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Gujarat High Court · body

2017 DIGILAW 1311 (GUJ)

Minaxiben v. Hirabhai Arjanbhai Baria

2017-07-25

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. This First Appeal is filed by the appellant under Section 173 of the Motor Vehicles Act praying for modifying the judgment and order, dated 11.10.2006 passed by the learned Judge, Motor Accident Claims Tribunal (Aux.), Third Fast Track Court, Panchmahal at Godhara in Motor Accident Claim Petition No. 888 of 1998, whereby the learned Tribunal has awarded Rs. 8,31,520/-with running interest thereon. 2. It is the case of the appellant that on 12.05.1998, when the deceased-Jayantibhai Kalubhai Patel was driving his motorcycle bearing registration No. GJ-1-AM-4584 to Vadi Gam from Muvada of Tarala on correct side, the opponent No.1 rashly and negligently came from the opposite side with his Tempo bearing registration No. GJ-7-Y-630 and dashed with the motorcycle of the deceased and thereby caused serious injuries. Thereafter, he was immediately taken to Cottage Hospital, Lunawada and he succumbed to the injuries. An FIR being I-C.R. No. 64 of 1998 to that effect came to be registered before the Lunawada Police Station. 3. Heard Mr. Arpit Kapadia, learned advocate for the appellants and Mr. Vibhuti Nanavati, learned advocate appearing for respondent No.3 Insurance Company. Rule issued by this Court is duly served upon the respondent Nos.1 and 2, however, they did not appear. 4. Mr. Arpit Kapadia, learned advocate for the appellants has submitted that the judgment award passed by the Tribunal is improper, unjust and against the provisions of law. He then contended that the learned Judge has committed serious error in calculating the future loss of dependency at Rs. 6,340/-. He further contended that while determining the loss of dependency, gross salary is required to be considered, however, the the learned Tribunal has considered the basis salary while determining the loss of dependency, which is not permissible under law. He further contended that the learned Tribunal has considered the prospective rise in income of the deceased. Therefore, he has urged to enhance the amount of compensation as such. He, therefore, submitted that the award requires to be modified as prayed for. 5. Mr. Vibhuti Nanavati, learned advocate appearing for respondent No.3 has submitted that the judgment and award passed by the learned Tribunal is just and proper. He further submitted that the learned trial Judge has rightly awarded the amount under different heads and rightly considering the income of the deceased and therefore, the same requires no interference. 6. 5. Mr. Vibhuti Nanavati, learned advocate appearing for respondent No.3 has submitted that the judgment and award passed by the learned Tribunal is just and proper. He further submitted that the learned trial Judge has rightly awarded the amount under different heads and rightly considering the income of the deceased and therefore, the same requires no interference. 6. So far as the quantum of compensation is concerned, both the learned advocates have worked out by perusing the Record and Proceedings available with them in light of the impugned award and on going through the Record and Proceedings, both the learned advocates have submitted that learned Tribunal has considered average of the basic salary of the deceased at the time of incident at Rs. 2180/- and basic salary at the time of retirement at Rs. 10,500/- while awarding compensation, which is not permissible under law. In that view of the matter, both the learned advocates have conceded to consider the gross salary of the deceased at Rs. 9110/- per month. 7. Having regard to the prospects of advancement in the future career, respecting which there is evidence on record, I will not be in error in making a higher estimate at Rs. 9,110/- as the gross income, out of which 10% is required to be deducted towards the income-tax, which comes to Rs. 8,199/-. To which 50% i.e. Rs. 4099.5/- is added to towards the future prospective income and therefore, total comes to Rs. 12,299/-. Out of the said amount, one third amount is deducted towards his personal living expenses. The final amount comes to Rs. 8,200/- per month. In the present case we can take about Rs. 8,200/- per month as gross income and if capitalised on a multiplier of 15, which is appropriate to the age of the deceased, the loss of dependency would work out to (Rs.8,200/- x 12 x 15 = 14,76,000/-. 8. Further considering the age of the deceased and other evidence produced on record, amount awarded under the loss of estate at Rs. 5,000/- is also meagre. As deceased was aged about 38 years at the time of incident, therefore, the claimants are also entitled to receive Rs. 8000/- for the loss of estate. Further, amount awarded under loss of consortium and funeral expenses are kept intact. 9. Therefore, the total compensation comes to Rs. 14,99,000/- (Rs.14,76,000/- for loss of dependency, Rs. 5,000/- is also meagre. As deceased was aged about 38 years at the time of incident, therefore, the claimants are also entitled to receive Rs. 8000/- for the loss of estate. Further, amount awarded under loss of consortium and funeral expenses are kept intact. 9. Therefore, the total compensation comes to Rs. 14,99,000/- (Rs.14,76,000/- for loss of dependency, Rs. 8,000/- for loss of estate, Rs. 10,000/- for loss of consortium and Rs. 5,000/- for funeral expenses. 10. For the reasons recorded above, appeal is partly allowed and judgment and award passed by the Motor Vehicles Act praying for modifying the judgment and order, dated 11.10.2006 passed by the learned Judge, Motor Accident Claims Tribunal (Aux.), Third Fast Track Court, Panchmahal at Godhara in Motor Accident Claim Petition No.888 of 1998 granting the compensation of Rs. 8,31,520/- is enhanced to Rs. 14,99,000/- with running interest at the rate of 7.5% from the date of application. The respondent Nos.2 and 3 are directed to deposit the excess amount of Rs. 6,67,480/- within a period of eight weeks from the date of receipt of this judgment and order. Upon deposit of the amount, the same shall be disbursed to the appellant on proper verification. Thus, award deserved to be modified to the aforesaid extent. No order as to costs. Rule is made absolute to the aforesaid extent. Records and proceedings, if any, be sent back to the trial Court, concerned forthwith.