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2024 DIGILAW 821 (GUJ)

Vitthalbhai Karamshibhai Pipaliya v. Rajeshbhai A Agraval

2024-04-09

GITA GOPI

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JUDGMENT : 1. All these three first appeals have been raised against the common judgment decided in MACP No.22 of 2017, MACP No.23 of 2017 and MACP No.24 of 2017 dated 30/11/2018 by the Motor Accident Claims Tribunal (Auxiliary), Bhavnagar at Mahuva. 2. A challenge is given by the heirs of the deceased as the claimants to the claim petitions. 3. The facts of the accident as noted by the Tribunal suggest that on 04/02/2017, at about 12:00 noon, all the deceased were travelling in Car bearing registration no. GJ- 5JD-9047 and were going to Gidardi from Surat. The car was driven by deceased Bhadreshbhai Vitthalbhai who is connected with the matter of MACP No.23 of 2017. It was stated by the claimants that he was on the correct side of the road and when they reached the place of accident between Rohisa and Longadi, opponent no.1 driving tanker bearing registration no.GJ-12-AU-9974 in rash and negligent manner, in full speed came on the wrong side of the road and dashed the car. As a result of the accident, all died during the treatment. The complaint was registered at Bagdana Police Station as I-CR No.4 of 2017. 4. The Tribunal, after consideration of the evidence on record, had concluded that accident had taken place because of gross negligence on part of the driver of the tanker no.GJ- 12-AU-9974. Thus, answered issue no.1 in affirmative in all the claim petitions. 5. Decision of MACP No.22 of 2017 is challenged by First Appeal no.2679 of 2021, MACP No.23 of 2017 is to put to challenge in First Appeal No.2579 of 2021, while MACP No.24 of 2017 is challenged in First Appeal No.1102 of 2020. 6. In MACP No.22 of 2017 (connected qua First Appeal No.2679 of 2021), the deceased was aged 23 years, at the time of the accident and was serving in Response IT Solution and it was urged that he was getting salary of Rs.20,000/- per month. The Tribunal had found that the employment letter issued by Response IT Solution at Exh.34 was not proved and, therefore, found that it did not inspire confidence. Further, the Tribunal was of the view that the same could not be relied upon, since no authorized person of the Response IT Solution was examined to prove the income and therefore, considered the income as Rs.7,000/- per month. Further, the Tribunal was of the view that the same could not be relied upon, since no authorized person of the Response IT Solution was examined to prove the income and therefore, considered the income as Rs.7,000/- per month. The fact of the employment at Response IT Solution cannot be denied in view of the employment letter Exh.34. The salary could not be proved, however, taking into consideration the date of accident and the income drawn at the relevant time by those equally placed with the judicial note taken accordingly, this Court is of the view that Rs.11,000/- income, if assessed would be justifying the fact of the deceased employment at Response IT Solution. That the income of Rs.11,000/- annually, considering the age as 23 years, in accordance with the judgment of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 , 40% rise in income has to be assessed. Thus, the income would be Rs.1,84,800/- (Rs.11,000/- x 12 = Rs.1,32,000/- + 40% rise (Rs.52,800/-)). The deceased died unmarried, hence, half of the amount would be deducted for personal expenses. The dependency yearly would come to Rs.92,400/- and applying the multiplier of 18, dependency loss would be Rs.16,63,200/-. 7. Both the parents would be entitle for the amount of consortium loss as per the decision of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130 . Hence, Rs.80,000/- is granted under the said head. Medical expenses of Rs.1,36,655/- has been proved at Exh.49. In view of the judgment of Pranay Sethi (supra), Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses is just amount to be granted. 7.1. Hence, total calculation of the compensation would come as under: Rs.16,63,200/- Loss of dependency Rs. 80,000/- Consortium loss Rs. 1,36,655/- Medical bills Rs. 15,000/- Loss to estate Rs. 15,000/- Funeral expenses Rs.19,09,855/- Total 7.2. As the Tribunal has granted, Rs.12,25,100/-, the enhanced amount would come to Rs.6,84,755/-. 