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Judgment
Hasmukh D. Suthar, J
1) Feeling aggrieved and dissatisfied with the judgment and award dated 16.02.2023, passed by the 8th Additional District Judge, Ahmedabad (Rural) at Mirzapur (who shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.796 of 2009, the appellant – opponent no.2 therein – Central Reserve Police Force (who shall hereinafter be referred to as “CRPF”) has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).
2) Heard learned Advocate Mr. S. R. Shukla, for the appellant and learned Advocate Mr. H. M. Modi, for the respondent nos.1 to 3. The respondent no.4 is duly served but remained absent.
Perused the original record and proceedings.
3) It is the case of the original claimants – respondent nos.1 to 3 herein, that on 15.12.2008 the deceased Himanshu Shankarlal Parasiya (who shall hereinafter be referred to as “deceased” for short) was going with his motorcycle bearing Reg. No.GJ-01-DB-5185 and passing over the Girdharnagar over bridge, at that time the opponent no.1 driver of Mazda bearing Reg. No.HR-68-3010 came from wrong side in rash & negligent manner and dashed his vehicle with the motorcycle of the deceased. Due to which the deceased suffered serious fatal injured and during the course of treatment he died on 17.12.2008. Therefore, the claimants had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record has partly allowed the claim petition.
4) The learned Advocate for the appellant has submitted that the learned Tribunal has committed error by not considering contributory negligence on the part of the claimant and also committed error by considering sole negligence of the driver of the ST bus and not properly appreciated the evidence and granted higher compensation to the claimant by applying wrong multiplier. Hence, he has requested to allow the present appeal.
5) The learned Advocate for the appellant has submitted that the learned Tribunal has committed error by saddling the liability and awarded exorbitant compensation to the claimants by wrongly considering the income and addition towards future prospect of the deceased. He has further submitted that the Tribunal also erred in awarding medical expenses. Hence, he has requested to allow the present appeal.
6) Learned Advocate for the respondent nos.1 to 3 has submitted that the learned Tribunal has properly appreciated the evidence produced on record and awarded just and proper compensation and therefore no interference is called for. Hence, he has requested to dismiss the present appeal.
7) Having heard the learned Advocates for the parties and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence based on preponderance of probabilities. The claimant no.1 has tendered the affidavit at Exhibit 19 wherein all the facts of the accident have been narrated in the chief-examination and supported the claim petition. The learned Tribunal has perused the complaint at Exhibit 20, panchnama at Exhibit 21, Inquest Panchnama at Exhibit 22, PM Report at Exhibit 23, charge-sheet at Exhibit 24, affidavit in lieu of examination–in-chief of opponent no.1 at Exhibit 34 and opponent no.2 at Exhibit 33, and after perusing the evidence the learned Tribunal came to the conclusion that due to negligence of the opponent no.1 driver of Mazda the alleged incident took place and the learned Tribunal has not committed any error in deciding negligence of driver of ST Bus.
8) So far contributory negligence is concerned, the opponent no.1 has admitted that there was no divider on the road and he was overtaking one rickshaw going ahead of him and went on the other side of road and thereby it has come on record that at the time of accident he was driving his vehicle on the wrong side and dashed the front part of his vehicle with the motorcycle of the deceased. Moreover, the negligence of the opponent no.1 is also evident from the evidence produced on record. In this regard reference is required to be drawn in the case of Shrikrishna Kanta Singh Vs. The Oriental Insurance Company Ltd., and Ors., Neutral Citation – 2025 INSC 394, hence, arguments canvassed by the learned Advocate for the appellant is not acceptable in absence of any material or evidence on record.
