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2019 DIGILAW 314 (GUJ)

Dharmil Chandreshkumar Doshi v. Parshottambhai Mohanlal Kadiya

2019-04-05

R.M.CHHAYA, S.H.VORA

body2019
JUDGMENT : R.M. Chhaya, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 14.09.2009 passed in MACP No. 469 of 1996 passed by the Motor Accident Claims Tribunal, Ahmedabad, the appellants-original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 ((hereinafter referred to as the "Act" for short). 2. The factual matrix which can be culled out from the record of the appeal as under: <2.1. That the accident took place on 3.11.1995 at about 3 p.m. near Fatehnagar AMTS Bus Stop. It is the case of the original claimants that deceased Varshaben was driving her Kinetic Honda in a moderate speed on the left side of the road and when she reached Fatehnagar AMTS Bus stop, the ST Bus being driven in full speed in rash and negligent manner dashed from the behind and deceased Varshaben was flung away and the Wheel of the ST Bus run over. It is the case of the claimants that because of injuries received deceased Varshaben succumbed to the injuries. It deserve to be noted that initially the original claimants preferred Claim Petition for Rs. 2 lakhs, which was subsequently enhanced to Rs. 72,00,000/-. The appellants examined one Nilaben at Exh. 34 and Alkaben Shah at Exh. 38 and appellant No. 2 examined himself at Exh. 25. The claimants further relied upon the documentary evidence such as FIR at Exh. 27, Panchnama at Exh. 28, inquest panchnama at Exh. 29, Postmortem Report at Exh. 30 and salary certificate at Exh. 42 and 48. That various contentions regarding income, multiplier and even occurrence of the accident were taken by the parties before the Tribunal. The Tribunal after appreciating the evidence on record, partly allowed the claim petition and awarded compensation of Rs. 12,46,128/- with 9% interest from the date of filing of the claim petition till its realization. 2.2. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is filed by the appellants" original claimants. 3. Heard Mr. Sandip Shah, learned advocate for the appellants" original claimants and Ms. Bhatt, learned advocate for the respondent Gujarat State Road Transport Corporation and also perused the Record and Proceedings of the case. 4. Mr. 3. Heard Mr. Sandip Shah, learned advocate for the appellants" original claimants and Ms. Bhatt, learned advocate for the respondent Gujarat State Road Transport Corporation and also perused the Record and Proceedings of the case. 4. Mr. Shah learned advocate for the appellants has raised one contention to the effect that the Tribunal has committed an error in not granting any rise in income by way of prospective income. Mr. Shah contended that it is a matter of record which has been proved that deceased was working as clerk in Reserve Bank of India and was earning Rs. 9500/- per month, for which, Mr. Shah learned advocate for the appellants has relied upon the salary certificate at Exh. 48. On the aforesaid ground, it was therefore, contended by the learned advocate for the appellants that appeal be allowed to the said extent and award be modified. 5. Per contra, Ms. Bhatt, learned advocate for the respondent Gujarat State Road Transport Corporation has supported the impugned judgment and award passed by the learned Tribunal and has submitted that considering the date of accident to be of 3.11.1995, the Tribunal has rightly not granted any prospective income. According to Ms. Bhatt learned Tribunal has correctly assessed the income and has granted adequate compensation of Rs. 12,46,128/- that too with interest at the rate of 9%, which does not require any interference. 6. Upon considering the submissions made on behalf of the learned advocates for the respective parties and on perusal of the Record and Proceedings of the case and upon examining the grounds which are raised by Mr. Shah, learned advocate for the appellants though the accident has occurred on 3.11.1995, the appellants original claimants would be entitled to increase in income by way of prospective income. The contention raised by Ms. Bhatt, learned advocate for the respondent that as the accident is of 3.11.1995, no prospective income is required to be given, deserves to be negatived. Following ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi reported in 2017 (6) ALT 60 (SC) : 2017 9(2) An.W.R. 529 (SC) : (2017) 16 SCC 680 , the appellants would be entitled to prospective income to the extent of 50%. 6.1. Following ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi reported in 2017 (6) ALT 60 (SC) : 2017 9(2) An.W.R. 529 (SC) : (2017) 16 SCC 680 , the appellants would be entitled to prospective income to the extent of 50%. 6.1. Having come to the aforesaid conclusion, the appellants would be entitled to compensation under the head of loss of dependency as under: "Rs. 9500/- per month (income) + Rs. 4750/- (50% prospective income) = 14250/- 1425/- (10% income tax)= 12825/- (1/3rd towards personal expenses = Rs. 4275/- = 8550/- pm X 12 = 1,02,600/- p.a" 6.2. The record also indicates that the deceased was aged 36 years on the date of accident and therefore, the appellants" claimants would be entitled to multiplier of 15 and thus, the appellants would be entitled to compensation of Rs. 15,39,000/- under the head of loss of future dependency. 6.3. The Tribunal has awarded Rs. 15000/- under the head of loss of company and consortium, Rs. 10,000/- under the head of loss of estate and Rs. 5000/" under the head of funeral expenses, following ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the appellants would be entitled to Rs. 70,000/- as compensation under the aforesaid conventional heads. Thus, appellants would be entitled to compensation as under: Particulars Amount (Rs.) Loss of dependency 15,39,000/- Convensation 16,09,000/- 6.4. Thus, the appellants" claimants would be entitled to total compensation of Rs. 16,09,000/-. As the Tribunal has awarded an amount of Rs. 12,46,128/-, the respondent Gujarat State Road Transport Corporation shall deposit the additional amount of Rs. 3,62,872 with 9% interest and proportionate costs from the date of filing of the claim petition till its realization. The respondent Gujarat State Road Transport Corporation shall deposit the additional awarded amount with the Tribunal within a period of three months from the date of receipt of order. Appeal is thus, partly allowed. The impugned judgment and award stand modified to the aforesaid extent. However there shall be no order as to costs. The record and proceeding of the case be sent back to the learned Tribunal forthwith.