8. In MACP No.23 of 2017 (connected to First Appeal No.2579 of 2021), the deceased was 23 years at the time of the accident and he was serving in AlphaVed Private Limited. His income was urged to be Rs.15,000/- per month. 15,000/- Funeral expenses Rs.19,09,855/- Total 7.2. As the Tribunal has granted, Rs.12,25,100/-, the enhanced amount would come to Rs.6,84,755/-. 8. In MACP No.23 of 2017 (connected to First Appeal No.2579 of 2021), the deceased was 23 years at the time of the accident and he was serving in AlphaVed Private Limited. His income was urged to be Rs.15,000/- per month. The income certificate issued by AlphaVed Private Limited at Exh.27 could not be proved by examining any authorized person, however, on record, the applicants’ degree certificate of BCA and mark-sheet of MCA at Exh.29 was produced to prove his educational qualification. The Tribunal has considered his income as Rs.7,000/- but this Court is of an opinion, taking in view the document at Exh.27 which had been issued by AlphaVed Private Limited and the mark-sheet of MCA with the fact of the date of accident, Rs.9,000/- would be the appropriate amount as to be considered as monthly salary to justify the employment with the private sector with the educational qualification. To that amount, 40% prospective rise has to be granted as per Pranay Sethi (supra) and half of the amount would be deducted for the personal expense. Applying the multiplier of 18, the dependency loss would come as Rs.13,60,800/-. (Rs.9,000/- x 12 = Rs.1,08,000/- + 40% rise i.e. Rs.43,200/- = Rs.1,51,200/- - 50% deduction i.e. Rs.75,600/- = Rs.75,600/- x multiplier of 18 = Rs.13,60,800/-). 8.1. The claimants are parents and hence, Rs.80,000/- is considered as consortium loss as per Magma (supra). 8.2. For loss to estate Rs.15,000/- and for funeral expenses Rs.15,000/- as per the decision of Pranay Sethi (supra). 8.3. Hence, total calculation of the compensation would come as under: Rs.13,60,800/- Dependency loss Rs. 80,000/- Loss of consortium Rs. 15,000/- Funeral expenses Rs. 15,000/- Loss to estate Rs.14,70,800/- Total 8.4. As the Tribunal has granted Rs.10,88,400/-, the enhanced amount would come to Rs.3,82,400/-. 9. In MACP No.24 of 2017 (connected to First Appeal No.1102 of 2020), the deceased was 19 years of age and he was serving on Pavan Motors Garage. His income proof was produced by the claimant at Exh.20 which show his monthly salary of Rs.15,000/-. The learned Tribunal believed his income of Rs.7,000/-. Here, in view of the certificate issued by Pavan Motors Garage, it would be just and reasonable to consider his monthly income as Rs.9,000/-. 9.1. His income proof was produced by the claimant at Exh.20 which show his monthly salary of Rs.15,000/-. The learned Tribunal believed his income of Rs.7,000/-. Here, in view of the certificate issued by Pavan Motors Garage, it would be just and reasonable to consider his monthly income as Rs.9,000/-. 9.1. Thus, considering the same income of the deceased in connection with MACP No.23 of 2017 and MACP No.24 of 2017, with the age group of the deceased, the same employer would be applicable with the corresponding rise in prospective income, half of the amount deducted as personal expenses, adding the consortium amount to the parents and loss to estate with the funeral expenses. 9.2. Hence, calculation in First Appeal no.1102 of 2020 would be the same as of First Appeal No.2579 of 2021, which is as under: Rs.13,60,800/- Dependency loss Rs. 80,000/- Loss of consortium Rs. 15,000/- Funeral expenses Rs. 15,000/- Loss to estate Rs.14,70,800/- Total 9.3. Herein also, as the Tribunal has granted Rs.10,88,400/-, the enhanced amount would come to Rs.3,82,400/-. 10. In all appeals, the enhanced amount is directed to be deposited within a period of six weeks from the date of receipt of writ of this Court. 11. After the amount being deposited, total amount be paid to the claimants concerned with the interest at the rate of 7.5% per annum after due verification of the identity. 12. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received. 13. It has been conveyed to the Court for Mr. Sunil Parikh, learned advocate that no liability would lay on the insurance company, ICICI Lombard General Insurance Company Limited since the owner and insurer of the car bearing registration no.GJ-5-JD-9047 have been exonerated.