Kamlaben Virabhai Solanki v. Ajaykumar Manilal Patel
2020-02-06
N.V.ANJARIA
body2020
DigiLaw.ai
ORDER : Heard learned advocate Mr. Nishit Bhalodi for the appellants-original claimants and learned advocate Mr. K.V. Gadhia for respondent No.2 insurance company. Though Rule is served upon respondent No.1, he has chosen not to appear. 1.1 Since limited contention is raised to make the compass of the controversy narrow, the Appeal could be decided on legal principles alone for which the Record & Proceedings were not necessary to be called for. 2. The present Appeal by the original applicants filed under Section 173 of the Motor Vehicles Act, 1988 is directed against judgment and award dated 28th December, 2008 passed by the Motor Accident Claims Tribunal (Aux.) Panchmahals at Godhra in Motor Accident Claims Petition No.708 of 2016. 2.1 While the Tribunal awarded compensation of Rs.07,78,750/- with interest at 9% from the date of claim petition till realisation, the present Appeal is preferred by the heirs and legal representative of deceased who died in the vehicular accident, seeking enhancement in the amount of compensation. 3. It was on 15th July, 2016 that the accident occurred when deceased Virabhai Manabhai Solanki was riding on his bicycle from Morva to Gurkhal, when at around 1800 hours, opponent No.1 driving Echo car bearing Registration No.GJ-17-AH-9830 rashly and at excessive speed, dashed with the deceased losing control. The grievous accident suffered by the bicycle rider resulted into death. 3.1 Claim petition was filed by the heirs of the deceased. The deceased-victim was doing agricultural work and also engaged in the animal husbandry work. He was aged 44 years and had wife and four children. It was claimed that he was earning Rs.07,500/- every month. The opponent insurance company with which the offending car was insured, filed its written statement at Exh.30. 3.2 The Tribunal considered the aspect of negligence as well as quantum. On the basis of the complaint (Exh.17), Panchnama (Exh.18) and other documentary evidence, it was held by the Tribunal that driver of the offending car who did not enter the box, was responsible for the accident having driven his vehicle in rash and negligent manner. 3.3 On the aspect of quantum, the applicant deposed at Exh.16 to claim that deceased was earning Rs.07,500/- per month by doing the agriculture and animal husbandry work. In the view of the Tribunal, the claimants did not produce cogent documentary evidence to prove the income as claimed.
3.3 On the aspect of quantum, the applicant deposed at Exh.16 to claim that deceased was earning Rs.07,500/- per month by doing the agriculture and animal husbandry work. In the view of the Tribunal, the claimants did not produce cogent documentary evidence to prove the income as claimed. The Tribunal took the notional income to Rs.04,500/- per month. On the basis of the decision the Apex Court in Sarla Verma v. Delhi Transport Corporation [(2006) 9 SCC 121], the multiplier of 14 was adopted considering the age of the deceased. The Tribunal thereafter referred to the decision of the Supreme Court in National Insurance Company Limited v. Pranay Sethi [ (2017) 16 SCC 680 ] added 25% towards prospective income loss as the victim was aged between 40 to 50 years. Figure of Rs.5625/- (Rs.4500 + ¼ that is Rs.1125/-) was arrived at and applying the multiplier as above, compensation of Rs.07,08,750/- was arrived at. Added thereto was the amount of loss of consortium, loss of funeral expenses and loss of estate totaling Rs.70,000/- to make the total compensation of Rs.07,78,750/- which came to be awarded with 9% interest. 4. The only aspect raised and argued on behalf of the appellants for enhancing the amount of compensation, was that income of Rs.04,500/- was quite on lower side. It was submitted that the accident occurred in the year 2016, therefore even if the Tribunal was of the opinion that the evidence was not available to accept the claim of income of Rs.07,500/-, the income ought to have been taken on the basis of minimum wages amount prevalent in the year of accident, that is in the year 2016. 5. The above submission has substance. It is true that the Tribunal find dearth of evidence to accept the claim of income of the deceased to be at Rs.07,500/- per month, applying the principle that the minimum wage should be adopted as income in absence of any other proof of income, and further considering the aspect that the deceased was doing agricultural work and also the animal husbandry related work, on the date of accident his minimum wage could be reasonably taken as Rs.07,000/- per month. Having considered the facts, the Court is of the view that the Tribunal committed an error in taking the monthly income at only Rs.04,500/- per month and it ought to have been taken as Rs.07,000/- per month.
Having considered the facts, the Court is of the view that the Tribunal committed an error in taking the monthly income at only Rs.04,500/- per month and it ought to have been taken as Rs.07,000/- per month. 5.1 Applying the monthly income of the deceased as above, the compensation would have to be arrived at. Since the deceased had four children, as per Pranay Sethi (supra), the prospective income should be taken as 25% which would come to Rs.01,750/-. Therefore, total amount of Rs.08,750/- from which one-fourth would be required to be deducted towards amount of personal expenses, which would be Rs.02,187.50. The multiplier of 14 is properly adopted by the Tribunal following the principles in Sarla Verma (supra). The total future loss therefore would come to Rs.11,02,500/- (Rs.8750- Rs.2187.5=Rs.6562.5X12X14). The amount of Rs.70,000/- towards conventional heads, as per the guidelines in Pranay Sethi (supra) would be added to make the total compensation of Rs.11,72,500/-. 5.2 The Tribunal has awarded Rs.07,78,750/-. Therefore, the claimants could be entitled to the additional amount of Rs.03,93,750/-. This amount will be payable with 9% interest to the claimants, calculated from the date of claim petition till realisation. 6. Judgment and award dated 28th December, 2008 passed by the Motor Accident Claims Tribunal (Aux.) Panchmahals at Godhra in Motor Accident Claims Petition No.708 of 2016 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above. 7. The Appeal succeed in part. The disbursal of the additional amount as above shall be after proper identification of the claimants and following procedure, by issuing the account payee cheque for the proportionate amount.