Partly allowed

Hiteshbhai @ Hitendra Bhagwanjibhai Gedia(Decd)Thr'Heirs v. Jagdishbhai Ravjibhai Talavia

Gujarat HC25 Jun 2018FA/2335/2008

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, modifying a Motor Accident Claims Tribunal award. The court increased the compensation by Rs. 2.10 lakhs to account for prospective earning capacity and enhanced the interest rate to 9% per annum, despite the lack of documentary proof of the deceased's actual income.

What did the court decide?

Award modified to increase compensation by Rs. 2,10,000 and interest rate enhanced to 9% from the date of the claim petition.

Hiteshbhai @ Hitendra Bhagwanjibhai… — Motor Accident Claims | Gujarat HC (2018)

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C/FA/2335/2008 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL No. 2335 of 2008

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH Sd/-

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================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?	======== Yes
2 To be referred to the Reporter or not ?	Yes
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 order made thereunder ?	No

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HITESHBHAI @ HITENDRA BHAGWANJIBHAI GEDIA(DECD)THR'HEIRS

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Versus

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JAGDISHBHAI RAVJIBHAI TALAVIA

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==========================================================

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Appearance:

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MR HARSHIT S TOLIA(2708) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,1.5 MR PARTH S TOLIA(5617) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4 MR HARSHAD K PATEL(2844) for the RESPONDENT(s) No. 2,3 MR NIKHIL S VYAS(5663) for the RESPONDENT(s) No. 1

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MS NIYATI JUTHANI, ADVOCATE with MR RITURAJ M MEENA(3224) for the RESPONDENT(s) No. 4

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 25/06/2018 ORAL JUDGMENT

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Heard learned advocate Mr.Tolia for the appellant, Mr.N.S. Vyas, learned advocate for respondent No.1, learned advocate Mr.H.K. Patel for respondent Nos.2 and 3 as well as learned advocate Ms. Niyati Juthani,

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C/FA/2335/2008 JUDGMENT

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learned advocate appearing with learned counsel Mr.R.M. Meena for respondent No.4. Perused the record as well as R & P received from the trial Court.

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The appellants herein are original claimants. They have challenged the judgment and award dated 13.2.2007 in MACP No.540/2001 by Motor Accident Claims Tribunal (Aux.) and 2^nd Fast Track Court of Amreli.

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By such impugned award, the Tribunal has awarded an amount of Rs.2,61,720/- with proportionate cost and running interest @ 7.5% p.a. from the date of claim petition till its realization to the appellant – claimant which is to be paid by original opponents and respondents herein.

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The appellants – claimants have claimed an amount of Rs.10,00,000/- in such claim petition contending that on 27.8.2001, when one Hiteshbhai @ Hitendra Bhagwanjibhai Ghedia was travelling on his motor cycle No.GJ-14A-9533 from Amreli towards

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C/FA/2335/2008 JUDGMENT

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Khambhalia via Fatehpur, on route between Fatehpur and Khambhalia, the driver of the opponent No.3 being driver of vehicle No.GJ-05-HH-2048 had came in full speed and rashly and negligently so as to endanger the human life and dashed with the vehicle driven by the victim. Because in such vehicular accident, victim had received grievous injuries and ultimately he succumbed to death. Therefore, legal heirs and dependents of the victim being his wife and minor have preferred such claim petition seeking compensation on different heads. The petitioner has filed this petition against driver and insurer of motor vehicle and motor vehicle driven by the victim as well as driver, owner and insurer of the offending vehicle.

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The respondents have resisted the claim petition by filing their reply inter-alia denying their liability and entitlements to the claimants to get compensation; so also contended that victim was not earning as claimed by them in the petition.

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However, after adjudication, the Tribunal has came to

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C/FA/2335/2008 JUDGMENT

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the conclusion that victim was also negligent in driving his vehicle to the extent of 10% and, therefore, while awarding total amount of compensation 10% amount of compensation has been deducted. So far as amount of compensation is concerned, the Tribunal has considered that victim was aged about 28 years and he was earning Rs.21,000/- at the time of accident by doing seasonal business, though claimants have come forward with a case that victim was earning Rs.6,000/- per month. After deducting 1/3^rd income for the personal expenses of the victim, the Tribunal has considered Rs.1,400/- as monthly dependency and applied 16 multiplier as suitable multiplier for awarding Rs.2,68,800/- towards loss of dependency and added Rs.20,000/- for expectation of life relying upon the decision reported in 2001(2) GLR 1777 and Rs.2,000/- towards transportation and funeral expenditure. Thereby, though total quantum of compensation is calculated as Rs.2,90,800/- deducting 10% from it towards negligence of the victim, an amount of Rs.2,61,720/- is awarded as aforesaid.

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C/FA/2335/2008 JUDGMENT

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Now, it is undisputed fact that neither driver nor owner or insurance company has challenged such award and, therefore, they admit their liability to pay compensation to the original claimants and they also admit the percentage of negligence by the victim and, therefore, now there is no reason to discuss any such issue.

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Then the only question remains is with reference to the quantum of compensation because against the award as aforesaid, the claimants have contended that they are entitled to additional compensation to the tune of Rs.3,00,000/- since appeal is restricted to such amount only though original claim was for Rs.10,00,000/-. The appellants have contended that the rate of interest awarded by the tribunal is improper, inasmuch as, the tribunal should have awarded 9% interest for delayed payment of compensation. It is also contended that the tribunal has failed to award proper amount of compensation towards head of loss of estate and for loss of consortium and also for loss of love and affection to

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C/FA/2335/2008 JUDGMENT

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the minor child. Though in appeal memo, the appellants have also challenged the negligence on the part of the victim, during active hearing, it has been submitted that even after considering 10% negligence of the victim since appellants are entitled to get additional compensation to the tune of Rs.3,00,000/-, they do not press such issue for further consideration.

