UDESINH MADHA vs. INH JADAV

C/SCA/5436/2018 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 5436 of 2018 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE B.N. KARIA ========================================================== 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 ? ========================================================== UDESINH MADHAVSINH JADAV Versus DIPTIBEN YOGESHBHAI JADAV ========================================================== Appearance: MR.HIREN M MODI(3732) for the Petitioner(s) No. 1,2 for the Respondent(s) No. 3,4,5 MR MB GOHIL(2702) for the Respondent(s) No. 1,2 MR. I N MAKRANI(6288) for the Respondent(s) No. 1,2 ========================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 27/02/2019

ORAL JUDGMENT By preferring this petition, the petitioners have challenged the order passed by the learned M.A.C.T. Vadodara in Misc. Civil Application No. 379 of 2018 dated 27.02.2018 distributing the amount of compensation in favour of the petitioners as 15%, who are the parents of the deceased Yogesh Page 1 of 8

C/SCA/5436/2018 JUDGMENT Jadav and 85% to the widow and daughter of the deceased. Short facts of the present case may be summarized as under: On 12.04.2003, son of the petitioner and husband of the respondent no.1 and father of the respondent no.2 namely Yogesh Udesinh Jadav, alongwith his friends, was traveling in the Ford Figo car, bearing registration No. GJ-6-EH-4171 and the said car was driven by the respondent no.3 in rash and negligent manner and lost control over the steering due to excessive speed, and therefore, the said car suddenly turn turtle. The son of the petitioners sustained serious injuries and died on the spot. The present petitioners filed claim petition before the MACT, Vadodara, which was registered as MACP No. 535 of 2013, seeking compensation to the tune of Rs. 45,00,000/-. No petition was preferred by the respondents no.1 and 2 claiming any compensation and after the death of the deceased, she immediately left the house of the petitioners. However, in the claim petition preferred by the petitioners ie., MACP No. 535 of 2013, respondents no.1 and 2 were joined as respondents no.4 and 5 with a view to get their right also. The Page 2 of 8

C/SCA/5436/2018 JUDGMENT learned Tribunal, after recording evidence, passed its award on 28th July 2017 partly allowing the claim petition awarding Rs. 18,27,765/- with 9% interest and cost against the respondents no.3 to 5. Respondents No.1 and 2, thereafter filed Execution Petition No. 290 of 2017 before the MACT claiming to disburse 70% amount to them and 30% to the parents ie., the petitioners. The respondent no.5 has deposited the amount of Rs. 25,60,580/- before the learned Tribunal. The petitioners also filed one MAC M.A. ie., Civil Misc. Application No. 379 of 2018 before the tribunal for distribution of the amount amongst the petitioners and respondents no.1 and 2 and withdrawal of the amount on 17.02.2018. The learned tribunal, after hearing the parties, was pleased to disburse 15% amount to the petitioners and 85% amount to the respondents no.1 and 2 by its order dated 27.02.2018 and out of which, 30% amount was paid by account payee cheque and 70% amount was put into fixed deposit for five years. The petitioners, being aggrieved by and dissatisfied with the order dated 27.02.2018 passed in Civil Misc. Application No. 379 of 2018, have preferred this petition. Page 3 of 8

C/SCA/5436/2018 JUDGMENT Heard learned advocates for the respective parties. Learned advocate for the petitioners has submitted that the petitioners are the parents of the deceased and petitioner no.1 is the father having age of 72 years and retired and he was completely depend on his son. That, instead of 15% amount granted to the petitioner no.1, tribunal ought to have distributed 25% to the petitioner no.1. It was further submitted that the the petitioner no.2 is the mother of the deceased and having age of about 68 years and suffering from left sided stroke and haemorage as well as hyper tension and diabetes. That, on account of her illness, she needs support to walk and do routine work. That, medical expenses has come regularly and she was also dependent upon her son, and therefore, 25% of the amount was required to distribute to her also. That, tribunal has committed serious error in distributing 15% from the amount of compensation awarded to the petitioners, as the respondent no.1 has left the home immediately after the death of son of the petitioners. Hence, it was requested by learned advocate for the petitioners to distribute the amount as prayed for by the petitioners by allowing this petition. Page 4 of 8

