200/- per month income of the deceased. He has further submitted that looking to the age of the deceased and keeping in view the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, 40% income should be added towards prospective income of the deceased. He has further submitted that the deceased was married and therefore, he has left the dependents in the family behind her. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of Page 2 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024 NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined consortium. Further, he has submitted that the Tribunal has rightly deducted 1/3 amount towards personal expenses. He has fairly submitted that the Tribunal has properly applied the multiplier, which is 17 keeping in view the decision of Hon'ble Apex Court in the Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121. He has also submitted that the Tribunal has committed an error by awarding meager compensation under the head of loss of estate and funeral expenses and consortium, 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. He has 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 No.2 - insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased. He has further submitted that the Tribunal has committed an error by adding prospective income on higher side. He has submitted that under the head of loss of estate and funeral expenses and consortium, the Tribunal has rightly awarded compensation. She has submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. He has submitted that this appeal may be dismissed and no interference be made by this Court. He has submitted that this appeal may be dismissed.
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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 claimants.
6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal.
6.2 At this stage, it is apt to refer to the decision of this Court in the case of Pinkyben Wd/o Pravinkumar Jesangbhai Chaudhary V. Somaji Ranchhodji Thakor, reported in 2023 (0) AIJEL - HC 247856, more particulary, relevant paragraph Nos.8 and 9 are reproduced as under:
"8. The evidence of the Principal of Vinay Vidalaya Mandir, Secondary School, Khoda reflects that on 11.03.2005, the deceased had joined the school on fixed salary of Rs. 4,000/-, and the witness had stated that as per government rules and regulation on 11.03.2010, he was entitled for full salary, and as per their school records, had the deceased been alive and would have been performing the job as a teacher on 31.12.2023, he would have earned the salary of Rs.45,859/-. The witness had brought the school certificate on the letter pad, which was Page 4 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024 NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined placed on record at Exh.34. In the cross-examination, the principal stated that he was not knowing the deceased personally and the details, which he had given were as per the record. The deceased had not served in his presence. He affirmed that the deceased Pravinkurnar, as per the Gujarat Government Rules, was on five years fixed pay of Rs.4,000/- as Vidhya Sahayak. A suggestion was put to the witness, that it could not be necessarily said, that he would have been made permanent, to that suggestion, the witness denied. The Rules concerning non-satisfactory performance and breach of condition would have subjected deceased to a procedure for termination of job had been referred to, but there was no question to the witness about any improper conduct of the deceased during the term of his service, nor was any evidence brought on record of any disciplinary action initiated against him. The law does not appreciate any assumption of probabilities, and, to prove that he would have been terminated from his job, requires cogent evidence on record.
9. The deceased was on a sanctioned post. Considering the circulars in relation to the job of the deceased and the evidence on record, this Court is of the opinion that had the deceased continued to have been in service, then he would have been regularized in his job and would have received the benefit of 7th Pay Commission, and according to the documentary evidence at Exh.34 supported by oral evidence of the School Principal, on 01.01.2016, after having received the benefit of 7th Pay Commission, would receive Rs. 42,967/-. On 31.12.2017, would have received Rs. 45,859/- as salary, is the evidence of the Principal.
9.1 The deposition was recorded on 20.02.2018, and the document, Exh.34, was executed on 25.01.2018, thus, accordingly as per the school record on 31.12.2017, the total salary of the deceased, as would have been assessed, has been considered as Rs.45,859/-.
9.2 At the time of accident, the deceased was aged about 26 years, and was on fixed salary, hence, being considered him in permanent job, 50% prospective rise in income has to be considered, as per the judgment of National Insurance Company Ltd. v. Pranay Sethi and Ors. (supra), which would be considered as Rs.64,450.50 [rounded off Page 5 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024 NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined Rs.64,451/-) per month.
9.3 Here, in this case, the dependents are four in number, after deducting 1/4th as personal expense as Rs. 16,112/-, the monthly future loss would come to Rs.48,339/- (64,451 16,112). 9.4 Considering the age of the claimant as 26 years, as per Sarla Verma and Others vs. Delhi Transport Corporation and Another, reported in (2017) 16 SCC 680, the multiplier applicable would be 17 to the annual income, hence, the dependency loss would come to Rs. 98,61,156/-(48,339 x 12 x 17).
9.5 Under the conventional heads, Tribunal has granted Rs.15,000/- towards the loss of estate and Rs.15,000/-for funeral expenses, which is just and proper."
6.3 In light of the aforesaid decision, the Tribunal has committed an error by calculating the monthly income of the deceased. Therefore, the monthly income of the deceased would be calculated as Rs.20,200/- per month and looking to the age i.e. 28 years and considering the decision of the Hon'ble Apex Court in the case of Pranay Shethi (supra), 50% rise should be added as prospective income. Therefore, it would come to Rs.30,300/- per month income of the deceased. Further, considering the decision of Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Shethi (supra), 1/3 would be the deduction towards personal expense, which is rightly considered by the Tribunal. Therefore, it would come to Rs.20,200/- per month multiplied by 12 months and further multiplied by 17 multiplier keeping in view the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), it would come to Rs.41,20,800/-, as future prospective income, which should be awarded by the Tribunal.
6.2 Further, under the head of loss of consortium, the Tribunal has Page 6 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024 NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined awarded Rs.40,000/- only, which should be on higher side. It is not in dispute that there are two 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/- X 10% rise) would be proper to award, therefore, Rs.48,400/- x 2 dependents = Rs.96,800/- would be the compensation under the head of loss of consortium.
6.4 Further, under the head of loss of estate and funeral expenses, award of 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).
6.5 Therefore, total compensation would be as under, which the claimant/s are entitled to get.
Particulars Amount (Rs.)
Future prospective income 41,20,800/-
Loss of consortium 96,800/-
Funeral Expenses 18,150/-
Loss of Estate 18,150/-
Total... 42,53,900/-
Amount awarded by the Tribunal 10,79,120/-
Enhanced amount... 31,74,780/-
Therefore, I hold that the claimant/s are entitled to get the Page 7 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024 NEUTRAL CITATION C/FA/173/2020 ORDER DATED: 24/07/2024 undefined total amount of compensation of Rs.42,53,900/- with 9% 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 remain same. The Tribunal has already awarded Rs.10,79,120/-, therefore, remaining amount of Rs.31,74,780/- would be the enhanced amount of compensation payable to the claimants.
7. For the reasons recorded above, the following order is passed.
7.1 The present appeal is allowed to the aforesaid extent.
7.1 The common impugned judgment and award dated 01.08.2018 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar, in Motor Accident Claim Petition No.459 of 2011 is hereby modified to the aforesaid extent.
7.2 The Insurance Company is directed to deposit the enhanced amount Rs.31,74,780/- with 9% 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.
7.3 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 claimants, by account payee cheque, after proper verification and after following due procedure.
7.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
7.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SLOCK BAROT Page 8 of 8 Downloaded on : Fri Aug 02 23:09:58 IST 2024