LAXMIBEN AMRUTLAL PATEL vs. GLOBE TRANSPORT CORPORATION

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 758 of 2011 With R/FIRST APPEAL NO. 759 of 2011 With R/FIRST APPEAL NO. 760 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== NATIONAL INSURANCE COMPANY Versus SURENDRABHAI NAGINDAS GANDHI & 7 other(s) ========================================================== Appearance: MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1 ADVOCATE NOTICE SERVED for the Defendant(s) No. 1,2 MR VC THOMAS(5476) for the Defendant(s) No. 8 RULE NOT RECD BACK for the Defendant(s) No. 5,6 RULE SERVED for the Defendant(s) No. 3,4,7 ========================================================== CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 13/06/2022 COMMON ORAL JUDGMENT Page 1 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1. Feeling aggrieved and dissatisfied by the common judgment and award dated 29.11.2008 passed by the Motor Accident Claims Tribunal (Aux), Panchmahal at Godhra in MACP nos.1843/97, 1844/97 and 1878/97, the insurance Company of the truck involved in the accident has preferred these 3 appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). 2. Same set of evidence is adduced in this group of claim petitions and as all the 3 claim petitions relate to the same accident, all the 3 appeals were heard together and are disposed of by this common judgment and order. 3. Following facts emerge from the record of the appeal:- 3.1 That, the accident took place on 9.11.1997. It is the case of the original claimants that the deceased – Niraj and Ashish were traveling from Vejalpur to Godhra on scooter bearing registration no. GJ-17 B-9915 at about 09:30 a.m. It is further the case of the original claimants that at the time of the accident, both Niraj and Ashish had parked scooter on left hand side near Village Popatpura and were Page 2 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 standing besides the scooter and at that time, truck bearing registration no. HR-45 3305 being driven in a rash and negligent manner dashed with both Niraj and Ashish in such a manner that both of them were thrown apart and both sustained serious injuries. As the record indicates, the deceased Ashish received severe head injuries and Niraj received serious injuries in the abdomen and leg and were admitted to the Civil Hospital, Godhra and succumbed to the same. Record indicates that another person Ashwingiri Gosai also sustained injuries in the same accident. An FIR was lodged with the jurisdictional Police Station at Exh.66. The Claim petitions no.1843/97, 1844/97 and 1878/97 came to be filed by the legal heirs and representatives and dependents of the deceased for compensation as under:- 1 MACP no.1843/97 Rs.21,00,000/- 2 MACP no.1844/97 Rs.13,00,000/- 3 MACP no.1878/97 Rs.7,00,000/- 3.2 In claim petition no.1843/97, one of the claimant came to be examined at Exh.20. It was the case of the original claimants that the deceased – Niraj who happens to be the son of the claimant was 26 years old and was engaged in the vocation of an Accountant and was earning Rs.1,20,000/- per annum. The original Page 3 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 claimants have also relied upon the income-tax returns at Exhs.37 to 39 to prove the income. The Tribunal, after appreciating the evidence on record, determined the income of the deceased – Niraj at Rs.3,000/- per month and gave benefit of prospective income to the tune of 50% and divided the same by 2. The Tribunal further deducted one-third amount towards personal expenses and applying multiplier of 17, awarded a sum of Rs.6,12,000/- as compensation under the head of future loss of income, Rs.20,000/- under conventional heads, Rs.2,500/- towards funeral expenses and Rs.10,000/- towards pain, shock and suffering and while partly allowing the claim petition, awarded a sum of Rs.6,44,500/- with 9% interest per annum from the date of filing of the claim petition till 31.12.2000 and interest at the rate of 7.5% per annum from 1.1.2001 till its actual realization. 3.3 The Tribunal, after appreciating the evidence on record adduced by the claimants in claim petition no.1844/97, considered the oral deposition of the claimant at Exh.20 and also appreciated the evidence that the deceased – Ashish was a Pharmacist and has done course of D. Pharma and was working at Riddhi Siddhi Medical Store at Godhra and was earning Rs.64,000/- per year. The original claimants Page 4 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 also relied upon the documentary evidence, such as certificate of D. Pharma, income-tax returns at Exhs.37 to 41. The Tribunal, after appreciating the evidence on record, determined the income based upon the income- tax returns at Exh.41 which reflects the income for Assessment Year 1996-97 at Rs.74,755/- and applying similar formula of prospective income, deducted one-third towards personal expenses and applying multiplier of 12, awarded a sum of Rs.8,97,060/- as compensation under the head of loss of dependency, Rs.20,000/- towards convention amount, Rs.2,500/- towards funeral expenses and thus, while partly allowing the claim petition, awarded total compensation of Rs.9,19,560/- with 9% interest per annum from the date of filing of the claim petition till 31.12.2000 and interest at the rate of 7.5% per annum from 1.1.2001 till its actual realization. 