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Judgment
Hasmukh D. Suthar, J
Admit. Mr. Chirayu Mehta, learned counsel waives service of notice of admission for respondent No.3.
With consent of learned counsel for both the sides and considering the issue involved in this appeal, which is narrow in compass, present first appeal is taken for final disposal forthwith.
Feeling aggrieved by and dissatisfied with the judgment and award dated 30.11.2022 passed by learned Motor Accident Claims Tribunal (Aux), Dahod at Limkheda, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.1810/2017, the appellants –original claimants preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
Heard Mr. Nishit Bhalodi, learned Advocate for the appellants – original Claimants and Mr. Chirayu A. Mehta, learned counsel for respondent No.3. Though served, none appears for respondent No.2 and respondent No.1 is reported as expired.
It is the case of the claimants that on 11.11.2015, deceased Navinbhai Mavi was standing on the side of the road near the motorcycle, at that time, one vehicle bearing registration No.GJ-20-V-5809 came with full speed and in rash and negligent manner and dashed with the deceased standing there. As a result, the deceased got serious injuries and succumbed to it. Therefore, the claim petition was filed by the legal heirs of the deceased to get compensation of Rs.15,00,000/- from the opponents. After appreciating the evidence produced on record, the learned Tribunal awarded compensation of Rs.6,10,000/- along with cost and interest @ 8 % p.a.
The appeal is filed on limited ground of quantum and no further issue qua liability or contributory negligence is challenged. Therefore, learned counsel for the claimant has mainly argued that, the Tribunal has erred in considering monthly income of the deceased as Rs.3,000/- on notional basis as he was doing labour work and earning Rs.7,000/- p.m. He has also submitted that, the deceased died left behind 8 dependents and therefore, compensation under loss of consortium is also required to be enhanced. Further, the Tribunal has also erred in not properly awarding compensation under other conventional heads and therefore, conventional heads are required to be awarded. Hence, he has prayed to allow the appeal as prayed for.
Learned counsel for the respondent No.3- Insurance Company has opposed the present appeal and submitted that, the Tribunal has rightly awarded compensation in absence of any evidence of income proof and adequate compensation is awarded under the head of conventional heads. Therefore, requested to dismiss the appeal.
Having considered the submissions made by learned counsel for the parties, it appears that the appeal is filed only on the aspect of quantum and liability is not challenged. The Insurance Company has not filed any cross-objection. Hence, this appeal is required to be decided on the aspect of quantum only. Alleged incident is not not in dispute. Involvement of the vehicle is also not in dispute. In order to prove the claim, the claimants have filed an Affidavit of claimant No.1 at Exh:20, FIR at Exh:21, Panchnama of scene of incident at Exh:22, Inquest Panchanama at Exh:23 and PM report at Exh:24. After appreciating the evidence produced on record, the Tribunal held the offending vehicle sole negligent relying on the decisions of the Bimla Devi Vs. HRTC reported in AIR 2009 SC 2819 and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635. Further, the age of the deceased is 40 years as per the claim petition and PM report which is at Exh:24 from which it reveals that the deceased was 40 years.
As per the law laid down by the Hon’ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record, then Tribunal has to consider prevalent minimum wages in absence of evidence of monthly income of the deceased. In the present case, the accident occurred in the year 2015 and during that time, the deceased was doing labour work and as per the minimum wages, the minimum income is required to be considered as Rs.7,440/-. Hence, the income of the deceased is reassessed as Rs.7,500/-per month. Further, the Tribunal has considered future prospective income of the deceased at 25 % which is required to be reassessed to 40 % because the Tribunal itself has believed that the age of the deceased between the age group of 36 to 40 years. As the deceased was married and having 8 dependents, 1/5 deduction as personal expenditure and living of the deceased and multiplier of 15 were considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] are just and proper.
Therefore, calculating the income of the deceased as Rs.7,500/- and future prospect of 40% = Rs.3,000/- which comes to Rs.10,500/- and 1/5nd amount is required to be deducted as personal expenditure and living of the deceased which comes to Rs.2,100/- and the net amount comes to Rs.8,400/-. In view of above, the amount under the head of loss of future dependency is required to be reassessed as Rs.8,400/- x 12 months x 15 multiplier = Rs.15,12,000/-. Therefore, the appellants are entitled to get additional amount of Rs.9,72,000/- under the head of future loss of dependency.
Further, the Tribunal by relying on the judgment of Pranay Sethi (supra) has awarded total Rs.70,000/- under three conventional heads, however, this Court is of the view that amount is required to be reassessed as Rs.18,150/- towards loss of estate and Rs.18,150/- towards funeral expenses. Further, in view of ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao Ghorpade & Ors., Vs M/ s ICICI Lambord Insurance Company Ltd., reported in 2022 LiveLaw (SC) 666 , the amount towards loss of consortium is reassessed as Rs.3,87,200/- as the deceased was 8 dependents.
As discussed above, the appellants – original claimants are entitled to get compensation computed as under:-
Heads
Awarded by the
Tribunal
Reassessed by this Court
Future loss of dependency
5,40,000/-
Rs.15,12,000/-
Loss of Estate
70,000/-
Rs.4,23,500/-
(Rs.18,150/- under loss of estate, Rs,18150/- under funeral expenses and Rs.3,87,200/- for loss of consortium)
Funeral expenses
Loss of consortium
Total compensation
6,10,000/-
19,35,500/-
As Rs.6,10,000/- is already awarded by learned Tribunal, the appellants – original claimant is entitled to get additional amount of Rs.13,25,500/- (Rs.19,35,500 – Rs.6,10,000/-) with proportionate costs and interest as awarded by the learned Tribunal.
Hence, present appeal is allowed. The judgment and award dated 30.11.2022 passed by learned Motor Accident Claims Tribunal (Aux), Dahod at Limkheda, in Motor Accident Claim Petition No.1810/2017 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. It is provided that respondent No.3 shall deposit such additional amount of Rs.13,25,500/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.
The Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly. Award to be drawn accordingly.