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As against that, learned advocate for the insurance company has vehemently argued on both the issues i.e. percentage of negligence by the victim and amount of compensation awarded to the claimant, contending that victim was more negligent and, therefore, their liability is less and the tribunal has awarded more amount by considering overall evidence regarding income of the victim i.e. in absence of any documentary evidence to prove his income. However, there is no substance in such contention for the simple

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reason that opponents/respondents have not challenged the impugned award and, therefore, as aforesaid, practically, they admits the decision of the tribunal on both the counts. Therefore, there is no

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C/FA/2335/2008 JUDGMENT

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question of reducing the amount of compensation to any extent.

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Then the only issue remains to be answered in the appeal and in this judgment is to the effect that whether claimants are entitled to any additional compensation or not? For the purpose, I have verified the evidence adduced before the Tribunal which categorically proves the other issues which are now in res integra whereas so far as income part is concerned, the appellants have produced on record certain documentary evidence to show the income of the deceased which includes one certificate by private party though it is not properly proved on record. But all such documentary evidence confirms that victim was certainly doing the work and not an unemployed person and that was he holding a shop which was disposed off by present appellants after the incident. Therefore, when victim was paying regular amount to Amreli Nagar Palika for such shop, it can certainly be confirmed that he was having regular income. So far as actual income is concerned, it is true that there is

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C/FA/2335/2008 JUDGMENT

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no other evidence except bear words of the claimant that victim was earning Rs.6,000/- per month. In cross examination of the claimants, respondent could not disapprove such fact and, therefore, learned advocate for the appellants have contended that tribunal should have considered the monthly income as Rs.6,000/-. However, appellants are right in submitting that even if the monthly income considered by the tribunal is accepted as such which is Rs.2,100/- only, the tribunal has failed to award just compensation by not considering the prospective income of the victim. Thereby, it is submitted that considering the prospective income of the victim, at-least 50% of the income considered by the Tribunal, it would amount to Rs.3,150/- and applying the principle laid down in the case of Sarla Verma v. Delhi Transport Corporation reported in AIR 2009 SC 3140 which is approved in National Insurance Co. Ltd. v. Pranay Sethi reported in 2017 (16) SCC 680 , the deduction for personal expenses should be 1/4^th to 1/5^th only considering the total number of dependency and, therefore, monthly dependency would come to

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C/FA/2335/2008 JUDGMENT

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Rs.2,363/- and if as per Schedule II of the Motor Vehicle Act as well as per decision in Sarla Verma (Supra) , if 18 multiplier is taken as suitable multiplier, then, loss of dependency would come to Rs.5,10,408/-.

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It is further submitted that if conventional amount of Rs.70,000/- on all different grounds is awarded as confirmed in the case of Pranay Sethi (Supra) then total amount of compensation would be Rs.5,80,408/and even after deducting 10% towards negligence of the victim himself, the total compensation would be Rs.5,22,368/- and when Tribunal has awarded only Rs.2,68,720/-, the claimants are entitled to additional amount of Rs.2,53,648/-.

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Though there is substance in all such submissions by the claimant – appellant, the fact remains that there is no documentary evidence to prove the actual income of the victim and, therefore, income of the victim cannot be considered more than Rs.2,100/- per month. However, when the tribunal has not considered

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C/FA/2335/2008 JUDGMENT

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prospective income, it would be appropriate to consider prospective income of the victim by adding 50% income taken by the tribunal which would certainly come to Rs.3,150/- when there are only two minor sons of the victim and aged parents and, thereby total 5 claimants with widow, deduction of 1/3^rd is proper. Whereas the multiplier of 18 would be proper and, thereby, petitioners are entitled to Rs.4,53,600/towards loss of dependency + Rs.70,000/- towards conventional amount as

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discussed hereinabove which come to Rs.5,23,600/- in toto. From such amount, if we reduce Rs.52,300/towards negligence on the part of the victim himself, then amount comes to Rs.4,71,240/- whereas, tribunal has awarded Rs.2,61,720/-. Therefore, claimants are entitled to additional amount of Rs. 2,08,520/- which is rounded off to Rs.2,10,000/-.

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Similarly, when in the case of Reliance General Insurance Co. Ltd. v. Shalu Sharma reported in 2018(2) SCC 753 by larger bench , Hon'ble Supreme Court has awarded the interest @ 9%, it

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C/FA/2335/2008 JUDGMENT

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would be appropriate to award interest @ 9% from the date of claim petition.

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In view of above facts and circumstances, appeal is partly allowed in aforesaid terms whereby the impugned award is modified to the effect whereby now petitioners are entitled to an additional amount of Rs.2,10,000/- with 9% interest from the date of claim petition.

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The appeal is allowed to the aforesaid extent. R&P be sent back to the concerned Court, at the earliest.

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Sd/(S.G. SHAH, J)

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VATSAL S. KOTECHA

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Hiteshbhai @ Hitendra Bhagwanjibhai Gedia(Decd)Thr'Heirs v. Jagdishbhai Ravjibhai Talavia

Case brief

What is this about?

What did the court decide?

Hiteshbhai @ Hitendra Bhagwanjibhai Gedia(Decd)Thr'Heirs v. Jagdishbhai Ravjibhai Talavia

Case brief

What is this about?

What did the court decide?

What the court decided

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