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2024 DIGILAW 265 (GUJ)

Bharatbhai Kalubhai Patolia v. Ghanshyam Palivala

2024-02-07

GITA GOPI

body2024
JUDGMENT : 1. By way of this Appeal, the Appellants-claimants have challenged the judgment and award dated 02.11.2018 passed by the learned Motor Accident Claims Tribunal (Aux.), Junagadh in M.A.C.P. No.667 of 2005. 2. The facts as getting unfolded to raise the Claim Petition before the learned Tribunal are as under :- On 05.06.2003, the appellants alongwith the deceased and their friends were proceeding as passengers in a Luxury Bus bearing Registration No.RJ-27-P-6355 owned by the respondent No.2 to visit Shrinathji, after purchasing the tickets. Their Bus had proceeded towards Ahmedabad via Nadiad on the Super Four Track National Highway. The Bus driver was driving the bus in full speed and in a rash and negligent manner. While they had reached about 10 Kms away from Nadiad, a Scorpio car bearing Registration No.GJ-3-AB-1510 was proceeding in front of the Luxury Bus in full speed and in a rash and negligent manner. The driver of the Scorpio car suddenly applied brakes, the luxury bus collided at the rear side of the Scorpio car, the Luxury bus turned turtle three-four times and fell in a pit about 30 feet deep. Injuries were sustained by others while the deceased was taken to Nadiad Hospital whereby the Doctor on duty declared the deceased as dead. A complaint was registered at Nadiad Rural Police Station as IC. R. No.55 of 2005 on the same day, the panchnama of the place was carried out and the post mortem was also carried out on the same day. 3. Learned Advocate for the appellants-claimants Mr. Nishit A. Bhalodi submitted that the deceased was doing embroidery work and was earning Rs.5,000/- per month and also had a sewing machine, the purchase receipt was produced on record, but since no books of accounts were maintained, the earnings of Rs.5,000/- could not be proved. It is further submitted that since the above fact was not appreciated, the learned Tribunal could have considered the deceased as a housewife and should have appropriately granted amount in relation to the work done by the homemaker, i.e. looking after the family, raising the children and supporting the husband. It is further submitted that the claimants, i.e. the minor children and the husband ought to have been granted consortium loss taking into consideration the decision of the Hon’ble Apex Court in the case of Magma General Insurance Co. It is further submitted that the claimants, i.e. the minor children and the husband ought to have been granted consortium loss taking into consideration the decision of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in (2018) 18 SCC 130 . 4. Countering the above arguments, learned Advocate for the respondent – Insurance Company Mr. G.C. Mazmudar submitted that the learned Tribunal has assessed the income of the homemaker @ Rs.2,000/- per month, which is just and proper since the appellants – claimants had come up with a case of earnings generated from embroidery work but the same could not be proven. Hence, in absence of such evidence, it is submitted that the compensation amount assessed by the learned Tribunal is required to be given pre-dominance. 5. Having heard learned Advocates for the respective parties, perused the records of the case, it is clear that the oral evidence given before the learned Tribunal was that the deceased was aged 28 years at the time of her death, was earning from the embroidery work and her monthly income was Rs.5,000/-. It was urged that had the deceased lived for a longer period, the earnings would have been Rs.10,000/- per month, however, the income could not be proved, except for the purchase bill of the sewing machine. The date of accident is 05.06.2005. It is also an admitted fact that the deceased was a homemaker and following the various decisions of the Hon’ble Apex Court with regard to the income of a homemaker, as also considering the date of accident, the income is assessed @ Rs.3,000/- per month. Considering the age of the deceased, 40% prospective rise in income is to be considered, i.e. 40% of Rs.3,000/- which is Rs.1,200/-. Hence, total income per month can be assessed as Rs.4,200/-. Taking into consideration dependency @ 1/3, personal expense is deducted; the dependency loss would come to Rs.2,800/-. Assessing the annual income and applying the multiplier of 17, the future dependency loss would come to Rs.5,71,200/- (Rs.2,800/- x 12 months x 17 multiplier). 6. As the claimants are two minors and the husband of the deceased, following the decision of the Hon’ble Apex Court in the case of Magma General Insurance Co. Assessing the annual income and applying the multiplier of 17, the future dependency loss would come to Rs.5,71,200/- (Rs.2,800/- x 12 months x 17 multiplier). 6. As the claimants are two minors and the husband of the deceased, following the decision of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in (2018) 18 SCC 130 , an amount of Rs.40,000/- each is to be granted. Therefore, the amount under the head of consortium loss would be Rs.1,20,000/- (Rs.40,000/- x 3 claimants). 7. The learned Tribunal has granted an amount of Rs.15,000/- each under the head of Loss of Estate and Funeral Expenses. 8. Thus, the computation can be made as under :- Details Amount (Rs.) Dependency loss 5,71,200/- Loss of Consortium 1,20,000/- Loss of Estate 15,000/- Funeral Expenses 15,000/- TOTAL 7,21,200/- 9. The learned Tribunal has awarded an amount of Rs.4,50,868/- with rate of interest @ 8% per annum, from the date of filing of the petition till the realization of the awarded amount. The enhanced amount is Rs.2,70,332/- (Rs.7,21,200/- minus Rs.4,50,868/-). 10. Considering the decision of the Hon’ble Apex Court in the case Khenyei v. New India Assurance Company Limited reported in 2015 (9) SCC 273 , the Driver of the Luxury Bus bearing Registration No.RJ- 27-P-6355 has been held 70% negligent while the Driver of the Scorpio car has been 25% negligent. The Insurance Company of the Luxury Bus is the New India Insurance Company Limited while no Insurance Company has been joined for the Scorpio Car. 11. Hence, total amount be deposited by the New India Insurance Company and thereafter, 25% of the amount to be paid by the owner/driver of the Scorpio Car be recovered by way of execution proceedings. 12. It is directed that the amount be deposited within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application. 13. It is reported that both the minor claimants have attained majority. Hence, from the compensation/enhanced amount, 80% of the amount be given to the claimant/s on verification of their identities in the proportion as declared by the learned Tribunal. 13. It is reported that both the minor claimants have attained majority. Hence, from the compensation/enhanced amount, 80% of the amount be given to the claimant/s on verification of their identities in the proportion as declared by the learned Tribunal. The remaining 20% be deposited in a Fixed Deposit Receipt (FDR) with any nationalized Bank, for a period of two years. The FDR shall be handed over to the claimant/s. Interest accruing on such FDR shall be accumulated. After two years, the total amount be given to the claimant/s, without any reference to the Court. 14. In view of the above, the Appeal is allowed and the judgment and award dated 02.11.2018 passed by the learned Motor Accident Claims Tribunal (Aux.), Junagadh in M.A.C.P. No.667 of 2005 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court/Tribunal forthwith.