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2022 DIGILAW 359 (GUJ)

SUMITRABEN WD/O GULABBHAI SURSINGBHAI @ BABUBHAI RATHWA v. RAHIMBHAI MOHAMMEDBHAI BANDIBARIYA

2022-03-07

ASHOKKUMAR C.JOSHI

body2022
JUDGMENT : ASHOKKUMAR C. JOSHI, J. 1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 arising out of the judgment and award dated 22.02.2012 rendered by the learned Motor Accident Claims Tribunal (Main), Panchmahals at Godhra (the Tribunal) in Motor Accident Claim Petition No. 1294 of 2008 (claim petition), whereby, the Tribunal was pleased to award compensation of Rs. 4,33,000/- together with simple interest at the rate of 9% per annum from the date of claim petition till realization against the total compensation of Rs. 15 lakh with interest and cost as claimed by the appellants-original claimants towards the death of the deceased. Accordingly, the appellants have preferred this appeal for enhancement of compensation. 2. Since the facts of the case are not in dispute, the Court deems it proper not to discuss the same. 3. Heard, learned advocate Mr. Mohsin Hakim for learned advocate Mr. MTM Hakim for the appellants and learned advocate Mr. Rushang D. Mehta for the respondent No. 3 at length. Though served, nobody appears for the respondent No. 1 and 2, who are the driver and the owner of the offending vehicle. Since, the liability was not in dispute, the Court proceeded with the matter. 4. The learned advocate for the appellants submitted that the Tribunal has materially erred in awarding the compensation towards the death of the deceased inasmuch as, against the claim of Rs. 15 lakh, the Tribunal has awarded a meager amount of Rs. 4,33,000/-. He submitted that the Tribunal has erred in awarding only 2/3rd amount out of the income of the deceased towards dependency benefit. He submitted that the Tribunal has failed to consider the fact that the deceased had five dependents and hence, it ought to have awarded 9/10th amount out of the total income of the deceased as dependency benefit. 4.1 The learned advocate for the appellants further submitted that the Tribunal has also erred in adopting the multiplier of 17 for the reason that considering the age of the deceased i.e. 22 years, the multiplier of 18 ought to have been considered by the Tribunal. 4.2 It is further submitted that on one hand the Tribunal has awarded a petty amount of Rs. 4.2 It is further submitted that on one hand the Tribunal has awarded a petty amount of Rs. 10,000/- each towards the Loss of Estate and the Loss of Consortium, the Tribunal, on the other hand has erred in not awarding any amount towards loss of expectation of life and loss of love and affection. 4.3 Moreover, it is submitted that the Tribunal has also erred in awarding interest at the rate of 7.5% only. 4.4 Relying upon a recent decision of the Apex Court in New India Assurance Co. Ltd. and Others vs. Somwati and Others, (2020) 9 SCC 644 , the learned advocate for the appellant has urged to enhance the compensation and thereby, allow this appeal. 5. Per contra, while opposing the present appeal, the learned advocate for the respondent- insurance company submitted that in view of settled law laid down by the Apex Court in the decisions in Sarla Verma and Others vs. Delhi Transport Corporation and Others, MANU/SC/0606/2009 and National Insurance Co. Ltd. vs. Pranay Sethi and Others, MANU/SC/1366/2017, the Tribunal has rightly awarded the compensation considering the income of the deceased @ Rs. 3,000/- per month, under different heads and accordingly, this appeal being bereft of any merits, deserves to be dismissed. 