Ritaben Jashubhai Chauhan & Ors vs Somabhai Dhulabhai Malival & Ors

Hasmukh D. Suthar, J

1) Feeling aggrieved and dissatisfied with the judgment and award dated 24.07.2024 passed by learned Motor Accident Claims Tribunal (Auxi.), Kheda at Nadiad (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.1180 of 2021, the appellants – original claimants have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).

2) Heard Mr. N. A. Bhalodi, learned Advocate for the appellants – original Claimants and Ms. M. V. Nanavaty, learned Advocate for respondent – Insurance Company. Perused the original record and proceedings.

3) It is the case of the appellants that on 19.11.2021, the deceased Jashubhai Laljibhai Chauhan (who shall hereinafter be referred to as “deceased”) was returning to his home and he was walking on foot at the corner of Juna Rohitvas from Balasinor Bus Stand to Rajpura Darwaja Road, at that point of time, the opponent no.1 driver of Tanker bearing Reg. No.GJ-18-AX-5121, ownership of opponent no.2 came in very rash and negligent manner and dashed with the deceased from behind and resultantly the deceased sustained injuries and succumbed on the spot. Therefore, the appellants had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record has partly allowed the claim petition.

4) The learned Advocate Mr. N. A. Bhalodi, for the appellants – original claimants has submitted that the learned Tribunal has committed error in assessing the income of the deceased as the Tribunal ought to have considered the same as per rate of minimum wages of prevalent time. Further he has submitted that the learned Tribunal also committed error by not awarding consortium to each of the appellants. Hence, he has requested to allow the present appeal.

5) The learned Advocate Ms. M. V. Nanavaty, for the respondent – Insurance Company has opposed the present appeal and submitted that the learned Tribunal has properly appreciated the evidence and awarded just compensation to the appellants. Hence, she has requested to dismiss the present appeal.

6) Having heard the learned Advocates for the parties and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence based on preponderance of probabilities. The claimant no.1 has tendered the affidavit wherein all the facts of the accident have been narrated in the chief-examination and supported the claim petition and relied on the complaint at Exhibit 20, panchnama at Exhibit 21 and PM report at Exhibit 23. The involvement of the vehicle, negligence and coverage of insurance policy on the date of accident are not in dispute. As challenge is given only qua income and consortium hence the appeal is required to be decided in narrow compass. 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 ample evidence of monthly income of the deceased. In the present case the accident occurred on 19.11.2021 and during that time the deceased was earning Rs.15,000/-, whereas, the Tribunal has assessed the income of the deceased as Rs.7,500/-per month which is required to be enhanced as per minimum wages and hence, the income of the deceased is reassessed as Rs.9,500/- per month. Further, the deceased was aged 40 years and on the basis of his age the learned Tribunal has considered future prospective income as 25% and as the deceased was having 4 dependents 1/4 deduction towards pesonal and living expenses 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] which are just and proper.

7) Therefore, recalculating the income of the deceased as Rs.9,500/-and future prospect of 25% = Rs.2,375/- which comes to to Rs.11,875/- and 1/4 amount is required to be deducted as personal expenditure and living of the deceased which comes to Rs.2,969/-and the net amount comes to Rs.8,906/-. In view of above the amount under the future loss of dependency is required to be reassessed as Rs.8,906/- x 12 x 15 = Rs.16,03,080/-. Therefore, the appellants are entitled to get additional amount of Rs.3,37,500/- under the head of future loss of dependency income.

8) Further, the learned Tribunal by relying on the judgment of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700, has awarded total Rs.1,97,000/- under the 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, Rs.18,150/- towards funeral expenses. Therefore, the appellants – original claimants are entitled for additional amount of Rs.3,300/- (i.e. Rs.18,150/- - Rs.16,500/- = Rs.1,650/- towards loss of estate and Rs.18,150/- - Rs.16,500/- = Rs.1,650/- towards funeral expenses).

9) 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 learned Tribunal has committed error in awarding only Rs.40,000/- towards loss of consortium, however, in view of above judgments the appellants – original claimants being legal heirs of the deceased they are entitled for Rs.48,400/- each towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.1,93,600/- (i.e. Rs.48,400/- X 4). Therefore, the appellants are entitled for additional amount of Rs.29,600/- under the head of loss of consortium.

10) As discussed above, the appellants – original claimants are entitled to get compensation computed as under:

Heads

Awarded by Tribunal

Reassessed by this Court

Future loss of dependency

Rs.12,65,580/-

Rs.16,03,080/-

including additional amount of Rs.3,37,500/-

Loss of estate

Rs.16,500/-

Rs.18,150/-

including additional amount of Rs.1,650/-

Funeral expenses

Rs.16,500/-

Rs.18,150/-

including additional amount of Rs.1,650/-

Loss of consortium

Rs.1,64,000/-

Rs.1,93,600/-

including additional amount of Rs.29,600/- (Rs.48,400/- X 4)

Total compensation

Rs.14,62,580/-

Rs.18,32,980/-

including total additional amount of Rs.3,70,400/-

11) In view of above, as the Tribunal has awarded total compensation of Rs.14,62,580/-, however, as discussed above the appellants are entitled to get additional amount of Rs.3,70,400/-(Rs.18,32,980/- - Rs.14,62,580/-) with proportionate costs and interest as awarded by the learned Tribunal.

12) Hence, present appeal is partly allowed. The judgment and award dated 24.07.2024 passed by learned Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad, in MAC Petition No.1180 of 2021 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The respondent no.3 - Insurance Company shall deposit the said additional amount of Rs.3,70,400/- 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.

13) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.

14) Award to be drawn accordingly.