Sipatiyabhai @ Chhipatiyabhai Hatiyabhai Gamit vs Palabhai Shivabhai Samla

N.V.Anjaria, J

Notice for final disposal was issued in the captioned Appeal on 29th January, 2020.

1.1 Since the ground raised and issue arising in the First Appeal could be treated on legal principles laid down in National Insurance Company Limited

v. Pranay Sethi [(2017) 16 SCC 680], the appeal was taken up for final consideration with consent of learned advocates appearing for the parties.

Presence of respondent Nos.1 and 2 was not considered necessary who were the driver and owner respectively.

Heard learned advocate Mr.Hiren Modi for the appellants-claimants and learned advocate Mr.Ajay Mehta for respondent No.3 insurance

company.

Present First Appeal preferred under Section 173 of the Motor Vehicles Act, 1988 by the appellants is directed against the judgment and award

dated 29th July, 2015 passed by Motor Accident Claims Tribunal (Main), Tapi at Vyara in Motor Accident Claims Petition No.60 of 2013, whereby

the Tribunal awarded to the claimants Rs.03,51,000/- with interest at the rate of 8% from the date of application till realisation. The appellants seek

enhancement in the amount of compensation.

3.1 The proceedings before the claims tribunal arose pursuant to accident which took place on 14th July, 2006 at about 08.00 p.m. When deceased

Rangabhai Sipatiyabhai alias Chhipatiyabhai Gamit was passing from National Highway No.6 near Village Jamki, Taluka Uchchhal by driving his

Rickshaw No.GJ-19-U-5673, respondent No.1 driving his Truck bearing Registration No.GJ-7-T-5773 owned by respondent No.2, came rashly and

negligently and dashed with the Rickshaw. Due to the accident, the Rickshaw got compressed and the said Rangabhai Sipatiyabhai alias

Chhipatiyabhai Gamit died on the spot. Heirs of the deceased filed claim petition under Section 166 of the Act seeking compensation of Rs.05,00,000/-

from the respondents.

3.2 The claims tribunal proceeded with the adjudication of the claim petition. On evidence, the Tribunal held that there was no evidence showing the

negligence of the rickshaw driver in the accident in which the rickshaw was totally damaged. The Tribunal held the Truck Driver to be 100%

negligent. It proceeded with the assessment of quantum of compensation. Rs.03,06,000/- was awarded for loss of dependency, Rs.35,000/- towards

loss of love and affection and towards funeral and other expenses Rs.10,000/- was awarded, making the total compensation of Rs.03,51,000/-.

Pressing for enhancement in the compensation, it was submitted on behalf of the appellants that the Tribunal failed to consider the prospective

income and did not follow the guidelines provided in Pranay Sethi (supra) in that regard.

Adverting to the facts of the case to appreciate the plea of enhancement, deceased was aged 25 years at the time of accident which was the age

rightly taken by the Tribunal on the basis of the P.M. Note (Exh.21) in absence of any other evidence produced regarding age. The Tribunal was also

justified in applying the multiplier of 17 having regard to the age of deceased, which was in consonance with the law laid down by the Apex Court in

the case of Sarla Verma v. Delhi Transport Corporation [(2006) 9 SCC 121]. As far as monthly income of the deceased was concerned, the Tribunal

computed the income at Rs.03,000/-, since the evidence did not forth-came to indicate the income. In the circumstances, the Tribunal was justified in

putting the income of the deceased at Rs.03,000/- per month. The Tribunal deducted one-half towards personal expenses to proceed to calculate the

final compensation awarded as above.

5.1 It was on two counts that the Tribunal fell in error in arriving at the figure of total compensation. While the income of Rs.03,000/- was assessed,

the Tribunal fail to apply the prospective income which ought to have been taken at 40%, that is Rs.01,200/-. The guidelines in Pranay Sethi (supra) in

this regard mentioned in paragraph 59.4 that where the deceased happens to be self-employed, addition of 40% of the established income would be

warranted where the deceased below the age of 40 years towards prospective income. Therefore, Rs.01,200/- would be added in Rs.03,000/- to

arrive at a figure of Rs.04,200/- before 50% personal expenses could be deducted from the said amount of Rs.04,200/-. The multiplier of 17 will be

applied to the amount of Rs.02,500/- per month arrived as above and multiplying the same by 12, the total figure of which would obtain would be

Rs.04,28,400/-. In that, compensation computed under the conventional heads would be added.

5.2 The Tribunal has committed a further error in awarding Rs.45,000/- towards loss of estate, loss of love and on the head of funeral expenses

respectively. In view of the guidelines in paragraph 59.8 wherein it is stated that the reasonable figures on conventional heads, namely loss of estate,

loss of consortium and funeral expenses shall be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively, the said principle has to be adopted by

awarding Rs.15,000/-towards loss of estate and Rs.15,000/- towards funeral expenses. Since the deceased was bachelor, entitlement towards loss of

consortium would not be there. Therefore, the Tribunal ought to have awarded Rs.30,000/- total under the said heads.

Thus, in the total amount of Rs.04,28,000/-, Rs.30,000/- would be added under the conventional heads to make the total compensation payable to the

appellants-claimants to the tune of Rs.04,58,400/-. The Tribunal awarded Rs.03,51,000/-, therefore appellants would be entitled to get the enhanced

compensation to the extent of Rs.01,07,400/-, which they will get with interest at the rate of 8% from the date of application till realisation.

In view of above, the judgment and award dated 29th July, 2015 passed by Motor Accident Claims Tribunal (Main), Tapi at Vyara in Motor

Accident Claims Petition No.60 of 2013 shall stand modified to the aforesaid extent by holding that the appellants-claimants are entitled to get the

additional compensation of Rs.01,07,400/- with interest on the said amount at the rate of 8% from the date of application till realisation. Respondent

No.3 insurance company is directed to deposit the aforesaid amount within eight weeks from today. The additional amount may be paid to the

claimants in equal proportion by account payee cheque, after proper identification and following the due procedure.