C/SCA/5436/2018 JUDGMENT Learned advocate for the respondents has filed affidavit in reply of the respondents no. 1 and 2 and argued that tribunal has committed no error allowing 15% amount in favour of the petitioners and remaining 85% amount in favour of the respondents No.1 and 2, being daughter-in-law and grand daughter of the petitioners. It was further submitted that respondents no.1 and 2 were thrown out by the petitioners after the death of husband of the respondent no.1. That, respondent no.1 is having responsibility towards her minor daughter-respondent no.2 and she has no source of income to maintain the liability of her minor daughter. That, the petitioners are not ready and willing to bear the expenses of the respondent no.2-minor daughter and are not ready to give share in to the property of the deceased. That, the deceased father of the respondent no.2 owned property from his own wherein rights of the respondents no.1 and 2 survives as on date. The details of the property was also given in the affidavit in reply. Under the circumstances, the tribunal has committed no error in distributing the amount and this Court may not interfere in the order passed by the Tribunal. Thus, it was requested by learned advocate for the respondents no.1 and 2 Page 5 of 8

C/SCA/5436/2018 JUDGMENT to dismiss the petition. Having heard learned advocates for the respective parties, in the impugned judgment and order passed by the learned Tribunal dated 27th February 2018, it is mentioned in para 21 that: “Therefore, the amount, which are expenses for the family should be included for the computation of the monthly income of the deceased. From the annual Pay Band of Rs. 1,49,907/-, an amount of Rs. 27,000/- being conveyance allowance and the mobile allowance, which has not been used for the benefit of the family are required to be deducted and it will give a figure of Rs. 1,22,907/-(Rs. 1,49,907=Rs. 27,000) and which can be considered as the yearly income of the deceased. Out of which, 10% is required to be deducted towards income tax. So, it will further reduce down the yearly income to Rs. 1,10,617/- (Rs. 1,22,907- Rs. 12,290). Out of which, keeping in mind, the number of dependents, being 4. Undisputedly, the claim petition was preferred by the parents-present petitioners on sad demise of their son in motor vehicular accident occurred on 12.04.2003. The tribunal was pleased to pass an award in favour of the petitioners and opponents No.4 and 5. As per the submissions made in the claim petition, respondent no.1 left the home of the petitioners after accident and as per the averments made by the respondent no.1 in her affidavit-in-reply, she was driving out Page 6 of 8

C/SCA/5436/2018 JUDGMENT by the present petitioners after accident. The respondents have further contended that the petitioners are not ready and willing to take care of the minor daughter ie., respondent no.2 and her liability would be continued of maintaining her as she has no source of income. True that, there would be more liability on the part of the respondent no.1, being the mother of the respondent no.2 as well as she is the widow of the deceased. The share of the compensation awarded by the tribunal would certainly more and will distribute to her as she has to meet with expenses of her minor daughter, but the fact that the petitioners, being the parents of the deceased aged about 72 years and 68 years respectively as averred by the petitioners and particularly, the petitioner no.2 is suffering from the ailments cannot be ignored by the tribunal. As per the view of this Court, petitioners shall be entitled to claim their share at 30% and remaining share of 70% would come to the share of respondents no.1 and 2. The tribunal has passed the order distributing 15% share to the petitioners and rest of 85% share to the respondents no.1 and 2, which requires to be modified. Learned advocates for the respective parties have Page 7 of 8

C/SCA/5436/2018 JUDGMENT submitted that 70% share of the respondent no.1-daughter-in- law was put in fixed deposit ie., Rs. 12,47,467/-. The petitioners shall be entitled to get more share of 15% and that would come to Rs. 3,81,877/- in addition to the previous amount distributed to them. Amount of Rs. 3,81,877/- lying in a fixed deposit scheme in favour of the respondent no.1 and rest of the amount would be continued in her favour under the FD scheme. The additional amount of Rs. 3,81,877/- shall be fixed by the tribunal on the joint names of the petitioners in any of the nationalized bank for five years along with the interest incurred thereon. The tribunal shall disburse the amount as ordered by this Court within a period of one month from the date of receipt of this order accordingly. The order passed by the tribunal in Misc. Civil Application No. 379 of 2018 dated 27.02.2018 shall be modified. With this observation, this petition is partly allowed and stands disposed of. (B.N. KARIA, J) K. S. DARJI Page 8 of 8