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2024 DIGILAW 537 (GUJ)

Ayubbhai Gotumiya Tank v. Rajabsha Kalusha Shaikh

2024-03-14

GITA GOPI

body2024
JUDGMENT : GITA GOPI, J. 1. The challenge has been given to the judgment dated 31.01.2007 passed by Motor Accident Claims Tribunal (Auxi.) Surat in M.A.C.P. No. 916 of 1989. 2. Advocate Mr. Piyush Trivedi for Mr. Pratik B. Barot, learned advocate for the appellants, submitted that the Tribunal has erred by not granting prospective rise in income. Mr. Trivedi submitted that income was required to be considered in right perspective, and the multiplier, as laid down in case of Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , is required to be followed. 3. Advocate Mr. Trivedi further submitted that consortium loss has not been assessed by the Tribunal, which required to be granted to the dependents as per judgment of Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Others, (2018) SCC 130 : 2018 ACJ 2782 . 4. Per contra, Mr. G.C. Mazmudar, learned advocate for the Insurance Company submitted that the Tribunal has considered actual income of the deceased as Rs.850/- however, no evidence has been produced before the Tribunal to consider the aspect of rise in income. 5. The deceased was working as a conductor on Truck No. GRW-3066, and the accident occurred on 11.08.1989, when they were going towards Shahpur, Maharashtra, and at about 5:30 in the morning, when the Truck came to Madhur Hotel, near Moti Naroli, the opponent no. 1, driver of truck, heard some noise at the back side of the Truck, and, therefore took his truck on the Kachha road and parked it there. The driver was cordoning the vehicle by putting stones and deceased was applying jack on the back side of the truck. It is stated that, at that time, opponent no. 4, driver of Truck No. GRN-4994, which was of ownership of opponent no. 5, came in full speed, rashly and negligently and dashed with the parked truck, due to which tyre of said truck ran over the head of deceased. 6. The Tribunal after assessing the evidence has considered opponent no. 4, driver of Truck No. GRN-4994, negligent for the accident. The claimants had pleaded before the Tribunal that deceased was working as a conductor in the Truck and was receiving Rs. 1,850/- as a salary and Rs. 25/- per day as allowance, if had to go out of station. 6. The Tribunal after assessing the evidence has considered opponent no. 4, driver of Truck No. GRN-4994, negligent for the accident. The claimants had pleaded before the Tribunal that deceased was working as a conductor in the Truck and was receiving Rs. 1,850/- as a salary and Rs. 25/- per day as allowance, if had to go out of station. The claimant had produced certificate, Exh.53 and 54 to show the earning of the deceased. The Tribunal has observed that, had the deceased been alive, he would have earned Rs. 2,000/- per month in future and considering the circumstances had assessed the income of Rs. 850/- per month. 7. In line with the judgment of National Insurance Company Ltd. vs. Pranay Sethi and Others, AIR 2017 SC 5157 , 40% prospective rise in income is required to be assessed in the actual income of Rs. 850/-. Hence, the monthly income would come to Rs. 1,190/- [850 + 340 (40% of 850)]. The dependents are four in number, and, therefore 1/4th deduction is required to be made as personal expense of the deceased; thus the yearly future loss would come as under: Actual Income 850/- Prospective Income 1,190/- [850 + 340 (40% rise)] 1/4th Deduction 1,190/4 = 297.50 (rounded off Rs. 297/-) Yearly Future loss 10,716/- [1,190 - 297 = 893 x 12] 7.1 The multiplier applied would be 17; hence, the dependency loss would come to Rs. 1,82,172/- (10,716 x 17). Thus, accordingly the claimants would be entitled to Rs. 1,82,172/- as dependency loss. 8. The deceased died in the accident, hence, the amount of Rs. 20,000/- granted under the head of pain, shock and suffering with loss to estate would require modification, as the same has to be granted in view of the judgment of National Insurance Company Ltd. v. Pranay Sethi and Others (supra). Since the deceased died on the spot, no amount would be granted under the head of pain, shock and sufferings. The Tribunal has also not appropriately considered the amount under the head of funeral expenses. Thus, in accordance to the judgment of National Insurance Company Ltd. vs. Pranay Sethi and Others (supra), Rs. 15,000/- each is granted for funeral expense and loss to estate. 9. Claimants at the time of filing of claim petition were widow, two minors and aged mother. Thus, in accordance to the judgment of National Insurance Company Ltd. vs. Pranay Sethi and Others (supra), Rs. 15,000/- each is granted for funeral expense and loss to estate. 9. Claimants at the time of filing of claim petition were widow, two minors and aged mother. It is stated that now mother - Lailaben is no more and, thus in accordance to the judgment of Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Others, (2018) SCC 130 : 2018 ACJ 2782 , Rs.40,000/- is granted to three of the claimants; thus, the amount under the head of consortium loss would come to Rs. 1,20,000/- (40,000 x 3). 10. In view of the above, compensation under different heads would be: Heads Amount Loss of Dependency Rs. 1,82,172/- Consortium Loss Rs. 1,20,000/- Funeral Expenses Rs. 15,000/- Loss of Estate Rs. 15,000/- Total Rs. 3,32,172/- 11. The Tribunal has awarded total compensation as Rs. 1,38,200/-. Now, the claimant would be entitled to additional amount of Rs. 1,93,972/- (3,32,172 - 1,38,200) as enhanced compensation at the interest rate of 7.5% from the date of claim petition till its realization. The enhanced amount be deposited before the concerned Tribunal within Eight Weeks from the date of receipt of writ of this order. 12. In the result, the appeal is partly allowed. The impugned judgment and award dated 31.01.2007 passed by Motor Accident Claims Tribunal (Auxi.) Surat in M.A.C.P. No. 916 of 1989 stands modified to the aforesaid extent. No order as to costs. 13. The claim petition is of the year 1989. Now, the minors would have turned major, hence, in view of the said fact, let 60% amount be paid to claimant no. 1 and rest of 40% equally be apportioned and paid to claimant nos. 2 and 3 on proper verification of identity by Account Payee Cheque/NEFT/RTGS. 13.1 Record and Proceedings be sent back to the concerned tribunal.