Gujarat High Court
Dilipbhai Babarbhai Parmar vs Dilipbhai Ramjibhai Patel on 23 February, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/FA/2648/2021 JUDGMENT DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2648 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
DILIPBHAI BABARBHAI PARMAR
Versus
DILIPBHAI RAMJIBHAI PATEL
======================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
======================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/02/2023
ORAL JUDGMENT
1. Admit. Learned advocate Mr. Maulik Shelat waives service for respondent No. 2. Though served, no one appears for the Page 1 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023 C/FA/2648/2021 JUDGMENT DATED: 23/02/2023 respondent No. 1.
2. Challenge in this appeal under Section 173 of the Motor Vehicles Act, 1988 (MV Act) is to the judgment and award dated 01.10.2019 passed in Motor Accident Claim Petition No. 90 of 2017 (claim petition) by the learned Motor Accident Claims Tribunal (Auxiliary), Kheda at Nadiad (the Tribunal) whereby, against a claim of Rs.5 lakh, the Tribunal has awarded an amount of Rs.2,45,000/- towards compensation.
3. The claim petition was filed on behalf of a minor deceased who, on 23.10.2016, was going as pedestrian and when he reached near the place of accident, a Dumper truck bearing registration No. GJ-2-Z-5316 came in excessive speed, in rash and negligent manner, and dashed with the deceased and the deceased died on the spot.
4. Learned advocate Mr. Hiren Modi for the appellants - parents of the deceased has contended that the Tribunal has failed to consider the fact that the deceased was a minor and he would fall under the category of non-earning person and therefore, second schedule cannot be made applicable for making presumption of notional income. While relying upon Page 2 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023 C/FA/2648/2021 JUDGMENT DATED: 23/02/2023 decisions of the Apex Court in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197, Kishan Gopal and Anr. v. Lala and Ors., (2014) 1 SCC 244, and Meena Devi v. Nunu Chand Mahto, AIR 2022 SC 5006, it is submitted that notional income of Rs.30,000/- is required to be considered and applying a multiplier of 15, compensation as dependency loss should be considered at Rs.4,50,000/-. It is submitted that under the conventional head, as has been awarded by the Apex Court in the list of judgments, should be Rs.50,000/- and therefore, Mr. Modi for the appellant has urged to grant compensation to the tune of Rs.5 lakh.
5. Per contra, learned advocate Mr. Maulik Shelat for the respondent No. 2 placed reliance on the decision of the Rajendra Singh and Ors. v. National Insurance Co. Ltd. and Ors., AIR 2020 SC 3144, to submit that the Apex Court, in the said judgment, placed reliance on Lata Wadhwa's case (supra), Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218, R.K. Malik v. Kiran Pal, (2009) 14 SCC 1, and New India Assurance Co. Ltd. v. Satender, (2006) 13 SCC 60. It is submitted that in the present case, the minor deceased was aged 5 years at the time of death and thus, he urged to deduct 50% amount under the head of personal expenses contending that case of a child aged 5 and 15 years Page 3 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023 C/FA/2648/2021 JUDGMENT DATED: 23/02/2023 would stand on different footings.
6. The learned Tribunal has relied upon a decision of the Apex Court in Reshma Kumari and Ors. v. Madan Mohan and Anr., (2013) 9 SCC 65 and has assessed the compensation as under:
Head Amount (Rs.)
Future loss of dependency 1,35,000/-
Loss of estate 15,000/-
Funeral 15,000/-
Loss of Filial Consortium 80,000/-
Total 2,45,000/-
6.1 In the case of Kishan Gopal (supra), the child was aged
about 10 years and after having considered the proposition of law laid down in Lata Wadhwa's case, the Apex Court considered it just and reasonable to take his notional income at Rs.30,000/-. Further, considering the young age of the parents, a multiplier of 15 was made applicable. Thus, Rs.30,000/- x 15 = Rs.4,50,000/- and Rs.50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Susamma Thomas, (1994) 2 SCC 176, which was referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children Page 4 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023 C/FA/2648/2021 JUDGMENT DATED: 23/02/2023 between 10 to 15 years old. In Lata Wadhwa (supra), the Apex Court has observed as under:
"The compensation determined for the children of all age groups could be double of what is stated in Schedule II to the MV Act, as the determination made was grossly inadequate and further made that the loss of children is irrecoupable and no amount of money could compensate the parents."
6.2 Considering the above observations in Lata Wadhwa's case, the Apex Court goes to observe in Kishan Gopal's case that, "The legal principle laid down in Lata Wadhwa case is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. Further, the deceased boy, had he been alive, would have certainly contributed substantially to the family of the appellants by working hard."
6.3 In the case of Kishan Gopal, deceased child was aged about 10 years who was assisting the appellants in their agricultural occupation which is an undisputed fact. Further, it was observed that had the boy been alive, he would have certainly contributed substantially to the family of the appellants by working hard. In Meena Devi's case (supra), age of the Page 5 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023 C/FA/2648/2021 JUDGMENT DATED: 23/02/2023 deceased was 12 years and a consistent view has been adopted in most of the judgments where the notional income of the deceased children are to be treated as Rs.30,000/- by applying the multiplier of 15, no amount has been deducted under the head of personal expenses of the child and loss of dependency is considered as Rs.4,50,000/- and Rs.50,000/- under the conventional head.
6.4 In Kurvan Ansari @ Kurvan Ali and Anr. v. Shyam Kishore Murmu and Anr., reported in (2022) 1 SCC 317, a child aged 7 years had died in accident. The Court took the notional income as Rs.25,000/- applying multiplier of 15 calculating loss of dependency as Rs.3,75,000/-, addition Rs.95,000/- under conventional heads, awarded Rs.4,70,000/-. The said decision was referred in Meena Devi's case (supra) by applying the principle and ratio laid down in Kishan Gopal's case (supra) and multiplier of 15 in view of decision in Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., (2009) 6 SCC 121, the loss of dependency was considered as Rs.4,50,000/- and Rs.50,000/- was added under the conventional heads, total amount of compensation was considered as Rs.5 lakh.
Page 6 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023
C/FA/2648/2021 JUDGMENT DATED: 23/02/2023
7. For the forgoing reasons, this appeal succeeds and is allowed accordingly. The impugned judgment and award is modified to the aforesaid extent and the claimants are held to be entitled to receive compensation of Rs.4,50,000/- under the head of loss of dependency and Rs.50,000/- under the conventional heads, totalling to Rs.5 lakh. As aforesaid, the Tribunal has awarded an amount of Rs.2,45,000/-. Accordingly, the difference amount of Rs.2,55,000/- (Rs.5,00,000 - 2,45,000 = Rs.2,55,000) shall be deposited by the opponents within six weeks from the date of receipt of writ of this order. The claimants shall be entitled to interest at the rate of 7.5% p.a. on such enhance amount. R&P, if received, be transmitted back forthwith.
[ Gita Gopi, J. ] hiren /PC-2 Page 7 of 7 Downloaded on : Fri Feb 24 20:57:47 IST 2023