6. Regard being had to the submissions made and considering the impugned judgment and award so also the material available on record vis-a-vis the decisions relied upon by the learned advocate for the respective parties, it appears that for the death of the deceased, the Tribunal has awarded compensation of Rs. 4,33,000/- under different heads. So far as the facts of the accident as well as the income of the deceased are concerned, there is no dispute. The learned advocate for the appellants has submitted that the Tribunal has awarded a meager amount towards different heads. Further, it is submitted that the Tribunal has wrongly applied the multiplier of 17 instead of 18, considering the age of the deceased. Further, it has been submitted that the Tribunal has wrongly deducted 1/3rd amount towards expenses of the deceased while counting the dependency benefits. In this regard, if the compensation awarded by the Tribunal is referred to, it can be summarized as under: Head Amount Loss of Dependency Benefit Rs. 4,08,000/- Loss of Estate Rs. 10,000/- Loss of Consortium Rs. 10,000/- Funeral Expenses Rs. 5,000/- Total Rs. In this regard, if the compensation awarded by the Tribunal is referred to, it can be summarized as under: Head Amount Loss of Dependency Benefit Rs. 4,08,000/- Loss of Estate Rs. 10,000/- Loss of Consortium Rs. 10,000/- Funeral Expenses Rs. 5,000/- Total Rs. 4,33,000/- 6.1 The Court has considered the decision of the Apex Court in Somwati and Others (supra), wherein, the Court, relying upon a decision of the Hon’ble Three-Judge Bench in United India Insurance Co. Ltd. vs. Satinder Kaur alias Satvinder Kaur and Others, MANU/SC/0500/2020, has accepted the formula of Spousal Consortium, Parental Consortium and Filial Consortium, to be paid @ Rs. 40,000/- each. The Court, in the said decision, however, did not accept award of compensation under the head of Loss of Love and Affection and comprehended the same under the head of Loss of Consortium. In the case on hand, the Tribunal has awarded compensation of Rs. 10,000/- under the head of Loss of Consortium and accordingly, the same is required to be enhanced as aforesaid. 6.2 Further, considering the Second Schedule appended to the MV Act as well as the decision of the Apex Court in Erudhaya Priya vs. State Express Transport Corporation Ltd. MANU/SC/0545/2020, wherein, relying upon the decision in Sarla Verma (supra), for the age group of 15-25, multiplier of 18 is held to be adopted and thus, considering the age of the deceased in the case on hand, which was 22 years at the relevant time, the multiplier of 18 is required to be adopted instead of 17 as adopted by the Tribunal. 6.3 Moreover, in view of the decision of the Apex Court in Pranay Sethi (supra) the compensation awarded by the Tribunal under the heads of Funeral Expenses etc. is also required to be enhanced as laid down therein. Further, considering the dependents, which are five in number, 1/4th amount was required to be deducted towards the expenses of the deceased, instead of 1/3rd as deducted by the Tribunal. 6.4 Thus, in view of the above, present appeal requires to be allowed and is accordingly, allowed in part. The appellants-original claimants are entitled to following compensation under the different heads as narrated herein below and to that extent, the impugned judgment and award stands modified: Head Granted by Tribunal (Rs.) Required to be granted (Rs.) Remarks Income of the deceased p.a. 36,000/- (Rs. 3,000 p.m. x 12) 36,000/- (Rs. The appellants-original claimants are entitled to following compensation under the different heads as narrated herein below and to that extent, the impugned judgment and award stands modified: Head Granted by Tribunal (Rs.) Required to be granted (Rs.) Remarks Income of the deceased p.a. 36,000/- (Rs. 3,000 p.m. x 12) 36,000/- (Rs. 3,000 p.m. x 12) Future --- 14,400/- (Rs. 36,000 x 40%) Total (A) 36,000/- 50,400/- Dependency Benefit 24,000/- [deducting 1/3rd from (A)] 37,800/- [deducting 1/4th from (A)] Multiplier 17 18 Loss of Dependency 4,08,000/- (24,000 x 17) 6,80,400/- (37,800 x 18) Loss of Estate 10,000/- 15,000/- Loss of Consortium 10,000/- 2,00,000/- Funeral Expense 5,000/- 15,000/- Total Compensation 4,33,000/- 9,10,400/- 6.5 Thus, the claimants shall be entitled for compensation of Rs. 9,10,400/- towards the death of the deceased. Further, the claimants shall be entitled for simple interest at the rate of 6% per annum on such enhanced amount of compensation viz. Rs. 4,77,400/- (Rs. 9,10,400-4,33,000). The rest of the judgment and award shall remain intact. R&P, if received, be sent back forthwith.