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2019 DIGILAW 869 (GUJ)

Nayee Premilaben v. Zala Pravinji Babaji

2019-10-09

PARESH UPADHYAY, R.M.CHHAYA

body2019
JUDGMENT : R.M. Chhaya, J. 1. The appellants are aggrieved and dissatisfied by the judgment and award dated 05.05.2018 passed by the Motor Accident Claims Tribunal (Auxiliary) at Mehsana in Motor Accident Claim Petition No. 03 of 2013. The original claimants have preferred this Appeal U/sec. 173 of the Motor Vehicles Act, 1988 herein after referred to as 'The Act'. 2. The Appeal was directed to be for the final disposal, hence the matter is taken up for final disposal. At this stage, Mr. Thakore, learned advocate appearing for the appellant states that the appellant No.1 - Nayee Premilaben wd./o Jitendrakumar Kantilal has expired on 01.02.2019 during the pendency of this Appeal and hence her name be deleted. Mr. Thakore, learned advocate for the appellant further states that the other appellants are the heirs and legal representatives of the deceased Nayee Premilaben - applicant No. 1. A copy of the death certificate dated 02.02.2019 along with the pedhinama is taken on record. Name of Nayee Premilaben stands deleted as the appellant. 3. The following facts emerge from the Appeal. The accident took place on 24.08.2012 near Modipur village. The record indicates that while deceased Jitubhai was driving his scooter bearing registration No. GJ-02-C-3906 and was proceedings towards the village Modipur a jeep car bearing Registration No. GJ-08-982 came from the other side being driven in a rash and negligent manner and excessive speed and dashed with the scooter. As per the record, the deceased Jitubhai sustained serious injuries and ultimately succumbed to it. It is the case of the original claimant that the deceased Jitubhai was running a barber shop and was earning Rs. 15,000/- per month and was aged 49 years on the date of the accident. The appellants - original claimants preferred claim petition as provided under Section 166 of the Act and claimed compensation of Rs. 25,00,000/-. 4. The appellants examined one of the original claimants at Exh. 60 and relied upon documentary evidence such as F.I.R. at Exh. 23, panchnama of the scene of occurrence at Exh. 24, inquest panchnama at Exh. 25, post-mortem note at Exh. 26. The Tribunal upon appreciating the evidence on record determined the income of the deceased Jitubhai at Rs. 3,000/- per month and also gave benefit of prospective income to the tune of 40% and deducted 1/4th towards his personal expenses and awarded Rs. 24, inquest panchnama at Exh. 25, post-mortem note at Exh. 26. The Tribunal upon appreciating the evidence on record determined the income of the deceased Jitubhai at Rs. 3,000/- per month and also gave benefit of prospective income to the tune of 40% and deducted 1/4th towards his personal expenses and awarded Rs. 5,67,000/- as compensation under the head of loss of dependents by applying multiplier of 15. Over and above the same, the Tribunal also granted Rs. 70,000/- as compensation under different conventional heads including funeral expenses and thus granted total compensation of Rs. 6,37,000/- and considering the manner in which the accident had taken place, attributed 20% negligence to the deceased driver of the scooter involved in the accident. Thus, granted net compensation of Rs. 5,09,600/- with 9% p.a. interest from the date of filing of the claim petition till its realization. Being aggrieved by the said judgment and award, the original claimants have preferred this Appeal. 5. Heard Mr. Yogendra Thakore, learned advocate for the appellant and Mr. Maulik Shelat, learned advocate for the respondent No. 2 - insurance company. Though served, no one appears for the respondent No. 1 - the owner of the jeep car involved in the accident. 6. Mr. Thakore, learned advocate for the appellants has taken this Court through the impugned judgment and award and has contended that the Tribunal has committed an error in considering the income of the deceased, who was a barber at Rs. 36000/- per year. Mr. Thakore, learned advocate for the appellants further submitted that even though there was no evidence of income adduced by the appellants, the Tribunal ought to have determined the income of the deceased, based upon the Minimum Wages Standard as prevailing on the date of the accident as per Minimum Wages Act. Mr. Thakore, learned advocate for the appellants, has further contended that even as per the standards to the Minimum Wages Act, the deceased Jitubhai being a barber should have been considered to be a skilled labourer and relying upon the chart of the minimum wages prescribed under the provisions of Minimum Wages Act, Mr. Thakore, learned advocate for the appellants contended that the income of the deceased should have been determined at Rs. 4980/- per month. On the aforesaid ground, Mr. Thakore, learned advocate for the appellants contended that the impugned award be modified by partly allowing the Appeal. 