Gujarat High Court
Dilipkumar Raysinh Baria vs Dharmesh Bachubhai Baria on 19 February, 2025
NEUTRAL CITATION
C/FA/3554/2017 JUDGMENT DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3554 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DILIPKUMAR RAYSINH BARIA & ANR.
Versus
DHARMESH BACHUBHAI BARIA & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
ADVOCATE NOTICE SERVED for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/02/2025
ORAL JUDGMENT
1. Challenge in this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short M.V. Act) is against the judgment and award dated 03.06.2017 passed by learned Motor Accident Claims Tribunal (Aux.6) & 6 th Ad-hoc Additional District Judge, Panchmahals at Godhra, in Motor Accident Claim Petition No.986 of 2013, whereby Page 1 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined the learned Tribunal has partly allowed the claim petition.
2. Heard learned advocate Mr.Hiren Modi for the appellants - original claimants and learned advocate Mr.Palak Thakkar for respondent No.3 - Insurance Company. Though served, none appeared for respondent Nos.1 and 2.
3. Brief facts narrated in the present First Appeal are as under:-
3.1 On 09.07.2013, while deceased-Chetankumar was going for tuition, in the evening at about 17.30 hours, he was waiting at correct side of the road, at that time, opponent No.1 - driver of the MAX Jeep bearing registration No.GJ-09-Y-2655 came rash and negligent manner and dashed with Chetankumar. Resultantly, he sustained serious injuries and succumbed due to accidental injuries. Thereafter, complaint was lodged before Morva (H) Police Station being I-C.R.No.52 of 2013 against the Page 2 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined driver.
3.2 The legal heirs of deceased filed claim petition claiming compensation of Rs.7,00,000/- from the opponents including the Insurance Company. Opponent Nos.1 and 2 appeared and filed Written Statement at Ex.10. Opponent No.3 - Insurance Company appeared and filed Written Statement at Ex.17. After considering the evidence and material placed on record, the learned Tribunal partly allowed the claim petition and ordered Opponent Nos.1 to 3 jointly and severally liable to pay awarded amount of Rs.2,35,000/- with proportionate cost and simple interest at the rate of 9% per annum from the date of the claim petition till realization.
3.3 Being aggrieved and dissatisfied with the quantum of compensation, the original claimants have filed present appeal for enhancement of compensation.
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4. Learned advocate Mr.Hiren Modi for the appellants submitted that the deceased was aged about 8 years at the time of accident and Tribunal has failed to consider the fact that deceased was a minor and he would fall under the category of non-earning person. Therefore, Schedule-II of the Motor Vehicles Act, cannot be made applicable for making presumption of notional income.
4.1 Learned advocate for the appellants has relied upon the following decision passed by the Co-ordinate Bench of this Court:
(i) Dilipbhai Babarbhai Parmar Vs. Dilipbhai Ramjibhai Patel in First Appeal No.2648 of 2021 on 23.02.203.
(ii) United India Insurance Co.Ltd Vs.Virabhai Shakarbhai Parmar (Aadivas) in First Appeal No.1664 of 2019 on 11.04.2023.
4.2 In view of the aforesaid decisions and settled principles of law, learned advocate for the appellants has prayed to allow the present appeal.
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5. Per contra, learned advocate Mr.Palak Thakkar for respondent - Insurance Company has submitted that learned Tribunal has awarded just and reasonable compensation on the basis of evidence, which calls for no interference.
6. This Court has considered the submissions canvassed by learned advocates for the respective parties and perused the materials available on record. In the case of Dilipbhai Babarbhai Parmar (supra), in paras 6.1 to 6.4, this Court has observed as under:-
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 5 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined 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 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 Page 6 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined 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.
7. In the case of United India Insurance Company (supra), in paras 7 to 10, this Court has observed as under:
"7. 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 Page 7 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined is awarded even in relation to the death of children 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."
8. 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."
9. 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 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 Page 8 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined of the child and loss of dependency is considered as Rs.4,50,000/- and Rs.50,000/- under the conventional head.
10. 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"
8. In view of the settled principles and order passed by the Co-ordinate Bench of this Court, 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 the following amount of compensation:Page 9 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025
NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined Sl.No. Head Compensation of Rs.
1. Loss of dependency 4,50,000/-
2. Loss of Conventional 50,000/-
Total 5,00,000/-
3. Awarded amount by the Tribunal 2,35,000/-
4. Enhanced amount 2,65,000/-
Interest @9%
9. For the reasons recorded above, following order is passed:
9.1 The appellants-original claimants are entitled to enhanced amount of compensation of Rs.2,65,000/- at the rate of 9% per annum from the date of claim petition till realisation.
9.2 The Insurance Company is directed to deposit the enhanced amount of compensation with interest as above within a period of 6 Weeks from the date of receipt of writ of this order.
10. The present First Appeal is allowed accordingly.
The impugned judgment and award dated 03.06.2017 Page 10 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025 NEUTRAL CITATION C/FA/3554/2017 JUDGMENT DATED: 19/02/2025 undefined passed by learned Motor Accident Claims Tribunal (Aux.6) & 6th Ad-hoc Additional District Judge, Panchmahals at Godhra, in Motor Accident Claim Petition No.986 of 2013, is modified to the aforesaid extent. Record and proceedings, if received, be transmitted back forthwith to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 11 of 11 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 07 2025 Downloaded on : Fri Mar 07 23:02:28 IST 2025