9) Now coming to the quantum part, the claimants have submitted that the deceased was serving as Electrical Engineer at Vihaan System and earning Rs.19,000/- per month and produced Salary Slip for the month of November 2008 at Exhibit 29. As per the said slip gross monthly salary of the deceased was Rs.18,416/-and hence the learned Tribunal has assessed monthly income of the deceased as Rs.18,400/- which is just and proper. Further, as the deceased was aged 29 years at the time of accident on the basis of which the learned Tribunal has considered future prospective income as 40% and as the deceased was having 3 dependents 1/3 deduction towards personal and living expenses of the deceased and multiplier of 17 were considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] which are just and proper. The deceased had sustained fatal injuries and undergone medical treatment at various hospitals and on the basis of the said fact the learned Tribunal has awarded Rs.25,000/- towards medical expenses which is also just and proper and hence does not require any interference by this Court.
10) Further, the learned Tribunal by relying on the judgment of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700, has awarded total Rs.77,000/-under the three conventional heads, however, this Court is of the view that amount is required to be reassessed as Rs.18,150/- towards loss of estate, Rs.18,150/- towards funeral expenses. Therefore, the original claimants are entitled for additional amount of Rs.3,300/- (i.e. Rs.18,150/- - Rs.16,500/-= Rs.1,650/- towards loss of estate and Rs.18,150/- - Rs.16,500/- = Rs.1,650/- towards funeral expenses).
11) Further, in view of ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao Ghorpade & Ors., Vs M/s ICICI Lambord Insurance Company Ltd., reported in 2022 LiveLaw (SC) 666, the learned Tribunal has committed error in awarding only Rs.44,000/- towards loss of consortium, however, in view of above judgments the original claimants being legal heirs of the deceased they are entitled for Rs.48,400/- each towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.1,45,200/- (i.e. Rs.48,400/- X 3). Therefore, the claimants – respondent nos.1 to 3 are entitled for additional amount of Rs.1,01,200/- towards loss of consortium.
12) As discussed above, the original claimants – respondent nos.1 to 3 herein are entitled to get compensation computed as under:
Heads
Awarded by Tribunal
Reassessed by this Court
Loss of dependency
Rs.35,03,360/-
Rs.35,03,360/-
Loss of estate
Rs.16,500/-
Rs.18,150/-
including additional amount of Rs.1,650/-
Funeral expenses
Rs.16,500/-
Rs.18,150/-
including additional amount of Rs.1,650/-
Loss of consortium
Rs.44,000/-
Rs.1,45,200/-
including additional amount of Rs.1,01,200/- (Rs.48,400/- X 3)
Medical Expenses
Rs.25,000/-
Rs.25,000/-
Total compensation
Rs.36,05,360/-
Rs.37,09,860/-
including total additional amount of Rs.1,04,500/-
13) In view of above, as the Tribunal has awarded total compensation of Rs.36,05,360/-, however, as discussed above the claimants – respondent nos.1 to 3 herein are entitled to get additional amount of Rs.1,04,500/- (Rs.37,09,860/- - Rs.36,05,360/-) with proportionate costs and interest as awarded by the learned Tribunal.
14) It is pertinent to note here that in the case on hand though no cross objection is filed by the original claimants but perusing the record prima facie it appears that the learned Tribunal failed to award just and proper compensation and hence keeping in mind the Order XLI Rule 33 of the Code of Civil Procedure and Section 168 of the MV Act and ratio laid down by the Hon’ble Supreme Court in the case of Ravindrakumar Sharma vs. State of Assam reported in (1999) 7 SCC 435 and in the case of Saurav Jain and Another vs. A.B.P. Design and Another reported in (2022)18 SCC 633, no bar to consider the aforesaid fact and modification in absence of cross objection of the claimants.
15) Hence, the present appeal filed by the appellant – Central Reserve Police Force stands dismissed with no order as to costs. The judgment and award dated 16.02.2023 passed by learned 8th Additional District Judge, Ahmedabad (Rural) at Mirzapur, in MAC Petition No.796 of 2009 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The appellant herein – CRPF shall deposit the said additional amount of Rs.1,04,500/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.
16) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.
17) Award to be drawn accordingly.