Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 1576 (GUJ)

Laxmanbhai Mohandas Vaishnav v. Kalubhai Hirabhai Nat

2017-09-04

R.M.CHHAYA

body2017
ORDER : R.M CHHAYA, J. 1. Heard Ms. Pooja H. Hotchandani, for Mr. R.G Dwivedi, learned Counsel for the appellants-original claimants and Ms. Vasavdatta Bhatt, learned counsel for respondent No. 2. Though served, no one appears for respondent No. 1. 2. Present appeal is directed against the judgment and award dated 31.03.2017 passed by learned Motor Accident Claims Tribunal 9 Aux.), Kheda at Nadiad, in MACP No. 260/2015 under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act” for short). 3. As the present appeal is directed especially against the quantum of awarded amount, this Court thought it fit to issue notice. Respondent No. 1 is driver of the vehicle and the liability is not denied by respondent No. 2 and therefore, with consent of learned counsel for the parties, present appeal was taken up for its final disposal. 4. The following noteworthy facts emerge from the record of the appeal:— That on 11.12.2014 at about 4:00 P.M, near Rajpur Gate, while deceased Motiben Laxmanbhai Vaishnav was engaged in purchasing vegetable from vegetable lorry, which was stationed on the road side, S.T bus bearing registration No. GJ-18-Y-7838, which was driven by respondent No. 2 came in full speed in rash and negligent manner and ran over the deceased, because of which, the deceased succumbed fatal injuries and died on the spot. 5. The appellants - claimants filed claim petition before learned Tribunal under Section 166 of the MV Act and claimed Rs. 4,00,000/-, wherein the learned Tribunal partly allowed the claim petition and was pleased to award a sum of Rs. 2,58,104/- along with 9% interest with proportionate costs. Being aggrieved by the same, the appellant Insurance Company has filed present appeal. 6. The appellants also adduced oral evidence in form of deposition of appellant No. 1 at Exh:23 and other documentary evidence such as FIR at Exh:25, Panchnama at Exh:26 and P.M report at Exh:28 and it was contended by the appellants that the deceased was housewife and earning Rs. 2,000/- per month. It was further con tended by Ms. Hotchandani that, in catena of judgments of this Court as well as Hon'ble Supreme Court, even in case of housewife, notional income has assessed and fixed, and according to learned counsel for the appellants, the same should be assessed at Rs. 3,000/-. 7. Learned counsel for the appellants contended that meagre amount of Rs. Hotchandani that, in catena of judgments of this Court as well as Hon'ble Supreme Court, even in case of housewife, notional income has assessed and fixed, and according to learned counsel for the appellants, the same should be assessed at Rs. 3,000/-. 7. Learned counsel for the appellants contended that meagre amount of Rs. 15,000/- as awarded by learned Tribunal under the head of consortium, whereas it should be at least Rs. 1,00,000/-. She further contended that under the head of loss of estate and loss of love and affection, at least Rs. 1,00,000/- should have been awarded by learned Tribunal. 8. Ms. Vasavdatta Bhatt, learned counsel for respondent No. 2 has supported the impugned judgment and award and has submitted that the learned Tribunal has committed no error and hence, the no interference is required by this Court. 9. Considering the record of the case, more particularly P.M Report at Exh:28, it appears that because of accident, the deceased received head injuries and she died on the spot. Even considering the panchnama at Exh:26, it appears that S.T Bus is almost ran over the deceased and leaving no room for herself. Even, Ms. Bhatt, learned counsel for respondent No. 2 does not deny the liability of respondent No. 2. 10. Having heard learned counsel for the parties and on perusal of the documentary evidence adduced before learned Tribunal, copies of which have been provided by learned counsel for the parties and also on re-appreciation of the same, considering the fact that the accident has occurred on 11.12.2014 and no prospective income has given, Ms. Hotchandani has rightly contended that the income is fixed only at Rs. 2,000/- per month deserves consideration. In opinion of this Court, it can safely be assessed at Rs. 2,500/- per month. 11. On perusal of the impugned judgment and award, it clearly provides that the learned Tribunal has not given benefit of prospective income though it is believed that the age of the deceased was 48 years old. Upon re-appreciation of the evidence on record and as held above, taking income of the deceased at Rs. 2,500/- per month, following the ratio laid down by Hon'ble Supreme Court in the case of Sarla Verma (Smt.) v. Delhi Transport Corporation [ (2009) 6 SCC 121 ], the appellants would be entitled to compensation under under the head of future loss of dependency as under:— Rs. 2,500/- per month, following the ratio laid down by Hon'ble Supreme Court in the case of Sarla Verma (Smt.) v. Delhi Transport Corporation [ (2009) 6 SCC 121 ], the appellants would be entitled to compensation under under the head of future loss of dependency as under:— Rs. 2500/- + Rs. 1250/- 50% Rs. 3750/- Rs. 1250/- Less 1/3rd Persona expenses. Rs. 2500/- × 12 Rs. 30,000/- p.a × 13 (as the age of deceased was 48 years) Rs. 3,90,000/- 12. Other contentions raised by learned counsel for the appellants that the conventional amount is less, at the first blush it appears to be correct. On re-appreciation of the evidence that the deceased was 48 years and housewife on the date of accident, the same does not require any alteration in the facts of the case. Hence, total compensation would be Rs. 3,90,000/- under the head of future loss of dependency and the conventional amount including funeral charges would be Rs. 50,000/-. Therefore, total comes to Rs. 4,40,000/-. 13. As Rs. 2,58,104/- is already awarded by learned Tribunal, respondent No. 2-S.T Corporation shall deposit Rs. 1,81,896/- along with proportionate costs and interest at the rate of 8 % from the date of application till its realization before the learned Tribunal within a period of 8 weeks from the date of receipt of this order. 14. For the foregoing, the appeal is partly allowed. Record and proceedings, if any, be transmitted back to the learned Tribunal forthwith. No order as to costs.