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Judgment
Hasmukh D. Suthar, J
(1) Feeling aggrieved by and dissatisfied with the judgment and award dated 07.12.2021 passed by learned Motor Accident Claims Tribunal (Aux), Mehsana, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.190/2017, the appellants – original claimants preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
(2) Heard Mr. J. M. Barot, learned Advocate for the appellants – original Claimants and Mr. Manan B. Pandya, learned counsel for respondent No.2. Though served, none appears for rest of the respondents.
(3) It is the case of the claimants that on 23.02.2017, the deceased Thakor Khengarji was going with his relative Vikramji Govindji on motorcycle bearing No.GJ-02-CF-7929 as a pillion rider from Ganget to Jitoda and at that time, one unknown vehicle came and dashed with the motorcycle of the deceased. As a result, the deceased and rider of the motorcycle both died on the spot. FIR came to be filed at Chanasma Police Station. The claim petition was filed by the legal heirs of the deceased to get compensation of Rs.18,00,000/- from the opponents. After appreciating the evidence produced on record, the learned Tribunal awarded compensation of Rs.5,30,600/- along with cost and interest @ 7.5 % p.a.
(4) 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 claimants has mainly argued that, the Tribunal has erred in considering monthly income of the deceased as Rs.3000/- on notional basis as he was serving in Viva Water Supply and doing work of pouch packaging and used to earn Rs.7,000/- p.m. Further, future prospective income is also required to be enhanced from 40 % to 50% and 19 multiplier should be applied considering the age of the deceased. The Tribunal has also wrongly deducted 1/2 instead of 1/3. Hence, he has prayed to allow the appeal as prayed for.
(5) Learned counsel for the respondent No.2- 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. Considering the law laid down in case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] the Tribunal has not committed any error in deducting ½ as personal expenditure. Therefore, he requested to dismiss the appeal.
(6) Having considered the submissions made by learned counsel for the parties and perusing the material placed on record, 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 produced deposition of witness Thakor Gomtiben Kalyanji at Exh:11, death certificate at Exh:16, Complaint at Exh:25, Panchnama at Exh:26 and inquest panchnama at Exh:27 and PM report at Exh:29. 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. From the record, it appears that the deceased was pillion rider and has nothing to do with the negligence or contributory negligence. Further, the Tribunal has considered the income of the deceased as Rs.3,000/- on national basis in absence of any evidence. As per the say of the claimants that the deceased was serving in Viva Water Supply and doing pouch packaging work and earning Rs.7,000/-p.m.
(7) 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 2017 and during that time, the deceased was working in water packaging company, and as per the minimum wages, the minimum income is required to be considered as Rs.7,000/-. Hence, the income of the deceased is reassessed as Rs.7,000/- per month. Further, the Tribunal has considered future prospective income of the deceased as 40%. As the deceased was unmarried, 1/2 deduction as personal expenditure and living of the deceased and multiplier of 18 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.
(8) Therefore, the income of the deceased is assessed at Rs.7,000/- per month. By adding 40% towards future prospects, i.e. Rs.2,800/-, the total monthly income comes to Rs.9,800/-. After deducting 1/2 towards personal and living expenses of the deceased, which works out to Rs.4,900/-, the net monthly dependency is assessed at Rs.4,900/-. In view of the above, the amount payable under the head of loss of future dependency is required to be reassessed as Rs.4,900/- × 12 × 18 = Rs.10,58,400/-. Since the Tribunal has awarded Rs.4,53,600/- under this head, the appellants are entitled to an additional amount of Rs.6,04,800/- towards future loss of dependency.
(9) Further, the Tribunal by relying on the judgment of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, has awarded total Rs.33,000/- 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.3,300/- (i.e. Rs.18,150/- - Rs.16,500/- = Rs.1650/- towards loss of estate and Rs.18,150/- - Rs.16,500/- = Rs.1650/- towards funeral expenses).
(10) 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 not properly awarding amount under the loss of consortium. 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.48,400/- for one dependent).
(11) 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
4,53,600/-
10,58,400/-
Loss of Estate
16,500/-
18,150/-
Funeral expenses
16,500/-
18,150/-
Loss of consortium
44,000/-
48,400/-
Total compensation
5,30,600/-
11,43,100/-
(12) As Rs.5,30,600/- is already awarded by learned Tribunal, the appellants – original claimants is entitled to get additional amount of Rs.6,12,500/- (Rs.11,43,100 – Rs.5,30,600/-) with proportionate costs and interest as awarded by the learned Tribunal.
(13) Hence, present appeal is partly allowed. The judgment and award dated 07.12.2021 passed by learned Motor Accident Claims Tribunal (Aux), Mehsana, in Motor Accident Claim Petition No.190/2017 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. It is provided that respondent No.2 shall deposit such additional amount of Rs.6,12,500/- 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.
(14) 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.