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Judgment
Hasmukh D. Suthar, J
Feeling aggrieved by and dissatisfied with the judgment and award dated 02.09.2020 passed by learned Motor Accident Claims Tribunal (Aux), Bhuj, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.330/2005, 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. Hemal Shah, learned Advocate for the appellants – original Claimants and Ms. Ami Bhatt, learned counsel for respondent No.3. Respondent No.1 is reported as expired and though served, none appears for respondent No.2.
It is the case of the claimants that on 20.03.2005, while the deceased Jayantibhai Dhriubhai Varaniya was going in Tanker bearing No.GJ01-U-4688 as a cleaner from Morbi to Valia and at about 09:45 hours in night, when they reached near Vatariya village, at that time, driver of the tanker lost his control over the steering and turned turtle the tanker. As a result, the deceased got serious injuries and succumbed to it. Therefore, the claim petition was filed by the legal heir of the deceased to get compensation of Rs.9,00,000/- from the opponents. After appreciating the evidence produced on record, the learned Tribunal awarded compensation of Rs.7,15,100/- along with cost and interest @ 9 % 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 on two counts, first is that, the Tribunal has failed to award compensation under the head of loss of consortium only to claimant No.1 and also amount under the head is also not properly 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 and adequate compensation is awarded under the head of loss of consortium. 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 claimant No.5 has given his deposition at Exh:30, FIR at Exh:35, RC Book at Exh:36, PM report at Exh:39 and Election card of the deceased at Exh:50. After appreciating the evidence produced on record, the Tribunal held the driver of the tanker was 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 35 years as per the Election card produced at Exh:50.
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 2005 and during that time, the deceased was doing cleaner work in the tanker and as per the minimum wages, the minimum income is required to be considered as Rs.3,000/- p.m, which is not in dispute. Further, the Tribunal has not committed any error in considered future prospective income of the deceased as 40 % which is also not in dispute. As the deceased was married and having 8 dependents, 1/5th deduction as personal expenditure and living of the deceased and multiplier of 16 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.
Therefore, calculating the income of the deceased as Rs.3000/- and future prospect of 40% = Rs.1200/- which comes to Rs.4200/- and 1/5th amount is required to be deducted as personal expenditure and living of the deceased which comes to Rs.840/- and the net amount comes to Rs.3,360/-. In view of above, the amount under the head of loss of future dependency is required to be reassessed as Rs.3360/- x 12 months x 16 multiplier = Rs.6,45,120/-. The Tribunal has already awarded Rs.6,45,120/- under the head of future loss of dependency and hence, no additional amount under this head is required to be given.
Further, the Tribunal by relying on the judgment of Pranay Sethi (supra) has awarded total Rs.30,000/- under the two 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. Therefore, the appellants – original claimants are entitled for additional amount of Rs.6300/- (i.e. Rs.18,150/- - Rs.15,000/- = Rs.3150/-towards loss of estate and Rs.18,150/- - Rs.15,000/- = Rs.3150/- 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 Tribunal has committed error in awarding loss of consortium to only applicant No.1. However, in view of above judgments, the appellants are entitled for loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.3,87,200 (Rs.48,400/- x 8 claimants).
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
6,45,120/-
6,45,120/-
Loss of Estate
15,000/-
18,150/-
Funeral expenses
15,000/-
18,150/-
Loss of consortium
40,000/-
3,87,200/-
Total compensation
7,15,120/-
10,68,620/-
As Rs.7,15,120/- is already awarded by learned Tribunal, the appellants – original claimant is entitled to get additional amount of Rs.3,53,500/- (Rs.10,68,620 - Rs.7,15,120/-) with proportionate costs and interest as awarded by the learned Tribunal.
Hence, present appeal is partly allowed. The judgment and award dated 02.09.2020 passed by learned Motor Accident Claims Tribunal (Aux), Bhuj, in Motor Accident Claim Petition No.330/2005 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.3,53,500/- 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.