7. Thakore, learned advocate for the appellants contended that the income of the deceased should have been determined at Rs. 4980/- per month. On the aforesaid ground, Mr. Thakore, learned advocate for the appellants contended that the impugned award be modified by partly allowing the Appeal. 7. Per contra Mr. Maulik Shelat, learned advocate for the respondent No. 2 - insurance company has supported the impugned award. Mr. Shelat, learned advocate for the insurance company contended that no evidence was produced by the appellants with regard to the income of the deceased and the Tribunal has after appreciating the evidence on record, rightly determined the income of the deceased who was a barber in a small town at Rs. 3000/- per month. Mr. Shelat, learned advocate for the insurance company therefore contended that the Appeal being meritless deserves to be dismissed and no alteration as prayed for is required to be made in the impugned judgment and award. 8. No other or further submissions have been made by the learned counsels appearing the for the respective parties. 9. Upon considering the submissions made and on perusal of the Record and Proceedings it clearly shows that no evidence as regards income was led by the appellants except the oral deposition of one of the appellant more particularly appellant No. 5. The claim made by the appellant that the deceased Jitubhai was earning Rs. 15000/- per month as a barber is not proved in absence of any evidence much less any cogent evidence. However, the Tribunal has determined the income of the deceased Jitubhai only on guess work which is though permissible has to be based on some standards. Having regard to the fact that the deceased was having his own occupation as a barber and was also maintaining his family of 4 persons, the income of the deceased can safely be assessed based upon the minimum wages standard as fixed under the provisions of the Minimum Wages Act as prevailing on the date of the accident. As Mr. Thakore, learned advocate for the appellant has indicated the minimum wages of a skilled worker as prevailing on the date of the accident was Rs. 4980/- and in opinion of this Court such minimum wage should have been made basis for determining the income of the deceased. Having come to the aforesaid conclusion the income of the deceased is therefore determined at Rs. 4980/- and in opinion of this Court such minimum wage should have been made basis for determining the income of the deceased. Having come to the aforesaid conclusion the income of the deceased is therefore determined at Rs. 5000/- per month (rounded figure). Over and above the same, the appellants would also be entitled to increase in income by way of prospective income to the extent of 40%. As there were more than three dependents 1/4th of the said amount deserves to be deducted towards personal expenses of the deceased. In addition to the same following the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs Pranay Sethi, reported in 2017 (16) SCC 680 the appellants would also be entitled to an additional amount of Rs. 70,000/- as awarded by the Tribunal under different conventional heads, including the funeral expenses. As far as negligence is concerned the same would remain unaltered and as such Mr. Thakore, learned advocate for the appellant has not contended or challenged the same finding of the Tribunal. 10. Resultantly, the appellant would be entitled to compensation as under:- Income Per Month Rs.5000/- + 40% Prospective Income Rs.2000 = Rs.7000/- - 1/4 th towards personal expense Rs.1750/- = Rs.5250/- x 12 x 15 multiplier Rs.9,45,000/- + Conventional heads Rs.70,000/- = Rs.10,15,000/- - 20% towards negligence Rs.2,30,000/- Rs.7,85,000/- 11. The Appeal is thus partly allowed. 12. Resultantly, the original Claimants are entitled to obtain total compensation of Rs. 7,85,000/-. As the Tribunal has already awarded compensation of Rs. 5,09,600/-, the appellants - claimants are entitled to get additional amount of compensation of Rs. 2,75,400/- along with 9% interest from the date of application till the realization of compensation. Therefore, respondent No. 2 - Insurance Company shall deposit a sum of Rs. 2,75,400/- before the Tribunal within a period of three months from the date of receipt of this judgment. The impugned judgment and award stands modified to the aforesaid extend. However, there shall be no order as to costs in this Appeal. The Record and Proceedings be transmitted to the Tribunal.