3.4 Similarly, in claim petition no.1878/97 filed by the dependents and legal representatives of the deceased – Ashwingiri Gosai, the Tribunal appreciated the oral deposition of one of the claimant at Exh.52 and also appreciated the evidence that the deceased – Ashish was working in the Medical Store at Godhra. However, the original claimants admitted that Page 5 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 there is no documentary evidence to show his income. The Tribunal therefore determined income of the deceased at Rs.2,000/- in the same manner and awarded prospective income and after deducting one-third towards personal expenses, applying multiplier of 14, awarded sum of Rs.3,36,000/- as compensation under the head of loss of dependency, Rs.20,000/- towards conventional amount and Rs.2,500/- towards funeral expenses and while partly allowing the claim petition, awarded total compensation of Rs.3,58,500/- with 9% interest per annum from the date of filing of the claim petition till 31.12.2000 and interest at the rate of 7.5% per annum from 1.1.2001 till its actual realization. Being aggrieved by the same, the insurance Company of the truck has preferred these appeals, as aforesaid. 4. Heard Dr. Rushang Mehta, learned advocate for the appellant, Mr. Mohsin Hakim, learned advocate for the original claimants and Mr. V.C. Thomas, learned advocate for the insurance Company of the scooter involved in the accident. 5. Dr. Mehta, learned advocate for the appellant contended that in First Appeal no.758/11 arising out of MACP no.1843/97, the Tribunal has wrongly applied multiplier of 17. Relying Page 6 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 upon the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, it was contended by Mr. Hakim that as the age of the deceased was 26, appropriate multiplier would be that of 16 and not 17. Similarly, in the other two appeals also, Dr. Mehta contended that the Tribunal has awarded excess amount and even though the deceased was an unmarried person, has deducted one-third instead of one- half. Dr. Mehta also contended that the Tribunal has also erred in considering the prospective income in all the 3 appeals. On the aforesaid grounds, it was contended that the appeals be allowed and the impugned common judgment and award be modified by allowing the appeals as prayed for. 6. Mr. Mohsin Hakim, learned advocate for the original claimants in all the appeals, contended that the Tribunal has awarded just, adequate and proper compensation. Mr. Hakim further submitted that as per the judgment of the Hon'ble Apex Court in the case of United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130 and New India Assurance Company Ltd. Vs. Somwati, reported in (2020) 9 Page 7 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 SCC 644, on the contrary, the original claimants would be entitled to appropriate amount of compensation under consortium. Mr. Hakim further contended that in all the 3 cases, the Tribunal has also awarded lesser amount for funeral expenses which in fact could have been enhanced. Mr. Hakim, however, contended that as the original claimants have not preferred any appeal or cross objection, considering the amount awarded as just and adequate, the appeals deserve to be dismissed. 7. Mr. V.C. Thomas, learned advocate for the insurance Company of the scooter involved in the accident, contended that the Tribunal has rightly considered the aspect of negligence and has correctly exonerated the insurance Company of the scooter. According to Mr. Thomas, Tribunal has awarded just and adequate compensation and no modification is required. According to Mr. Thomas, the appeals deserve to be dismissed. 8. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties. 9. Upon considering the submissions made, the only question which arises in these 3 appeals Page 8 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 is whether the Tribunal has awarded any excess amount as compensation or not? 10. In First Appeal no.758/11, even if the contention raised by Dr. Mehta is accepted that the multiplier should have been 16 instead of 17 even as per the binding decision of the Hon'ble Apex Court in the case of Sarla Verma (supra), the fact remains that the Tribunal has awarded a meager amount of Rs.20,000/- as conventional amount and following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, Satinder Kaur (supra), Somwati (supra) and Magma General Insurance Company Limited (supra), all the claimants would be entitled to consortium of Rs.40,000/- each. However, in absence of any cross appeal/objection filed by the claimants, such enhancement cannot be granted by this Court in the appeal filed by the insurance Company. Thus, in First Appeal no.758/11, on the contrary, the claimants would be entitled to more amount than what is awarded. We are therefore of the considered opinion that what is awarded by the Tribunal is just, adequate and proper and not in excess as contended by the appellant. Similarly, in First Appeal no.759/11, even if the contention of Dr. Mehta Page 9 of 10

C/FA/758/2011 JUDGMENT DATED: 13/06/2022 is accepted that the deduction has to be one- half as the deceased was Bachelor and in First Appeal no.760/11, similar contention is accepted and in both the cases, applying the ratio laid down by the Hon'ble Apex Court in the cases of Pranay Sethi (supra), Satinder Kaur (supra), Somwati (supra) and Magma General Insurance Company Limited (supra), we find that the claimants would be entitled to further compensation than what is awarded. In addition to this, in First Appeal no.759/11, even the Tribunal has applied lesser multiplier than applicable. If appropriate multiplier is applied, the compensation would be enhanced considerably. 11. In light of the aforesaid, we hereby hold that the compensation granted in all the 3 claim petitions are just, adequate and proper and no modification is required. The appeals are bereft of any merit and are hereby liable to be dismissed and are hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA,J) (SANDEEP N. BHATT,J) Maulik Page 10 of 10